migrest inglese 16-05-2005 14:54 Pagina 12

the legislative
framework
migrest inglese 16-05-2005 14:54 Pagina 14

the legislative framework 14 15

The Legislative Framework13 between judicial and police authorities, also concerning citizenship,
immigration and asylum.
The Article 100 – which is the legal basis for adopting Community measures
concerning visas – is included by the Maastricht Treaty within the first pillar
(in the TEC). The third pillar’s topics are regulated within the Title IV of the
TEU. Therefore, they turn from “informal” cooperation to an institutionalised
system, with proper procedures and institutional roles through which coop-
Immigration in the European Union eration is expressed. Instruments to be used are the intergovernmental
The juridical status of third-country nationals and admission conditions in ones: common positions, common actions and conventions, all of them
national territory – i.e. borders’ control – are regulated by national laws, rep- without any direct legal efficiency in the States’ regulations.
resenting a typical manifestation of national sovereignty. In 1999, with the entry into force of the Treaty of Amsterdam, regulations
Therefore, the European Union’s extension of competence in terms of immi- concerning immigration, asylum, internal and external borders checks and
gration and asylum represents an extremely interesting and relevant innova- civil judicial cooperation are transferred from third to first pillar. Title IV of
tion for Member States’ regulations. the TEC (Articles 61 to 69), which foresees an action plan to implement
Before entering into EU’s legal framework on immigration matters, it is nec- within 2004 an “Area of Freedom, Security and Justice”, becomes the juridi-
essary to retrace its institutional development over the years. cal basis to adopt community regulations defining a common legal frame-
The Treaties of Rome (1957), in fact, did not foresee any disposition on work for Member States.But “communitisation” is partial: in fact, topics
juridical status, except for Member States national workers’ free movement which are mostly linked to law and order and to penal justice remain within
right. Only since 1986, with the Single European Act, the objective of abol- the third pillar’s (Title VI TEU) framework.
ishing, within January 1st 1992, internal borders’ controls, (i.e. between two Legislative procedures to introduce TEC measures are quite complex. They
Member States) is introduced in the Treaty, to guarantee within the European also reflect the Member States’ dilemma to yield important parts of their
territory, free movement of people, goods, services and capitals; therefore, own sovereignty. Generally, as for Title IV, – except for paragraphs 3a and 4
the need for cooperation towards an efficient external borders’ control and of Article 63 –, the Treaty of Amsterdam makes a distinction between, on the
the harmonisation of national regulations on third-country nationals’ admis- one hand,the first five years following the entry into force of the Treaty
sion conditions emerges. It’s a matter of intergovernmental cooperation, (1999-2004). During this period, the Council decides unanimously, upon
which produces instruments of public international law (treaties, conven- the Commission’s initiative and following the European Parliament’s opin-
tions)14 but not yet community regulation, since the European Community ion. On the other hand, the distinction concerns a successive period, during
still did not have jurisdiction on the matter. which, the legislative initiative belongs exclusively to the Commission. The
In 1992, the Maastricht Treaty modified the institutional structure of the Council, unanimously and following the European Parliament’s opinion
Communities, with the transition from the European Community to the could decide to operate with a qualified majority, following Article 251 TEC
European Union. The Treaty on European Union (TEU) is undersigned. procedure (so-called co-decision). Moreover, the Court of Justice’s jurisdic-
Together with the Treaty establishing the European Community (TEC), they tion is always excluded as for measures concerning security, law and order
represent the organisation’s legal framework, which has a complex structure, and topics within Article 62, paragraph 1; i.e. EU’s internal borders crossing
based on “three pillars” 15: by EU and third-country nationals.
> the “first pillar” is the European Communities, i.e. a series of topics Following the entry into force of the Treaty of Nice on February 1st 2003,
embodying Community jurisdiction, regulated by the TEC and by derived the Council brought forward the use of qualified majority decisions in com-
Community law; pliance with Article 251 procedure, with reference to the above-stated five
> the “second pillar” is the CFSP, Common Foreign and Security Policy; years period.
> the “third pillar” is given by Justice and Home Affairs, i.e. cooperation In 2004, an evaluation on results achieved by implementing Title IV TCE’s
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the legislative framework 16 17

