Important immigration law disputes at administrative Courts in Italy

1. INTRODUCTORY REMARKS

Italian Administrative judges deal with immigration, rather then asylum claims. This is due to the operating criteria of separation between civil judges’ and administrative judges’ jurisdiction.

Asylum is a matter concerning a status, a constitutional right, and, according to our Constitution, status and rights belong to the province of civil judges.

Administrative judges are, therefore, concerned only with permits of stay such as work permits, study permits etc., except for family permits.

Family permits belong to the civil courts because of a special provision in the law.[[     Article 30 Act n. 286/1998.]]

The compliance of this provision to our constitution has been discussed by the Constitutional Court, but has been positively confirmed, as far as these claims concern rights, status, and not legitimate interests {(}not full rights{).

}Therefore administrative courts' daily domestic cases have to do with residence and employment permits and foreign workers regularizations.

These claims more seldom involve directly EU directives or the provisions of  the Convention for the Protection of Human Rights.

Even expulsions orders do not belong to the Italian administrative courts’ judicial control.

Compared with other countries, Italian administrative courts have very limited jurisdiction on immigration claims.

Nevertheless, it is possible to sort out interesting legal issues concerning constitutional principles in administrative adjudications.

The main national legislative sources concerning immigrants are the following:

Legislative Decree n. 286 of July 30th 1998 – Consolidated Text – entitled “Immigration and alien status provisions”; “Supplemental rules to the main provisions” in the Presidential Decree n. 394 of  August 31st 1999 – revised by Presidential Decree n. 334 of 2004: “Amendments to immigration and asylum law” in Law 189 of July 30th 2002.

2. A RIGHT TO LEGAL AID OF INDIGENT ILLEGAL ALIENS

According to the Article 24 of the Constitution (1948) “everyone has the right to judicial remedy before a tribunal. To those lacking sufficient resources a legal aid is provided in order to allow them access to an effective judicial remedy and to defence before any court”.

This is acknowledged as a due consequence of the right of each individual to a due process, whether being a citizen or not.

No doubt that, according to the Constitution,  the right to defence belongs to aliens as well as to citizens and in compliance to such a constitutional principle the Italian state should provide means for legal aid also to aliens when their income is below a certain level (corresponding approximately to 10,000.00 euro per year).

These rights are also set out in the Article 47 of the Charter of Fundamental rights of the European Union providing the right to an effective remedy and to a fair trial.

According to the above mentioned provision, “everyone (that means not only citizens) shall have the possibility of being advised, defended and represented” and it also provides that “legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”.

Our legislation, however, will not provide legal aid (that is a pleading free of charge for the indigent claimant) to the illegal immigrant with regard to a claim concerning the denial of a regularization application. An illegal immigrant would have legal aid only if his grievance concerns an expulsion order but not if he/she seeks judicial remedy for a regularization denial.

Having detected such a violation of the above mentioned constitutional principles the Administrative Regional Court of Umbria, in a recent case concerning a third country national who had forwarded a claim against the legalization refusal, submitted the issue to the Constitutional Court with order n. 523 of March 2006.

The administrative judges argued that the legal provision in force, according to Articles 119 and 142 of Presidential Decree 115/2002, regulating legal aid, infringes the following constitutional principles:

equality before the law (Art. 3 of the Constitution)

a right to a due defence in a judicial  proceeding (Art. 24 of the Constitution)

a right to judicial protection before the administrative courts (Art. 113 of the Constitution).

The Regional Court also underlined that since the regularization proceeding concerns only illegal immigrants and it is aimed to amnesty their position, it is  unreasonable to deny legal aid in such judicial claims.

The other unreasonable aspects of such regulation, highlighted by the Regional Court, is that the claimant will have to wait the expulsion order to be able to forward a new claim before an Italian court and he will be admitted to legal aid when he/she no more needs it.

It is obvious that his/her claim against the regularisation denial will be founded on different legal reasons, notwithstanding the fact that the expulsion order will follow automatically,  since he/she was denied his/her residence permit. The case is still pending before the Constitutional Court.

3. ILLEGAL RESTRICTIONS TO ALIEN WORKERS REGULARISATION IN THE AMENDMENTS TO THE ACT OF 2002

In November 2003 the Regional Administrative Court of Lombardia, followed by the Regional Court of Veneto in February 2004, submitted to the Constitutional Court the case on constitutionality of  Art. 1 of the Act 222 of 2002 providing that illegal alien workers cannot be regularised if  they have been notified in a police crime report.

