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Italian Immigration Law: For the Common Good?

JURIST Special Guest Columnist Archbishop Agostino Marchetto of the Vatican's Pontifical Council for the Pastoral Care of Migrants and Itinerant People says in light of recent Italian legislation on immigrants that while states have the right to control their borders, they must also consider justice and the universal common good....


The Italian Parliament recently passed a law regarding public security (Law no. 94 of 15 July 2009) which also regulates immigration into the country and provides norms regarding the condition of foreigners therein. There has been much debate regarding the provisions of the new law and the votes cast leading to its approval were far from unanimous. I myself have expressed a very critical view on this matter.

Public opinion regarding the presence of immigrants in the country has recently been fed with media reports on atrocious crimes committed by foreigners, exacerbating feelings of insecurity, fear, and even xenophobia among Italians. However, those who are benefiting from the services of immigrants, in the care for children and the elderly, in domestic work and other blue collar jobs that fewer and fewer Italians are willing to do, claim that injustice is being done to them in not reporting these aspects as well. Mass media operators have to take their responsibility in this regard.

Today, Italy, which has been considered the “least fortress” among the countries in fortress Europe, is fast approaching the hard line that other states in the continent have long adopted and is even surpassing them.

Before entering into the merits (demerits, I should say) of the law in question, it is important to mention very briefly the world situation and the context in which emigration and immigration are taking place today.

In his report to the General Assembly of the United Nations on 9th September 2002, two years after the Millennium Declaration was adopted, then Secretary General Kofi Annan affirmed that “it is time to take a more comprehensive look at the various dimensions of the migration issue, which now involves hundreds of millions of people and affects countries of origin, transit and destination” and that “we need to understand better the causes of international flows of people….”

It does not require a great effort to know that today people are fleeing from their countries due to wars, violence, violation of human rights, or famine, and other natural or man-made catastrophes. There are also those who leave their countries to be able to provide for their needs and those of their families, or simply to find better opportunities abroad. When they approach our national borders, do we ask what reasons moved them to be there, or are we so biased that we immediately regard them with suspicion and consider them a potential danger or threat, as our Instruction Erga migrantes caritas Christi (The love of Christ towards migrants) warned against? I certainly do not mean to disregard the fundamental distinction and difference in legal treatment, as far as international law is concerned, between migrant workers, and refugees and asylum seekers. This disregard for differences was evident in the last cases of refoulement ordered by the Italian government to be inflicted on the people who were traveling by boat from the African coast towards Italy. We know that the principle of non-refoulement is essential in the protection of persecuted people.

In any case, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by the UN General Assembly resolution 45/158 of 18 December 1990 and in force since 1 July 2003, points out that “the human problems involved in migration are even more serious in the case of irregular migration” (Preamble). It therefore encourages “appropriate action … in order to prevent and eliminate clandestine movements and trafficking in migrant workers” (ib.). It is worth noting that the measures it deems should be taken, within the jurisdiction of each State concerned, are not directed to irregular migrants, but to those who cause the phenomenon. It in fact calls for “appropriate measures against the dissemination of misleading information relating to emigration and immigration” and the imposition of “effective sanctions on persons, groups or entities which use violence, threats or intimidation against migrant workers or members of their families in an irregular situation” (art. 68). It instead urges signatories to assure the protection of the fundamental human rights of irregular migrants (Preamble).

Indeed, it affirms that “every migrant worker and every member of his or her family shall have the right to recognition everywhere as a person before the law” (art. 24) and that appropriate measures should be taken “to ensure that migrant workers are not deprived of any rights … by reason of any irregularity in their stay or employment.”

The new Italian law, on the contrary, has tightened the norms related to the irregular status of foreigners, and has transformed irregular migration into a criminal offence instead of the administrative breach that it used to be. This change has significant repercussions in the concrete life of the migrant and his family. I consider it an “original sin” in the legislation on migration. To start with, it will be difficult for the irregular migrant to find lodging, since whoever rents an apartment to people in his condition runs the risk of imprisonment. It will be difficult if not impossible for him to send remittances back home through money transfer services, since this requires the presentation of a regular permit to stay in the country. This is a serious concern for the welfare of the families who have stayed behind in the home country and also deprives their countries of origin of that income that their poor economies badly need.

The new law does not seem to be “family-friendly”. Since all legal acts regarding the civil status requires the presentation of a regular permit to stay, an irregular migrant cannot be registered as a parent of a child who may even have a legal status in Italy. The child will therefore have to be identified as one with unknown parent(s). The authoritative financial newspaper “Sole 24 Ore” recently published, in its August 3rd issue a whole page on the serious problems deriving from the new law that will need to be solved.

The same permit is necessary to be able to get married even to an Italian citizen. In its absence marriage has to be postponed, or celebrated abroad where marriages can be solemnized without an Italian permit to stay. However, the non-Italian party can become an Italian citizen only after two years of residence in Italy, or after three years of residence abroad. Fortunately, the presence of children, even adopted ones, can shorten the period of waiting by half. Questions regarding marriages are particularly sensitive for the Church in Italy because of the civil recognition given to religious marriages.

Another point is the option for doctors to report to the authorities the presence of irregular migrants in the territory. The latter would be scared to approach public health services. This would make them vulnerable to clandestine health care, exposing them to unsafe services, jeopardizing not only their own health but also that of the people around them, including Italians.

Under the new law, an immigrant, whose permit to stay for employment reasons is not renewed within a period of six months, will be canceled from the National Register. Moreover, all those who have no fixed dwelling cannot be entered into the National Register. For civil purposes, these individuals do not exist. “Clochards” are instead obliged to be included in a special list at the Ministry of the Interior.

Certainly, States have the right to control their borders and make sure that it is not a porous entry for criminals, who may also take advantage of the misery and desperate conditions of would-be immigrants. However, justice and solidarity are not antonyms, they come hand in hand, just like public security and welcome. National common good, in any case, has to be considered in the context of the universal common good.



Archbishop Agostino Marchetto is the secretary of the Vatican's Pontifical Council for Pastoral Care of Migrants and Itinerant People and Titular Archbishop of Astigi

August 14, 2009


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