dispositions was carried out. In particular, the Commission’s Communication Europe do so to join a relative who already resides in the European territo-
COM (2004) 4002 of 2/06/2004 underlined that the late adoption of leg- ry. There is also a sociological important aspect of this phenomenon:
islative instruments and the unsuccessful fulfilment of set objectives largely through family reunification, migrants can recreate their original or elective
depended on limitations within the decisional process and institutional con- family, increasing the sense of attachment in the country of destination and
text which inhibits rapid, effective and clear acquisition of some political the probability of integration in the society. In turn, societies must recognise
commitments. This critical evaluation was shared by the Council, which new cultural and familiar models, which can be quite different from the
extended, by Decision 22/12/2004 (OJ L 396/45 December 31st 2004), usual ones. Finally, immigration through reunification is considered as a
unanimity and co-decision action to almost all topics concerning Title IV, “secondary” immigration in regard to the family member who already
except for measures related to entry and residence of third-country nationals resides in the country of destination and applies for his/her relative’s stay
for the purpose of paid employment, as well as regulation on asylum, under permit: while “primary” immigration is controlled by the Member State, “sec-
the condition that a community law framework is adopted for this topic. ondary” immigration is not, since national governments cannot directly
As for immigration and asylum, the above represents the juridical basis for decide on who and how many people can enter the country, but they can
EU’s action, whereas political guidelines are established by the Council only regulate this type of migration flows through the identification of reuni-
through five-year period action programmes. To this day, two action pro- fication modalities.
grammes were adopted. The programmes are usually named with reference The purpose of the Directive is to determine the conditions for the exercise
to the location where the Council gathers when they are adopted: 1999 of the right to family reunification by third-country nationals residing lawful-
Tampere Programme and 2004 The Hague Programme16. ly in the territory of Member States. This Directive shall not apply to non-EU
The Tampere Programme, which foresaw the adoption of a common juridi- nationals family members of Union citizens since their conditions are regu-
cal framework within May 1st 2004, included – strictly as for immigration17 lated by the dispositions on the right of EU citizens to move and reside freely
– the following aspects: within the territory of the Member States19.
> partnerships with migrants and asylum seekers’ countries of origin, A third-country national, holding a residence permit issued by a Member
to achieve coherence between European external relations policies State for a period of validity of one year or more who has reasonable
and immigration and asylum management; prospects of obtaining the right of permanent residence can apply for fam-
> fair treatment of third countries nationals who legally reside ily reunification (Article 3). The Member State may ask for further require-
in the European Union; ments (Article 7), inviting the person who has submitted the application to
> effective and common management policies of migratory flows of each provide evidence that he/she has an accommodation, sickness insurance,
Member State (taking into account the national competence concerning stable and regular resources. Article 8 foresees the possibility for Member
admission quotas’ determination), including also technical assistance States to introduce further and consistent limitations: Member States may
and cooperation against illegal immigration and related crimes. require that the person who submits the application must reside lawfully in
Among the Tampere Programme’s18 approved or discussed regulatory texts, the territory for a consistent period (at least a period not exceeding two
three directives and one proposal must be pointed out. They identify (or sug- years) and that a waiting period of no more than three years may occur
gest) minimum standards which national legislation must adapt to. between submission of the application for family reunification and the issue
a) Council Directive 2003/86/EC of 22 September 2003 on the right to of a residence permit to the family members.
family reunification (OJ L 251/12, 3/10/2001) Member States shall authorize the entry of the following family members:
Member States shall bring into force the laws, regulations and administra- the applicant’s spouse and his/her minor children including adopted chil-
tive provisions necessary to comply with this Directive by not later than 3 dren. Member States may require further conditions: in order to ensure bet-
October 2005. ter integration and to prevent forced marriages (Article 4.5), Member States
Family reunification is an extremely important matter for three reasons. may ask the applicant and his/her spouse to be of a minimum age, and at
Firstly, for the quantitative matter: at this day, 30% of migrants entering maximum 21 years, before the partner is able to join him/her. Moreover,
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the legislative framework 18 19

Member States may request that applications concerning family reunifica- Family Life – before the Court of Justice, to annul the directive 2003/86/CE
tion of minor children must be submitted before the children are 15 years for it crosses the fundamental principles stated in Article 6 of the TEU. In
old (Article 4.6). particular, and according to the thesis adopted by the EP, the directive vio-
In regard to the different family cultural and juridical models, important dis- lates Article 8 of the European Convention as far as the respect for family
cussions on the signification of “relative” admitted to apply for reunification life is concerned and it also violates the Convention on the Rights of the
have been carried out during the Directive’s drafting phase. The discussion Child as far as the limitations on children reunification are concerned. The
reached to a compromise that foresees a lowest common denominator stat- trial has not yet come to an end. This is a very important matter since it rep-
ed by Article 4, although Member States can authorize the admission of resents a great signal of democracy and sensitivity of the European
adult unmarried children or first-degree relatives in the direct ascending Institutions towards the civil society’s requests and because the directive’s
line, where they are dependent on the non-EU national resident in the annulment would create a severe regulation gap in the European juridical
Member State or on his/her eventual unmarried partner with whom he/she framework on immigration.
is in a duly attested stable long-term relationship. In the event of a polyga- b) Council Directive 2003/109/EC of 25/11/2003 concerning the status
mous marriage, Article 4.4 foresees the right for the Member State to refuse of third-country nationals who are long-term residents (OJ L 14/44 of
authorisation to the family reunification of a further spouse in regard to the 3/01/2004)
spouse who is already living with the applicant in the territory of the Member This directive must be transposed into national legislation within
State. The Member State may also limit the family reunification of the appli- 23/01/2006.
cant and his further spouse minor children 20. The directive does not prevent Member States to apply more favourable
As soon as family member or members enter the territory, the Member State national regulations on residence permits. But Article 13 foresees that, in
shall grant a first residence permit of at least one year’s duration which shall any case, such more favourable residence permits shall not confer the right
in principle not go beyond the date of expiry of the residence permit held by of residence in another Member States.
his/her spouse. Before explaining the regulation in details, it is important to underline that
Not later than after five years of residence, the relative (even in case of wid- the community legislator had to make a choice concerning method: one the
owhood, divorce or death of the partner) shall be entitled to an autonomous one hand, the conditions of third-country nationals who are long-term resi-
residence permit.The requirements will be regulated by national regulation.The dents could have been equalized to those of EU citizens, except for specif-
reunified family members shall be entitled, in the same way as the non-EU ic derogations; or, on the contrary, they could have been differentiated by
national resident, to access education, employment and training (Article 14). listing the specific rights attributed to third-country nationals 21.
Article 17 imposes that, in the case Member States reject an application, The directive 2003/109/EC chooses the second method. Chronological cri-
withdraw or refuse to renew a residence permit or decide to order the teria are the principal criteria for granting a long-term resident status to
removal of a non-EU national resident or members of his family, Member third-country nationals. In fact, Member States will grant the status to third-
States shall take due account of the nature and solidity of the person’s fam- country nationals who have resided legally and continuously within the ter-
ily relationships and the duration of his residence in the Member State and ritory for five years immediately prior to the submission of the relevant
of the existence of family, cultural and social ties with his/her country of ori- application (Article 4). Other additional conditions are also requested: long-
gin. It is a very interesting disposition since it gives a regulation status to term resident must provide evidence that he/she has stable and regular
decision criteria adopted by the European Court for Human Rights in the last resources which are sufficient to maintain himself/herself and the members
10 years, on decisions concerning the respect for private and family life, of his/her family and sickness insurance (Article 5). Moreover, the applica-
stated in Article 8 of the European Convention of Human Rights. tion can be refused on ground of public policy or public security (Article 6):
On December 22nd 2003, the European Parliament responded to the in such case, when taking the relevant decision, the Member State shall
appeal launched by many European NGOs – among which Amnesty interna- consider the severity or type of offence against public policy or public secu-
tional, ECRE, Caritas Europa, European Coordination for Foreigner’s Rights to rity, or the danger that emanates from the person concerned, while also hav-
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the legislative framework 20 21

