An opinion by the Legal Clinic on Migration and Rights of the University of Palermo

With the Decree-Law of March 10, 2023, no. 20, “provisions regarding the legal entry flows of foreign workers and the prevention and countering of irregular immigration” were introduced, declared to be of “extraordinary necessity and urgency”.

Given that:

• Following a tragedy at sea like the one in Cutro, preceded by countless others and already followed by even more, the main urgency should have been to provide adequate rescue measures at sea, to open effective legal entry channels, and to increase humanitarian corridors; none of these measures are contained in the decree in question.
• The increase in “quotas” provided by the decree remains within the mechanism of Law no. 189 of 2002, better known as the Bossi-Fini law. Its premise of remote hiring has proven to be an utter failure over the last twenty years; furthermore, due to the link between residence permits and employment contracts, it has increased people’s vulnerability to labor exploitation, perpetuating their position of constant blackmail.
• Even the “extra-quota” entries provided are in no way accessible for people fleeing conflicts and situations of widespread insecurity in their countries of origin and transit.
• The extension of the duration of residence permits provided by the decree does not cover those for fixed-term subordinate work, which would most need protection, but only those for open-ended and self-employment, and for family reunification.
• The increase in detention times in administrative detention centers, as well as the increase in the number of these centers, perpetuates and strengthens an institution that has proven, since 1998, to be extremely costly in terms of human rights violations and economic resources, and quite ineffective regarding the stated objective of expelling people irregularly present in the territory.
• The increased penalties for “crimes related to irregular immigration” do not affect the international trafficking of human beings. The organizers—who do not board vessels often destined to shipwreck—appear instead to act in proximity to the powers of transit countries, such as Libya, with which Italy continues to sign or renew agreements.

The measure provided in Article 7 of the decree, which intervenes in the matter of special protection, appears particularly worrying. This form of protection was introduced by Law no. 173 of 2020 to repair the serious damage caused by the cancellation of humanitarian protection by Decree-Law no. 113 of October 4, 2018.

These forms of protection, recognized by jurisprudence as suitable for complying with our constitutional obligations regarding the protection of human rights, are those that have allowed the legality of stay in Italy for the majority of protection seekers in our country.

The cancellation of humanitarian protection in 2018 resulted in the impossibility for thousands of people with solid family and social ties in Italy and a significant level of social inclusion to obtain or renew their residence permits. This included young adults who arrived as unaccompanied minors and had started educational and employment integration paths. They ended up in a situation of irregularity, and therefore of marginalization, exploitation, and abuse.

Our help desk, active since 2015 at the Department of Law, experienced the difficulties of that period firsthand, often finding itself simply having to communicate to these people that there was no legal way to guarantee their rights. It is no coincidence that 2019 was the annus horribilis for the court sections specialized in immigration, international protection, and free movement of EU citizens, during which appeals increased exponentially.

We have already seen how this measure effectively produced illegality and insecurity throughout the national territory, making the stay of people perfectly integrated in our country irregular. It also entailed extremely high judicial costs and human rights violations, eventually prompting the subsequent government to introduce a new form of special protection. This allowed for at least a partial remedy of the damage caused, in line with Article 8 of the European Convention on Human Rights, which protects the right to private and family life.

In light of all this, the introduction of a new measure aimed at restricting, if not eliminating, special protection—as some statements by government officials lead us to fear—appears entirely unreasonable regarding the stated goals of promoting legality and security. Furthermore, it is incompatible with the respect for obligations arising from constitutional and international law, which Article 117 of our Constitution equates to the rank of primary source.

Specifically, the “Cutro Decree” cancels the following periods:

The rejection or expulsion of a person toward a State is also not permitted if there are grounded reasons to believe that the removal from the national territory involves a violation of the right to respect for one’s private and family life, unless it is necessary for reasons of national security or public order and safety. For the purpose of assessing the risk of violation referred to in the previous period, account is taken of the nature and effectiveness of the interested party’s family ties, their effective social integration in Italy, the duration of their stay in the national territory, as well as the existence of family, cultural, or social ties with their country of origin.

It appears incomprehensible why it would be of extraordinary necessity and urgency to push people who are already socially integrated—with family, cultural, and social ties in Italy much stronger than in their country of origin—into illegality and the darkness of so-called “clandestinity”.

We therefore appeal to the Italian government so that, during the conversion of this decree into law, it abandons the direction taken. We urge the government to commit to developing measures relating to immigration and asylum based on reasonableness and respect for the law and the rights not only of people in migration but also of Italian citizens.