OBSERVATIONS ON THE PROPOSAL FOR A EUROPEAN COMMISSION DIRECTIVE ON THE CONDITIONS OF ENTRY AND STAY FOR EMPLOYMENT

The proposal as it is set out is only acceptable for subordinate highly qualified jobs or for autonomous work of considerable economic impact.

For subordinate work of low category, in fact, entry from abroad would be precluded by the need to stipulate a contract prior to entry (which is the equivalent under current law in Italy of application by name). Italian experience shows that, in fact, the establishment of a work relationship requires a direct meeting between worker and employer. The possibility of such an encounter (for example – in the Italian situation – through entry for “insertion in the job market” either with a sponsor or by self-sponsoring) is not excluded, but – given the primary importance of the matter – merits specific mention. It is necessary, that is, in accordance with the affirmation of the Commission’s Communication on a Community policy regarding immigration (para.3.4.21., “Procedures of presentation of requests and evaluation”), that methods of entry for stay for relatively (but not excessively) short periods should be permitted in order to seek work offers in person.

For autonomous work activity in which the foreigner is self-employed (for example, small service activities) access would be impossible due to the requirement relating to “effective benefits” of employment and of development in the member state. On the other hand, Italian experience shows how an important part of the activities which foresee positive insertion of immigrants can only with difficulty be related to subordinate work, given the temporary character of the services offered by the worker and the request for services on the part of the employer. The idea that a provider of small services must be certified by an international commercial concern regarding the relevance of the planned activity or employment in the immigration country is obviously unrealistic, as also is the idea that to take occasional advantage of such services the worker must be employed with a contract for subordinate work.

The criteria of “Community preference”, as a condition for entry of the foreign for subordinate work is in principle acceptable. In Italy however it was in force for 12 years, without any benefit for the national unemployed, up to 1998 (under law 943/1986). In fact, since it has been applied, it has only blocked entry of foreign workers for regularly declared duties, and led to work relationships, at best, disguised as those related to domestic work (exempt from obligations of control on availability) or, at worst, encouraged the birth and continuance of “moonlighting”.

The idea of making worthwhile a law of preference for Community workers (or foreigners already living in the European Community area for at least three years for subordinate work) of six weeks would require extensive reform of the structure of the labour offices. To transfer to a European

level what has not worked on a national or local scale does not seem opportune. Nor does it seem opportune to deny – once again – one of the fundamental elements for the functioning of a work relationship: the trust between employer and employed, it is not the position in a waiting list or the formal reply to an application which guarantees such trust.

On the other hand, the obstacle introduced by the confirmation of non-availability would be of limited importance (a wait of six weeks ) in respect of other bureaucratic obstacles which Italian experience has unfortunately demonstrated to employers and immigrants. If today, for example, the confirmation of non-availability was imposed as a condition for effective entry for work of foreigners staying in Italy for insertion in the work market, the delay in terms of time which such confirmation would represent would mostly cushion the time required for the issuance of the corresponding law on quotas and the carrying out of other practical matters.

The limitations relating to the possibility of using, in the first three years, the stay permit for work activity for reasons other than those originally envisaged, or indeed, in different regions from that in which the activity has been authorized, contrast with the criteria of best use of resources; the same can be said of the preclusion of the passage from subordinate work to autonomous work and vice versa. Paradoxically, such restrictive rulings are related to the forecast of exemption from further control of criteria to effective economic needs (control of non-availability for subordinate work, check on positive effects of employment or development for autonomous work) in the period of validity of the stay permit. In fact, should one wish to avoid that the foreigner admitted to carry out a determined “useful” employment should turn to other “useless” employment or work in competition with workers already present, rather than blocking the change of activity it should at best be subject to the controls foreseen for new arrivals.

The requirements for renewal and maintenance of the stay permit are too rigid, due to the importance given to the current employment for renewal (for subordinate work), or – on the negative side – of periods of unemployment or scarcity of means blocking renewal of the permit. Italian experience shows that an excessively fiscal attitude does no more than produce formal illegality, sanctioning of which is, at the same time, counter-productive, expensive and useless. Furthermore, penalization of unemployment seems

a) anachronistic, at a time when one hopes for greater flexibility in the labour market,

b) unacceptable, in the sense that tying up the continuance of the work relationship excessively, deprives the worker of a relevant part of his/her contractual rights.

Under both aspects, the best use of resources seems once again to be put at risk.

Even if it might be acceptable, in principle, to condition stay for employment to availability of means for a minimum amount below which social assistance would be required, it should be established:

a) that the demonstration of such availability is required only when the renewal of the permit is requested (one should not therefore revoke a currently valid permit for reasons linked to means or unemployment).

b) that availability can be demonstrated in the wider sense: holder of savings matured during the period of the stay permit, current or foreseeable income, guarantee by third persons, etc.

This last provision, in particular, giving a positive reflection on non-declared work activity (in line, furthermore, with certain observations contained in the above mentioned Communication of the Commission), would avoid pressure on the foreign workers for the lack or insufficient declaration of such work. In addition, it would permit evaluation of temporary work, which however is not without economic relevance.

The impossibility of carrying out work activity without the correct “stay permit for work (or autonomous work)”, although it does not veto per se holders’ conversion of other permits (for study or for family reasons, for example), forces them to enter into a different category, with reference, for example, to conditions of renewal of the permit. In this way, the student-worker or the family member with temporary employment, who would be able to renew the stay permit for the original reasons, risk their position being destabilized, without any advantage.

The question regarding the status of students is further aggravated by the lack of provision for right to study for the holder of a work permit; the conversion of the study permit into a work permit precludes the possibility of continuing study.

The possibility of revocation of the permit for “reasons of public policy” (such is the Italian text) seems generically unacceptable, unless it is intended as “reasons of public order”.

ADRA

Federation of Protestant Churches in Italy

Community of S. Egidio

Jesuit Refugee Service (Centro Astalli)

UCSEI

Senza Confine

Ferruccio Pastore