ing proper regard to the duration of residence and to the existence of links Chapter II of the directive provides the admission conditions of third-country
with the country of residence (as in the directive on family reunification, the nationals: they shall be subject to the verification of documentary evidence
Court of Justice’ juridical criteria are taken into account); the same criteria showing that they meet the conditions laid down in the specific articles con-
are also applied in the case of expulsion (Article 12). cerning the categories of student, unremunerated trainee or voluntary. A res-
Standard procedures are suggested for the application and the issuing of idence permit shall be issued for a period of at least one year and renewable
the long-term resident permit, which is a permanent permit (Articles 7 and if the holder continues to meet the issuing conditions (Article 12).
8), and can be withdrawn only in the cases and following the methods and d) Proposal for a Council directive COM (2001) 386 of 11/07/2001 on
the guarantees stated in Articles 9 and 10. the conditions of entry and residence of third-country nationals for the pur-
As for the contents of the status, Article 11 provides that long-term residents pose of paid employment and self-employed economic activities
shall enjoy equal treatment with nationals in regard to: The directive on the crucial matter concerning the conditions of entry for
> access to employment and self-employed activity; employment purpose is the only one that wasn’t adopted, since the May 1st
> education and vocational training; 2004 deadline has not been respected. In particular, while the other insti-
> recognition of professional diplomas, certificates and other qualifications; tutions gave positive opinions 22, the Council only gave the proposal a first
> social security, social assistance and social protection; reading.
> tax benefits; Following the recommendations of the Thessaloniki Summit (June 2003)
> access to goods and services and the supply of goods and services made and of the Brussels Summit (June 2004) for a European efficient common
available to the public and to procedures concerning lodging obtaining; immigration policy, taking into account the reception capacities of Member
> freedom of association and affiliation and membership of an organisation States, the Commission recently published a Green Paper on EU approach
representing workers or employers or any other professional business organ- to managing economic migration, COM (2004) 811 of 11/01/2005. This
isation; Paper concerns fundamental issues on economic migration management.
> freedom to access the entire territory of the Member State concerned. The aim of the paper is to launch a process of in-depth discussion involving
Article 14 provides that a long-term resident shall acquire the right to reside EU institutions and other stakeholders in order to revitalize the pathways
in the territory of Member States other than the one which granted him/her towards the approval of a legislative framework on entry conditions and
the long-term residence status, for a period exceeding three months by apply- juridical status of economic migrants.
ing for a residence permit to the competent authorities of the second Member The Green Paper disputes the proposal COM (2001) 386, which based itself
State. The latter may examine the situation of its labour market and apply its on two principles: the first one is the “Community preference principle”:
national procedures: a long-term residence permit in the first Member State third-country nationals can be employed only where vacancies in a Member
does not automatically justify a favour condition in the second Member State. State cannot be filled by national or community manpower, and except for
c) Council Directive 2004/114/CE of 13/12/2004 on the conditions of eventual international law obligation. The second principle concerns the
admission of third-country nationals for the purpose of studies, pupil right to obtain a stay permit for employment purpose for third-country
exchange, unremunerated training and voluntary service (OJ L 375/12 of nationals who apply for such permit in their own country of origin while in
23/01/04) possession of a valid labour contract or a valid labour offer in a Member
This directive must be transposed into national legislation within State. The permit only allows exercising the activity for which it has been
12/01/007. issued, i.e. paid employment, self-employed economic activities or season-
This directive determines the conditions for admission of third-country nation- al employment. The holder of such permit has the following rights: the right
als for the purposes of studies, pupil exchange, unremunerated training or vol- to enter, reside and return in the Member State; the right to transit through
untary service and it shall not apply to third-country nationals whose status is another Member State to enter the State which issued the permit; third-
regulated by other dispositions (Article 3), such as refugees or asylum-seek- country nationals shall enjoy the same treatment as EU citizens as for
ers, family members of Union citizens and long-term residents. labour conditions, freedom of association and the right to trade union pro-
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the legislative framework 22 23

