Author
According to the Reception Decree, an asylum seeker can start to work after 60 days from the moment he or she lodged the asylum application.[1] Even if he or she starts working, the asylum seeker permit cannot be converted into a work or residence permit.[2]
Even though the law makes a generic reference to the right to access to employment without indicating any limitations, and albeit being entitled to register with Provincial Offices for Labour, in practice asylum seekers face difficulties in obtaining a residence permit which allows them to work. This is due to the delay in the Registration of their asylum applications, on the basis of which the permit of stay will be consequently issued, or to the delay in the renewal thereof.
Furthermore, employers are not confident to hire asylum seekers who are in possession of only the asylum request receipt or of the request for renewal of the six-month permit because the receipt, although bearing the photograph and legally equated to the residence permit, has no expiry date. They prefer to hire people with original permits.
Moreover, as reported to ASGI, many Provincial Offices for Labour do not allow asylum seekers under the Dublin procedure to enrol on the lists of unemployed persons and some Questure have expressed a negative opinion about the possibility for these people to be employed, before it is confirmed that Italy is responsible for their asylum application. During 2018, some regions where this occurred – such as Friuli-Venezia Giulia – changed their position on this issue. However, in 2019, ASGI was told the problem was still present on the national territory. The CJEU decision of 14 January 2021, according to which Article 15 of the Directive 2013/33/EU must be interpreted as precluding national legislation which excludes an applicant for international protection from access to the labour market on the sole ground that a transfer decision has been taken in his or her regard under Dublin Regulation, should overcome the different orientations existing in the national territory.[3]
In early 2022 an additional case was signalled to Asgi in Bolzen, due to the fact that both the employment office and Questura had denied access to work to a Dublin asylum seeker.
In addition, the objective factors affecting the possibility of asylum seekers to find a job are language barriers, the remote location of the accommodation and the lack of specific support founded on their needs.
L.132/2020 has re-introduced the possibility – abolished by Decree Law 113/2018 implemented by L.132/2018 – for asylum seekers to be involved in activities of social utility in favour of local communities.[4]
Regularisation of foreign workers
From June to August 2020 – in order to ensure adequate levels of individual and collective health protection – the Government allowed the regularization of foreign workers who arrived in Italy prior to 8 March 2020, in specific sectors (agricultural work, assistance to people with pathologies or handicap, domestic work).[5] The procedure was opened to asylum seekers allowing the applicants to change their permit into a work permit.
According to the decree (Art. 110-bis), migrants who have previously worked in the agriculture, fishing, care and domestic work sectors could ask to regularise their status through two different procedures:
- In the first track, employers could apply to regularise their foreign and Italian workers without a regular contract by putting in place proper employment contracts. This could thus only be activated by the employer;
- In the second track,[6] third-country nationals who have been in Italian territory without a valid residence permit since October 2019 can apply for a six-month residence permit to look for a job.
In the first case the worker obtained a work permit to stay, in the second case the worker obtained a permit to stay of six months, convertible into a work permit only if, in those six months, he or she found an employment contract in one of the three above mentioned sectors.
Asylum seekers could access both type of procedures. However, the MoI Circulars provided that access to the second procedure was subject to the renunciation of the asylum application.[7] Through the renunciation, to be formalized at the Questura, the asylum seeker could be admitted to the procedure as an irregular foreign citizen present in the national territory and obtain a residence permit for awaiting employment.
The Civil Court of Florence observed that it was necessary to ascertain that the applicant had received correct information on the withdrawal of the application and its consequences, before accepting the renunciation of the asylum application and the closure of the court proceedings. [8]
The Regional Administrative Court of Marche stated that the responsible Questura could not declare the application inadmissible due to the applicant’s failure to renounce international protection. [9]
In total, only 230,000 persons applied for such regularization procedure.[10]
Out of the 207,452 applications submitted in the first procedure, as of 2 November 2021, only 27,823 permits to stay were issued by the competent Questura, 13% of the total number of applications. The cases examined at the end of October were 78,897, about 38% of the total and the number of rejections was very high, equal to 11,405, meaning about 5% of the total cases examined. Among the rejected cases there were also cases of asylum seekers induced to renounce to the asylum application to access the regularization procedure.
As for the second procedure, out of 13,000 applications submitted, as of 2 November 2021, 10,000 workers had obtained the permit to stay.[11]
The limited number of applications is due to the strict requirements, the limitation of employment sectors and to the fact that, for the first option, the application for regularization depended on the employer’s initiative.
[1] Article 22(1) Reception Decree.
[2] Article 22(2) Reception Decree.
[3] CJEU decision, joined cases C322/19 and C385/19, 14 January 2021.
[4] Article 22-bis(3) Reception Decree, as amended by Article 12 Decree Law 113/2018 and L 132/2018 now only refers to beneficiaries of international protection, no longer to asylum seekers.
[5] Article 103 DL 34/2020 converted with amendments by L. 77/2020.
[6] Article 103 (2) DL 34/2020.
[7] Moi Circular of 19 June 2020; Moi Circular of 7 July 2020.
[8] Civil Court of Florence, intermim decision of 25 September 2020, available at: https://bit.ly/3up8TX6.
[9]Administrative Regional Court of Marche, interim measure no. 274 of 17 September 2020, available at: https://bit.ly/2Rjft2x.
[10] See report from Ero Straniero, based on data provided by the Ministry of Interior, September 2021, available at: https://bit.ly/3v5qjL3, 25.
[11] Update from Ero Straniero, 25 November 2021.