The censored law sets out emergency provisions concerning irregular alien legalisation criteria and proceeding. This law applies only to illegal immigrants who have been employed at least three months prior to the entry in force of the law and who are declared within November 11th 2002.

Art. 1 states that those who could be  according to a police crime report held responsible for crimes for which the national law  allows arrest red-handed, are excluded from legalisation.

This is a more restrictive requirement compared with the operating rule for ordinary work permits or for other kind of residence permits.

According to the Italian law, permits can be denied to those who have been convicted by a tribunal, although with a non-definitive decision, for a crime for which the Italian law provides imprisonment and to those who constitute a danger to the community or to the security of the state.

The Regional Administrative Court for Lombardia argued that excluding from legalisation an illegal immigrant only on the ground of a police report violates the following constitutional rights: human fundamental rights; Art. 3 of the Constitution - stating the right to equality before the law;  a police report cannot have such serious effects before a judge has ascertained his responsibility; Art. 4 – stating  the right to work; Art. 27 – providing the presumption of innocence; Art. 111 – providing the right to a due process.

The national decisions do not mention the European provisions in which the same rights are set out. The same principles are stated in the following articles of the European Union Charter of Fundamental and they regard “Everyone”, since they are not referred only to citizens: Art. 20 – Everyone is equal before the law; Art. 47 – right to an effective remedy before a tribunal; Art. 48 – everyone’s presumption of innocence and right to defence.

Together with the administrative courts,  two civil courts had raised the same legal issue.

In February 2005, the Constitutional Court (n. 78/2005) has agreed with the objections and has ruled on the constitutional illegality with respect to the principle of equality or, more precisely,  of reasonableness of the charged law provision, where the legislation allows the automatic denial of a regularisation application because of the existence of a police crime report concerning the applicant.

The Constitutional Court agreed with the administrative trial courts in considering unreasonable the automatic denial of the alien’s regularisation instance whenever a police crime report has mentioned the applicant. A police report, argues the Constitutional Court, does not contain any legal  proof  with regard to the guilt of the alien, nor an individual can be considered dangerous simply on the ground of a police report.

On the same premises the Administrative Court of Sicily with a previous finding [[     Catania, Section II, 12 February 2004 n. 204.]] has voided the denial of a regularisation instance based on the circumstance that the alien had been reported by the police for a crime.

The Sicilian Court has anticipated the Constitutional Court’s interpretation of the law deeming that the only correct interpretation of the law, according to Article 3 and 27 of the Constitution, i.e. of the principle of equality and of the presumption of innocence, excluded that a mere police crime report could justify the rejection of the alien’s regularisation instance.

The Administrative Court for Sicily has deemed illogical and unreasonable the provision of a police report, lacking any judicial verification, sufficient to paralyse the request for regularisation. In particular, the law cannot provide that an alien will receive its work permit only because he was so lucky to have his police crime report received by a judge who ascertained his innocence in due time while another could have to wait months to get rid of such an impediment and will have his request rejected only due to mere chance.

Although the finding of the administrative court can be deemed blameable, under a strictly procedural  point of view, since a trial court should not avoid application of a clear rule of law,  although deemed contrary to Constitution, but it should raise the constitutional illegitimacy issue before the Constitutional Court,  all the same, it is significant how the administrative judge is ready to consent to an interpretation of the law provision in accordance to the fundamental principles.

LEGITIMATE RESTRICTION TO ALIEN WORKERS REGULARISATION

In January 2006 the Constitutional Court has rejected other objections, raised by three regional administrative courts concerning again the Art. 1 of the Act n. 222/2002.

This time the administrative judges censor the provision according to which illegal alien workers who have received an expulsion order to be performed by police and that, therefore,  cannot be revoked are denied  legalisation.

The same issue had been also forwarded by the administrative judge of Appeal, the Council of State.[[     Decision of April 2005 of the IV Section, n. 1706/2005.]]The first instance judge had not considered the constitutional compliance of the rule sufficiently grounded and had rejected the claim.

The judges argue that this provision treats in the same way very different positions and therefore violates Art. 3 of the Constitution, i.e. the principle of equality and of reasonableness.

Such opinion is based on the circumstance that an alien, reached by an expulsion order to be performed by police is denied the possibility of regularisation even though he/she might be able to demonstrate to be  socially integrated,  at the same way as the illegal alien who has committed a crime and has been therefore expelled. This is the argument of the Council of State.

An illegal immigrant reached by an expulsion order, because he/she did not leave the state at the prescribed time or because he/she entered without documents, without committing any crime,  is treated in the same way as an illegal alien who represents a danger to the community.