tection, to professional training, social security and access to health, hous- > External borders efficient control, based on principles of solidarity and
ing and other public services. shared responsibilities, including financial responsibility of Member States;
Probably, this proposal will be subject to important amendments during the > Integration of migrants in the host society, through the creation of equal
decision-making process. In fact, the Green Paper challenges many aspects opportunities, with a comprehensive approach involving institutions and
of its contents. First of all, the Commission is faced with the option of adopt- stakeholders at local and regional level. For this purpose, the Council lists
ing a general regulation which covers the conditions of entry and residence some common integration principles which are defined as a continuous and
of any third-country national exercising employed or self-employed activities two-way process, involving both legally resident third-country nationals and
(the horizontal approach) or adopting different regulations for different work- the host society;
ers’ categories (the sectoral approach). The advantage in this case would be > Coherence between asylum and immigration policies and EU External
an easier adoption of common rules, as for the directive on the admission Relations through partnerships with third countries, especially migrants’
conditions of students, trainees and voluntaries. The Green Paper also takes countries of origin and countries of transit ;
into consideration the option of a common fast-track procedure in cases of > Need to establish minimum common standards on return policy, in order
specific labour or skill gaps. to guarantee the rights and dignity of migrants.
What degree of harmonisation should the EU aim at? This is the funda- The Hague Programme recalls the fundamental aspects in regard to the
mental question, while it is important to recall that, as for admission and 1999 Tampere agenda, already stated in the Commission’s Communication
residence conditions policies, they are subject to unanimous voting proce- COM (2004) 4002 of 2/06/2004 on Area of Freedom, Security and
dures until the adoption of the European Constitution. It is then likely that Justice: Assessment of the Tampere programme and future orientations.
the current no-go situation will last for a while. These aspects are, for example, the tardiness of decision-making processes
Moreover, while adopting the comments included in the ESC opinion and the lack of a common approach for migration flows management. As far
referred to in the note n.8, the Commission is faced with the following ques- as the first aspect is concerned, the Council, with its decision of
tion: is the admission procedure linked with the possession of a valid work 22/11/2204 extended the co-decision procedure to almost all decisions
contract or a binding offer excessively rigid and could it realise a legal immi- concerning immigration and asylum. As for migration flows management, the
gration procedure difficult to put into practice? The solution could be the Green Paper reveals its receptiveness in regard to solutions which simplify
possibility for Member States to admit job seekers, in order to favour the legal immigration methods. Hopefully, in the next five years, the Programme
meeting of labour supply and demand in the Member State territory. will be implemented, creating the basis for migrants’ correct admission and
Finally, the Commission asks if the enjoyment of specific rights should be integration while, also stimulating national legislators to that end.
conditioned to a minimum stay. If so, which rights would be concerned and
for how long should the stay be? In which measure could there be a differ- Immigration and the European Union Enlargement
entiation between a temporary stay permit holder and a long-term third- May 1st 2004 was a very important step towards the European integration
country national resident? If we recall the directive 2003/109/EC and we process: ten new countries (Cyprus, Estonia, Lithuania, Latvia, Malta,
compare it to the proposal COM (2001) 386, it is clear that the conditions Poland, Czech Republic, Slovakia, Slovenia and Hungary) have entered the
of a long-term resident only differ for the permanent character of the stay European Union, forming the European Enlargement. Actually, it was the fifth
permit and for the possibility, under determined conditions, of staying in a enlargement in the EU history. The previous ones occurred in 1973 (Great-
Member State different from the one that issued the permit. Britain, Ireland, Denmark), in 1981 (Greece), in 1986 (Spain and Portugal)
The need to reach a common regulation on immigration 23 (within 2005, the and in 1995 (Austria, Sweden and Finland).
Commission will have to present an Action Plan on the subject) is also thor- The 2004 Enlargement is the final result of a pathway which started in
oughly underlined in The Hague Programme, which was approved in 1993, when the Copenhagen Summit established the membership condi-
November 2004. Moreover, The Hague Programme identifies the following tions for candidate countries. The objective of fulfilling minimum economic
objectives: and political standards is officially endorsed in Athens, on April 16th 2003,
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the legislative framework 24 25

during the signature of the Accession Treaty by the ten candidate countries ies and self-employment, are subject to each Member State’s decisions and
and the fifteen Member States. The Treaty sets the membership conditions in particular:
and modifies the previous constituting Treaties. > until 2006, the access to national labour market for new Member States
The Accession Treaty foresees a smooth integration process to EU rules for citizens will be regulated by national legislation or by bilateral agreements
the new Member States in some sectors such as monetary union, and as between the states;
far as immigration policies are concerned, the accession to Schengen > in mid 2006, the Commission will present a report concerning the action
System, i.e. the freedom of movement and residence in the EU territory for plan during the transition period, and each Member State will communicate
new European citizens. its future actions until mid 2009;
> in particular cases, if the extension of the freedom of movement for work-
Schengen Acquis ers to citizens of new Member States is demonstrated to cause or threaten
New European citizens can travel in the EU territory by simply showing a a “serious difficulty” to the national labour market, each state could ask the
passport or an identity card, but internal borders checks will still remain authorisation to extend the restrictions foreseen for the transition period
until a specific decision of the Council will remove them. until 2011.
The extension of the Schengen Acquis (which foresees the absence of inter- States have different positions on this issue: Great-Britain and Ireland do
nal borders checks between two Member States) to new Member States has not apply any restrictions, except for restrictions to welfare access for work-
not occurred automatically with the 2004 Enlargement, as it didn’t occur ers coming from new Member States. France and Austria have already asked
with the previous enlargements either. For example, Greece joined the to extend the restrictions until 2011.
Schengen System in 1999, while Denmark, Sweden and Finland did so in Greece, as well as Italy 24, will extend the restrictions foreseen for the tran-
2001. sition period until 2006.
The issue is that the abolition of internal borders checks can be possible only How can we judge these restrictions – even though they only refer to admis-
if it doesn’t reduce the security levels of European citizens. In regard to new sion conditions for paid employment purpose –, which seriously reduce sta-
Member States – their frontiers have become Europe’s external borders –, tus and its related rights? (In fact, on the one hand, besides the European
they will have access to the Schengen system only when they will adequate- citizen status and the status of third-country nationals, a third personal sta-
ly monitor their borders, ensuring the same security level guaranteed by the tus is created. On the other hand, the tertium genus is regulated by each
actual Schengen Area member states. To that end, many new Member States Member State’s decisions, which could apply different regulations to “new
have adapted their legislation on immigration – with restrictive measures – citizens’” different country of origin)
and have installed efficient and up-to-date control systems at their borders. It is a prudential behaviour of the European Union towards its new mem-
Besides allocating part of the PHARE programme funds for administrative bers. In fact, this type of behaviour is not a new one. In 1986, when Spain
cooperation between border control institutions, the European Union has and Portugal accessed the EC, a transition period was established as far as
created specific programmes called Schengen facility and Transition facility workers’ freedom of movement is concerned. The elevated number of new
which respectively receive 900 and 380 million euros during the 2004- accessing countries and their weak economies contributed to create a great
2006 period. concern in regard to a massive arrival of migrants from these countries 25.
Many studies on this matter revealed that the massive arrival will not occur:
Citizenship rights after a first period of migration pressure, the situation should be stabilised
The Accession Treaty foresees transitional arrangements concerning the free- thanks to the social and economic convergence effect, to the harmonisation
dom of movement of new Member States’ workers. The transitional arrange- of labour markets and to the improvement of life conditions in new Member
ments do not apply to Cyprus and Malta. Restrictions, which only apply to States. For example, a study carried out in February 2004 by the European
admission conditions for paid employment purpose and therefore do not Foundation for the Improvement of Living and Working Conditions for the
interfere with admission and residence conditions for the purpose of stud- European Commission assumes that migration flows from new Member
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the legislative framework 26 27

States would represent no more than 1% of the entire working population, embassy in his/her country of origin. According to the law of 1998, the
even in a totally free labour market. Moreover, taking into account the high migrant’s future employer must make a specific nominal request entitling
education level of new potential migrants, the real problem could be a brain the named migrant of a visa for paid employment purpose: for this reason,
drain in their countries of origin. Finally, a study carried out in 2003 by labour demand and supply meet outside the Italian territory and before the
Christian Dustmann and quoted by Caritas Italiana, estimates the number migrant’s admission in the country. This is the qualifying aspect of the law
of permanent migrants from new Member States to be 1,1 millions, while and its clear intentions are specified in a sentence of the former Minister
the number of temporary migrants could reach 2,2 millions 26. Livia Turco: “economy needs immigrants but society fears them” 28.
Practically, this mechanism demonstrated its scarce efficiency, both for the
Immigration in Italy limited number of quotas and the complexity of the bureaucratic procedures
During the ‘80s, Italy, – as well as Greece and other southern countries – concerning labour demand and supply: the proof of it inefficiency is the ele-
became a country of immigration, whereas between the end of the 19th vated number of illegal immigrants in the country, which required several
century and the beginning of the 20th, it was an emigration country. In fact, acts of indemnity, i.e. the regularisation of the illegal immigrants present in
most of the immigrants in the United States were Italian citizens. the Italian territory 29.
The first legislative regulation in 1990, – the so-called “legge Martelli” (the The following Bossi-Fini law made the mechanism more severe by introduc-
legislative decree n. 416 of 30/12/1989 was translated, with some modi- ing a “stay contract” signed by the migrant and his/her future Italian employ-
fications into the law n.39 of 28/02/1990) – set the rules for both third- er. This contract is the only condition to obtain a stay permit for paid
country nationals’ admission and asylum and the regularisation of aliens employment purpose; in fact, the possibility offered by Turco-Napolitano law
already staying in the Italian territory. After the first regulation, and only in for migrants to enter the Italian territory without an employment offer but
1998, a homogenous regulation on immigration was produced. with the guarantee of a future employment given by an Italian citizen or a
The law n.40/1998 named “legge Turco-Napolitano” from the names of the third-country national legally living in Italy has been abolished in 2002.
two ministers who proposed it, was then translated into the Testo Unico As far as the fight against illegal immigration is concerned, the 1998 law
delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla introduced the new option – at least for the Italian legislative framework – of
condizione dello straniero (legislative decree n.286/1998). This new regu- administrative detention. Therefore, if immediate expulsion or refusal is not
lation divided the dispositions related to immigration from those concerning possible, the police headquarters can order the illegal migrant’s detention
asylum and gave an homogenous character to the whole legislation on the in a “temporary permanence centre” for a period not exceeding 30 days. The
matter, based on three essential elements: annual scheduling of admissions 2002 law extended the detention period to 60 days and made the sanc-
for employment purpose, fight against illegal immigration, integration of tions against illegal immigration abetment more severe; moreover, the alien
migrants legally staying in the territory through “citizenship pathways” 27. who violates an expulsion order or remains in the Italian territory without
Some of these elements were extended, in different ways which we will been entitled is arrested. The law made the expulsion orders immediate,
briefly explain, to the following law n. 189 of 30/07/2002, the so-called abolishing the previous suspension period for an appeal. This disposition,
Bossi-Fini law, which modified many aspects of the previous Testo Unico. together with the order of arrest for transgressing, stated in the Article 14,
The scheduling of admission permits is made possible by the annual paragraph 5ter have been declared illegitimate by the Constitutional Court
approval of a Prime Minister decree (DPCM) which sets the number of third- with the sentence n. 222 and 223 of 2004.
country nationals admitted in Italy for paid employment purpose, subdivid- Following the Court’s important decisions, the law decree 241/2004 named
ing them into seasonal and permanent workers. Furthermore, the number of “urgent dispositions on immigration” translated by law 271/2004, has mod-
admitted migrants is subdivided into quotas which refer to their country of ified the Testo Unico by partly accepting the Court’s indications but also, by
origin and to the Italian region they are destined to. In order to enter the introducing a new figure: i.e. the jurisdiction of the giudice di pace – an
country and to be employed, the alien must fall into the total number of the ombudsman – instead of the ordinary tribunal’s jurisdiction – on the deci-
admitted migrants and must apply for an admission visa at the Italian sions concerning the expulsion orders or the appeals against them.
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the legislative framework 28 29