In addition, according to the above-mentioned legal provision an illegal alien who has asked for legalisation before the dead-line of his expulsion order will obtain his work permit, while the one who has accomplished the order will not.

This time the Constitutional Court has rejected the objections stating that the expulsion order to be performed by police is now generally applied to all illegal immigrants, except only for those whose permit has expired,  and that the different positions are merely factual and the law can therefore legitimately provide such exclusion.

The Constitutional Court found it reasonable to exclude from legalisation those illegal aliens who are due to leave the country escorted to the border by police, whatever the reason is for the issue of the expulsion order.

A compliance to constitutional principles of the legal provision examined by the Constitutional Court had been already stated by the Administrative Court of Puglia (n. 222/2005). The first instance judges deemed absolutely not grounded the argument stating the violation of the principle of equality before the law. They argued that there is no similarity between the situation of an alien who has received an expulsion order not to be performed by the police and the alien who is due to leave escorted by police. The judges of the Administrative Court of Puglia, therefore, examined this issue, evaluated the hypothetical situations offered by the claimant’s defence and adjudicated that the legal provision is absolutely reasonable. So doing, they anticipated the opinion of the Constitutional Court.

LEGITIMATE REASONS FOR RESIDENCE PERMIT DENIAL

According to Art. 4 and Art. 5 of the Consolidated Text of 1998, containing provisions on immigration and alien status, an alien who has been convicted for a crime is not given any stay permit and, if he/she  already has one, it must be revoked.

The amendments introduced by the Act n. 189  from 2002 provides  that even those who have negotiated their sentence are automatically excluded with no need, not even for them, to ascertain that they constitute a danger for the community.

According to the Italian law, a negotiated sentence is issued with no verification at all of the criminal responsibility and applies only to minor crimes (Article 444 of the Italian Criminal Procedure Code).

On these grounds, the Administrative Court of Lombardia has objected that the provision that denies work permit to an alien who has been convicted with a negotiated sentence violates the constitutional principles set out in articles 3, 27 and 35 (which concern equality before the law), right to work and the presumption of innocence.

The Administrative court objects to the automatic effect of such a sentence prior to any verification of the danger that such an individual may represent for the community.

The Constitutional Court in this occasion could not accept the objections because of a procedural obstacle linked to the insufficient argumentation on the relevance of the issue in the particular case. The case actually related to an alien worker who negotiated his sentence before the entry in force of the criticised provision.

Some  administrative courts in these cases have stated that the provision is not applicable to those who have been convicted by a negotiated sentence before the entry in force of the above -mentioned provision.[[     Administrative Court of Tuscany Section I n. 2303/2003 and 1287/2003.]]

This option has  been chosen, in certain cases,  on the grounds of a principle that applies to criminal law. This principle states that the law provides only for the future and that no one can be held guilty on account of any act which did not constitute a criminal offence under national law at the time when it was committed.[[     Administrative Court of Abruzzo – Section of Pescara n. 1102/2003.]]

Obviously, this does not perfectly fit to the circumstances of administrative cases, since there is no criminal punishment in these cases, but of an administrative allowance which is denied according to the law in force at the time of the request.

Other courts have argued that the mandatory nature of this impediment for those aliens who have negotiated their conviction before the entry in force of the new rule violates the principle of the legitimate expectations. Therefore, in these cases no automatic denial is legitimate. The administrative authority should always ascertain if the alien is a dangerous individual on more extensive grounds.[[     Administrative Court of Emilia Romagna n. 277/2003 and Adm. Court of Lombardia n. 478/2004.]]

According to these  findings the administrative authority cannot presume that an alien is a danger for the community if he/she has accepted a negotiation in a criminal proceeding at a time when such cause of  permit denial was not yet introduced by the law.

The amendments set out in the above mentioned Act n. 189 of 2002 introduced some restrictions, binding the refusal to certain conditions such as conviction for serious crimes, even if the sentence has been negotiated,  and, consequently, eliminating discretion in the activity of immigration authorities. The majority of permit denials are now bound, that is, they are strictly linked to certain conditions.

Some administrative courts have, nevertheless, softened the restriction effects by stating that if a criminal sentence for the crimes for which 2002 Act provides automatic denial has been issued before the entry in force of the Act, it should not be applicable. [[     See: Case of the Adm. Court of Friuli Venezia Giulia  n. 24/2005 and case N. 242/2006 and n. 107/2006 of the Administrative Court of Trentino Alto Adige. ]]

That means that the police authority before refusing a permit will have to consider other circumstances and explain the reason why the alien is to be considered a danger for the community. The circumstances that will have to be evaluated are: the seriousness of the crime committed, the entity of the penalty (i.e. its heaviness), the social alarm that the alien’s behaviour has raised, the  personality as a whole of the applicant.