Finally, it is important to point out the “citizenship pathways” introduced by trend has also other peculiarities, which are well explained in the interesting
the Turco-Napolitano law on the gradual integration process of migrants analysis of Panos Hatziprokopiou 32.
legally living in the Italian territory: this process consists in the transition Greece’s geographical position gives migration flows a relevant Balkan char-
from a precarious situation linked to the stay permit which must be annual- acter, since most immigrants come from the borderline Balkan countries.
ly renewed under the condition of the possession of basic requirements, to Hatziprokopiou notes that in the new European geopolitical context, Greece
the stability given by the stay certificate: the immigrant can apply for this is contemporarily the Northern part of the Balkans and the Southern part of
certificate after 6 years of legal residence in the country (in the 1998 law, Europe. If we compare migration flows coming form the Balkan countries to
the period requested was five years, just like the period required for the the capital flows invested by Greece in these countries in SMEs delocalisa-
long-term resident status recognition by the EU Council directive tion projects, we can see that both processes respond to Greek production
2003/109EC). Finally, a stable situation is acquired with naturalisation, needs for low cost and flexible manpower, in order to ensure competitive-
which migrants can apply for after 10 years of legal residence in Italy. These ness by reducing labour cost.
solutions are still possible even after the 2002 modifications, although it is Going back to migrants’ provenience, the information emerged from the
more difficult to obtain expected results 30. 2001 census confirms that there are four major nationalities: 55,6% are
Albanians, 4,7% are Bulgarian, 2,9% come from Romania and 2,9% come
Immigration in Greece from Georgia. This information demonstrates how immigrants’ provenience is
In the last 15 years, Greece has also lived the transition from being an emi- characterised on a regional basis (the Balkans) but also on a national basis
gration to an immigration country. From 1950 to 1974, more than 1 million – Albania in the case point, which is a peculiarity of Greece since the two
Greeks migrated to other European countries and to the United States, countries have touching national borders.
Canada and Australia. But, since 1974, many factors (among which an Hatziprokopiou also notes how migrants’ admission is simplified thanks to
improvement of the economic and political situation, thanks to the return of the structure of the Greek labour market and to the role of informal and
democracy and the admission in the European Community in 1981) con- small enterprises’ economy. However, it is important to point out that each
tributed to the return of many Greeks in their country of origin.Therefore, region has its own peculiarities. The presence and integration modalities of
compared with the Italian situation, Greek migration flows also included migrants differ in regard to urban or rural areas and also, in regard to the
returning migrants. labour market and the local entrepreneurial characteristics. Moreover, the
The statistical census carried out in 2001, revealed that on a population of 2001 census also reports that 40% of the immigrants live in the Attica
10.964.020 people, immigrants constitute 797.091, i.e. 7,3% on the total region and in particular in Athens’ metropolitan area.
population 31. Finally, another Greek peculiarity is the disorganised and fragmentary feed-
Greece’s transformation into an immigration country was facilitated by its back of public institutions towards immigration issues. In 1991, when the
geographical position: this country represents the South-Eastern border of communist Albanian regime fell, a massive migration of Albanians towards
Europe and has many kilometres of maritime and land frontiers. Greece is Greece occurred: public opinion and politicians reacted negatively to the
also close to areas of political and economic instability. Moreover, the threat towards Greek’s security and law, represented by the massive arrival
European integration process accelerated the economic development of the of newcomers 33.
country, reducing its gap in regard to the other European countries. The qual- A new law that would regulate the question was in fact necessary, since the
ity of life and the education level improved but, in the same time, the law in force which regulated immigration issues was designed in 1929 and
request for low cost and flexible labour has increased. This type of labour is was totally inadequate. Therefore, the law 1975/1991 regulating the
requested to meet the needs of Greek labour market, which is based on “Admission, return, residence, employment and expulsion of aliens and
informal relationships, seasonal work (for tourism and agriculture) and small refugee status recognition procedures” was approved. But according to the
and medium, and often family enterprises. current opinion, this law didn’t foresee a realistic and legal entry method, or
Besides immigration of returning Greek nationals, the overall immigration rather, it didn’t fully respected migrants’ human rights: in fact, it foresaw seri-
migrest inglese 16-05-2005 14:54 Pagina 30

the legislative framework 30 31

ous sanctions for illegal immigration, mechanisms of administrative expul- Immigration in the European Union
sion, i.e. without any intervention of juridical authorities and no rights to Sources
> Treaty establishing the European Community, Articles 61 to 69;
access health or educational services for illegal immigrants 34. > Treaty on European Union, Articles 29 to 42;
The first regularisation programme was approved by the Greek Government > Tampere’s Council conclusions, 1999;
only in 1998, as a reaction to the elevated presence of illegal immigrants – > The Hague’s Council conclusions, 2004;
who entered or remained in the territory without been entitled. The 1998 > Commission’s Communication COM (2000) 757 of 22/11/2000;
> Commission’s Communication COM (2001) 387 of 11/07/2001;
regularisation foresaw two phases: in the first phase, the alien who lived for > Commission’s Communication COM (2003) 336 of 3/06/2003;
at least one year in the Greek territory and paid the equivalent of 40 work- > Commission’s Communication COM (2004) 4002 of 2/06/2004;
ing days of social security contributions in 1998 could apply for a stay per- > Green Paper on EU approach to managing economic migration COM (2004) 811
mit called “white card” for a duration of 6 months. The “white card” of 11/01/2005;
> Council directive 2003/86/EC of 22/09/2003;
represented the first requirement for the further application of a “green
> Council directive 2003/109/EC of 25/11/2003;
card”, an annual and renewable stay permit. To obtain this type of permit, > Council directive 2004/114/EC of 13/12/2004;
the immigrant would have to give proven evidence of been legally employed > Proposal for a Council directive COM (2001) 386 of 11/07/01.
since January 1st 1998 and that he/she had paid the equivalent of 150 Institutional websites
working days of social security contributions. There has been a massive par- http://europa.eu.int/eur-lex Search engine for EU political and juridical documents
and for the European Official Journal (OJ).
ticipation to the regularisation process, with serious problems for Greek http://europa.eu.int/comm/justice_home/index_en.html European Commission DG
bureaucracy.Baldwin-Edwards reports that on 372.000 “white card” appli- freedom, security and justice website.
cations submitted on May 31st 1998, only 38.000 were issued. Moreover, http://ue.eu.int Council of the European Union website.
the deadline to apply for the “green card” was extended more than once,
Immigration and Enlargement
until April 1999. At the end of the regularisation programme, 212.860 Sources
“green cards” were issued. > The Accession Treaty, Athens, 16/04/2003
In 2001, a new law on immigration was approved: the law n. 2190 on Institutional websites
“Admission, residence of aliens in Greece and Greek nationality acquisition http://europa.eu.int/comm/enlargement/index_en.html European Commission DG
Enlargement website
through naturalisation”. In addition, a second regularisation programme was
http://ue.eu.int Council of European Union website
approved, concerning the acquisition of “green card” by aliens who could
give proven evidence of living in Greece since, at least, one year prior to the Immigration in Italy
law’s approval. Moreover, they have to give evidence of a valid employment Sources
> Legislative Decree n. 286 of 25/07/1998, Testo Unico of the dispositions concerning
contract and demonstrate that they paid the equivalent of 200 working days
immigration and regulations on the alien’s conditions, with the modifications referred
of social security contributions. to in the law n. 189 of 30/07/2002, Modification of the regulation concerning immigration
On August 31st 2001, 351.100 applications were submitted and up until and asylum and of law n. 271 of 12/11/2004 which translates the law decree n. 241
now, 220.000 have been processed. But the sources concerned gave evi- of 14/09/2004, Urgent dispositions on immigration.
dence of a lack of definite data, due to problems and slowness in the pro- > DPR n.394 of 31/08/1999, Regulation on the implementation rules of the Testo Unico
of the dispositions concerning immigration and regulations on the alien’s conditions,
gramme implementation 35. These problems forced the Government to with the modifications referred to in DPR n. 334 of 18/10/2004
extend the duration of permanent permits until June 2003 and then to Institutional websites
emend the 2001 law. http://www.parlamento.it Italian Parliament website
The law 3202/2003 states that, after the 2nd annual renewal, a staying per- http://www.welfare.gov.it Welfare Ministry website
mit can still be renewed for two more years. Moreover, the permit is valid on Immigration in Greece
the entire national territory and not only on the territory of the issuing Sources
Prefecture. > Law 1975/1991, Admission, return, residence, employment and expulsion of aliens
migrest inglese 16-05-2005 14:54 Pagina 32

the legislative framework 32 33

and refugee status recognition procedures text titled Diritti umani per lo statuto internazionale del migrante writes about economic
> Presidential decrees n. 358 and 359/1997, first regularisation refugees in the volume Gli immigrati extracomunitari by Various Authors ed. Piemme, Casale
> Law 2910/2001, Admission, residence of aliens in Greece and Greek nationality Monferrato, 1990, p. 67.
acquisition through naturalisation – Second regularisation 18 The complete list of adopted regulations and examined proposals are in the Commission’s
> Law 3202/2003, Modifications of the law 2910/2001 Working paper SEC (2004) 680 of 2/06/2004, Area of Freedom, Security and Justice:
Institutional websites Assessment of the Tampere programme and future orientations (attached to Communication
http://www.parliament.gr Greek Parliament website COM-2004-4002 under the same title).
http://www.primeminister.gr Greek Government website 19 Reference is to Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union
http://www.nchr.gr National Commission on Human Rights website and their family members to move and reside freely within the territory of the Member States
(OJ L 158 of 30/04/2004) which repeals all previous dispositions on the subject and which
must be transposed into national legislation within 30/04/2006.
notes 20 Long discussions have characterised this topic. The Commission’s first proposal (1999)
13 By Benedetta Pricolo, Lawyer, with a specialisation in Institutions and Techniques of Human authorised the entry and the stay of a further spouse and her children in accordance to the
Rights’ protection, University of Padova. minor’s best interest, but the second and definite formulation (2002) denied entry authorisa-
14 An example of intergovernmental cooperation, which then became part of Community’s tion to children born from a polygamous relationship.
acquis, is the agreement signed in Schengen in 1985, by France, Germany, Belgium, Netherlands 21 Tampere’s conclusions and the Commission’s Communication (2000) 757 of 22/11/2000
and Luxembourg. The agreement foresaw the abolition of internal borders checks for citizens of on immigration’s community policies stated that the more the conditions of third-country
signatory countries, the cooperation between judicial and police authorities, a screen-based nationals who are long-term residents are similar to the conditions of EU citizens, the more
connexion system and a common data bank between control offices at the frontiers. The initial migrants’ integration and the fight against discrimination, racism and xenophobia will be effi-
agreement between five countries was then extended to other countries (Italy signed the agree- cient.
ment in 1997) and was integrated into the Treaties by a proper Protocol in the Amsterdam Treaty. 22 EP opinion A5-0010/2003 of 12/02/03; ESC opinion SOC/084, CES 28/2002 of
15 The Treaty establishing a Constitution for Europe signed in Rome on October 29th 2004, 16/01/2002; Committee of Regions opinion 386/2001 of 13/03/2002.
by Member States’ leaders, and now subject to ratifications following national procedures, fore- 23 The Council wishes a comprehensive approach during all the phases of immigration, with
sees that EU obtains international law personality and a unitary structure. Therefore, the three regard to causes, admission, integration and return policies of third-country nationals. The
pillars disappear, leaving precise repartition criteria of EU and Member States competences Council also underlines the need for admission procedures capable of responding promptly to
(EU or Member States exclusive competence or shared competence). the requests of the European labour market. A new aspect is the connection between this issue
16 A thorough analysis was carried out for the British Association Statewatch by S. Peers: and the fight against illegal employment, which is a major issue both in Italy and Greece.
Vetoes, opt-outs and EU immigration and asylum law, December 2004, in http://www.state- 24 With the DPCM (Decree of the Italian Prime Minister) of 20/04/2004 titled “Scheduling
watch.org/news/2004/oct/eu-immig-opt-outs.pdf. The same author also wrote: Migration pol- the admission of workers coming from EU new Member States in the Italian territory in 2004”
icy: a missed opportunity? In the Working Paper n. 15, February 2005, European Policy Centre (OJ 3/05/2004) the Italian Government wishes to use the restrictions foreseen during the tran-
in Brussels: http://www.theepc.be. An interesting critical evaluation of Community policies can sition period concerning the freedom of movement of workers, until the year 2006. Thus, the
be found in J. De Lucas’, Migrazioni, diritti e cittadinanza nell’Unione europea. Sulle condizioni Government will reserve a number of 20.000 admissions for paid employment purposes to new
di legittimità della politica di immigrazione, in Diritto, immigrazione, cittadinanza n. 2/2004, Member States citizens, which represent an additional number in regard to the admission per-
p. 13. mits for third-country nationals foreseen within the national legislative framework on quotas
17 Immigration and asylum are thoroughly linked together (this was also clearly affirmed at stated in the legislative decree n.286/1998. As for the year 2005, the DPCM of 17/12/2004
Tampere). However, it is important to underline that, upon international law, states’ obligations titled Scheduling the admission of workers coming from EU new Member States in the Italian
towards migrants and refugees differ from each other. This is the reason why regulation on both territory in 2005 and its related application document n.2 of 25/01/2005 (both published in
situations is also different. As for economic migrants, their admission in a Member State’s ter- the OJ of 2/02/2005), set the number of admission permits for employment purpose – even
ritory is regulated by national law: as we already know, only citizens have the right to freely cross seasonal employment – to 79.500 admissions in favour of citizens coming from eight of the
national borders. As for refugees instead, all Member Sates have signed the 1951Geneva new Member States which are affected by restriction measures. It is the same number of
Convention on the status of refugee. Therefore, they must give protection to every individual who admissions foreseen for all third-country nationals. The only difference in this case is that the
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, mem- admission quotas are subdivided between the Italian regions and autonomous provinces, while
bership of a particular social group or political opinion, is outside the country of his national- for new Member States citizens, the admission quotas are calculated at a national level.
ity and is unable or, owing to such fear, is unwilling to avail himself of the protection of that 25 In his book L’Europa a venticinque, Il Mulino, Bologna, 2005, p. 61 and following, Enrico
country (article 1.A). Letta states that the restrictions foreseen in the transition period are likely to be exaggerated.
There are some important authors who declare that, since migration is also caused by massive But he also affirms that immigration has been a major issue in the Enlargement negotiations,
violation, in many Countries in the Southern part of the world, of fundamental economic and especially in countries like Austria and Germany.
social rights, a major protection for economic migrants should be guaranteed: A. Papisca, in his 26 The Foundation's report can be found in http://www.eurofound.eu.int/newsroom/mi-gra-
migrest inglese 16-05-2005 14:54 Pagina 34