Once again some administrative judge have applied the principle of legitimate expectations in order to avoid that a restrictive provision could be applied to the situations in the period when no such restrictions existed.

Others have deemed the new legal restrictions introduced in 2002 applicable also to aliens convicted on the basis of judgements prior to the entry in force of the law. They argued that the principle of legality  according to which the law can provide only for the future  applies only to criminal punishments and not to the effects of a criminal sentence on different benefits. These arguments are set out in Adjudication n. 1367/2006 of the Administrative Court of Sicily – Section II.

The Administrative Court of Puglia[[     Case n. 4467/2006.]]  has stated that permit denial because of a crime, provided as hindering, by the law after it has been committed, is illegitimate. The Court considers  unreasonable to deny a permit on the grounds of a crime which would not have affected the alien’s possibility to obtain a stay permit at the time when it was committed. The negative consequences of his actions could not be foreseen by the alien and therefore could not determine his behaviour.

This is an even stronger statement ensuing from the principle of legality which does not find a great consent among the administrative judges.

As we said the principle according to which law can provide only for the future applies only to the criminal punishment and not to all sorts of disputes.

6. THE EFFECT OF AN ALERT IN THE SCHENGEN INFORMATION SYSTEM ON ALIEN'S APPLICATION FOR REGULARISATION

The Act  n. 222/2002  excludes from legalisation those aliens that are mentioned in an alert, on the basis of international conventions or agreements.

The applicants request will be necessarily rejected in these cases. It is a fettered decision according to the above cited legal provision.

The administrative courts have therefore deemed legal the denial of regularisation to an alien who had been mentioned in an alert of the Schengen Information System and have stated that the Police Authority had no obligation to ask for more detailed information, since the alert is a  dominant cause of exclusion whatever the reason for the alert is.[[     Case n. 1019 april 2005 Section II, Administrative Court of Piemonte; case n. 255/2005 Section I Adm. Court of Lombardia and case. n. 323/2006 Adm. Court of  Umbria.]]

There is no discretion in denying regularisation to an alien alerted on the grounds of the Schengen’s Treaty. Therefore, they don’t have to give any particular or additional motivation to their decrees. [[    Administrative Court of Friuli- Venezia Giulia n. 126/2005.]] The only motivation needed in the refusal decree is a mention of the existence of the Schengen’s system alert and of the law provision applied.[[     Adm. Court of Emilia Romagna, case. n. 1572/2006.]]

It is perfectly legal to deny regularisation to an alien who has been already been expelled by one of the States joining in the Schengen’s Treaty on an automatic basis, that is without considering other circumstance. This opinion of the Administrative Court of Lazio[[     Case. n. 5633/2005.]] is based on the fact that the Italian law can provide a different rule only for expulsion orders issued by Italian authorities.

For the expulsion orders issued by Italian police authority, the national law can provide legalisation if the order is revoked, while as for the expulsion order of another country the different regime does not allow to take into consideration the revocation or ending of such order.

In the case examined by the Administrative Court of Lazio the claimant had obtained by another national authority the expiration of the expulsion order. All the same,  the Administrative Court of Lazio did not consider such element and confirmed the legality of the legalization  denial.

Similarly, the Administrative Court of Umbria rejected the claim of an alien who had been refused residence permit because he had been expelled by a State joining the Schengen’s Agreement in force in Italy by the Act n. 388/1993.[[    Case n. 675/2005.]]

In another case,  the Administrative Court of Piemonte held a very different position. The judge considered  illegal the denial of regularisation of an alien who had been alerted as non-admissible in the Schengen’s Area, only because the challenged decree did not mention the State, which issued the alert and the acts grounding such alert .[[     Case n. 3580/2004.]]

A different position was also held by the Administrative Court of Trentino Alto adige.[[     Case n. 271/2006. ]]  In that  judgment judges deem illegal to refuse a  residence permit only because an alien is mentioned in a Schengen’s alert system. The Police Authority should interview the authorities of the State which made the alert note and take into consideration the reason of such alert in order to evaluate if they exclude permit allowance, according to Italian law, as well as other  particular  circumstances relating to the applicant personal situation. The same opinion was expressed  in case n. 2662/2005 of Adm. Court of Puglia – Section of Lecce  and in case n. 1097/2003 of the Administrative Court of Emilia Romagna Section I.