the legislative framework 34

tion.htm. Dustmann's study is quoted in Caritas Italiana's Report Europa. Allargamento a Est e
immigrazione, edited by O.Forti, F.Pittau, A.Ricci, 2004, p. 8 .
27 Concerning the Italian immigration law, reference is to B. Nascimbene, Diritto degli stranieri,
Padova, CEDAM, 2004. For a general comment on the overall intentions and the political choic-
es of the Turco-Napolitano law, refer to the following book: L. Pepino, Immigrazione, politica,
diritto (including reference notes on the law n.40/1998), in Diritto, immigrazione, cittadinan-
za, n. 1/1999, p. 11. The dispositions on asylum are still regulated by Article 1 of the legge
Martelli and by Article 10 paragraph III of the Italian Constitution, since a homogenous law on
the matter has not yet been approved. A new regulation concerning the procedures for the
refugee status recognition has just entered into force, DPR n. 303 of 16/09/2004 (Italian OJ
22/12/2004).
28 L.Turco, Governare l’immigrazione, sconfiggere la paura, in Italianieuropei, n. 3/2002.
29 An alternative to the mechanism of the law 40/98 (which was made more severe by the
following law n.189/2002) consists in a “job seeking permit” which would allow the alien to
enter the territory without a prior employment offer, and some mechanisms of “permanent reg-
ularisation” for those people who – while illegally staying in the country – have the legitimate
conditions to enter. Cfr. L. Pepino, op. p.20.
30 For example, the stay permit can be renewed for a duration that cannot exceed the dura-
tion of the initial issuing. The 1998 law instead, foresaw the possibility of renewing the permit
for a period which did not exceed twice the duration period of the initial issuing. Finally, the
stay permit holder who loses his/her job, can still be enrolled in the employment lists for six
months without having his/her stay permit revoked, while in the 1998 law, this period was of
one year.
31 Information in this section concerns data until June 2004, reported by C. Charambolos –
C. Kassimi, Greece: a history of migration, in http://www.migrationinformation.org(Migration
Policy Institute of Washington).
32 P. Hatziprokopiou, Balkan immigrants in the Greek city of Thessaloniki. Local process of
incorporation in an international perspective, in European urban and regional studies, n.
11(4)/2004, p. 321.
33 The xenophobic character of people’s reaction towards immigration is pointed out in P.
Hatziprokopiou, Balkan immigrants inthe Greek city of Thessaloniki., cit., p. 326, and in M.
Baldwin-Edwards, Immigration into Greece 1990-2003: a Southern European paradigm?, in
http://www.mmo.gr (website of Mediterranean Migration Observatory of the University Panteion
in Athens), January 2004.
34 Besides the already mentioned authors, reference is to the report presented at Migrest II
Workshop (Venice, 27/02/2004) by D. Moussoulides, titled Greek immigration policy review.
Baldwin-Edwards specifies that between 1991 and 1995, almost one million aliens have been
expulsed by administrative procedures.
34 The Greek Ombudsman for the Interior Ministry reports the problems and slowness of
bureaucracy in his Special Report on the problems of the application of the Aliens Law
2910/2001, National Publishing Agency, Athens, 2001.