di
organismi ed associazioni di ispirazione religiosa attivi nel campo
delle migrazioni
ACSE
Caritas Italiana
Comunità di
S. Egidio
CSER
Federazione delle
Chiese Evangeliche in Italia
Fondazione
Migrantes della CEI
Jesuit Refugee
Service
UCSEI
Roma, 8.01.2002
OBSERVATIONS ON THE
PROPOSAL FOR A
COUNCIL DIRECTIVE
on the conditions of entry and
residence of third-country nationals for the purpose of paid employment and self-employed
economic activities
1. The draft
of the proposal is satisfactory with regard to the employment of highly qualified labour. However, for
less or unqualified labour, the Italian experience has demonstrated that, in
fact, direct contact between workers and employers is necessary before
employment is offered and accepted. The possibility of such contact (for
example, with reference to the Italian case, through sponsored or
‘auto-sponsored entry for the purposes of seeking employment) is not
excluded, since the proposal allows those legally present in the territory of a
member State to apply for a labour residence permit. This point is indeed
adequately considered in the explanatory memorandum (comments on Art. 5.2),
which makes explicit reference to legal presence for the purposes of tourism or
the search for employment. However, given the importance of this issue, it
needs to be explicitly dealt with in the body of the Directive itself.
Moreover, in order not to render this provision invalid, it is necessary to
make sure, in contrast to what is stated in the same comment, that while a
request for a labour permit is being considered, the legally present alien is
allowed to remain in the territory of the member State.
2. The
preference given to citizens of the EU seeking access to the labour market is
acceptable in principle. However, it is not acceptable to leave out of
consideration a fundamental element of any working relationship, which is the
trust between employer and employee: an employer cannot be compelled to give
employment to an individual merely because of his/her ranking in a list of job
seekers or because s/he responds to a formal publication of the job vacancy.
3. The fixed
periods for the “assessment of the domestic labour market situation”,
and especially, for granting, refusing or renewing a residence permit -
worker (or a residence permit - self-employed person)
appears irrationally long and completely unsuited to the exigencies and demands
of the labour market.
In general,
however, it should be explicitly stated that the rights of the workers whose
requests for a renewal of a permit are outstanding remain unchanged until such
time as they receive a definitive rejection of their claim (including, that is,
the necessary time for a decision on eventual appeals).
4. The
Italian experience shows that the provision of small services plays an
important role in the insertion of migrants into the labour market. Owing to
the insecure and unpredictable nature of the demand for such services, this
activity tends to be undertaken independently: it is unrealistic to assume that
a worker will have a confirmed employment contract for the provision of such
services. It would seem better to treat this “small-scale” activity
as self-employment and the foreign worker as a service provider. Where the
proposal appears to take adequate cognisance of the conditions of highly
skilled self-employed persons or financially-secure entrepreneurs, it does not
in relation to small-scale operators. In fact, it is almost impossible for
these workers to meet the criteria specified, such as producing a detailed
business plan, furnishing detailed information on the developments of the
proposed activity, notifying the authorities of any changes in the activity,
never mind being able to prove the positive impact of his activity on
employment and development in the member State. It would be more appropriate to
rescind the imposition of such conditions for small-scale operations,
especially in consideration of the fact that the proposal establishes as a
criteria for the revocation of a permit of residence prolonged dependence on
public assistance. This represents a sufficient instrument for avoiding any
prolongation of wholly unproductive self-employment or small-scale businesses.
5. Equally
neglected by the proposal are intermediate cases, that fall somewhere between
paid employees and self-employed, such as foreign members of existing
Cooperatives (whereas provisions relating to such cases already exist in
Italian law). Consistent with the principle of “competing for successful
models”, such intermediate cases should be included as
examples of alternatives to the economic needs test
(or to the beneficial effects test) –
with entry conditional on the economic strength of the Cooperative.
6. Where
there is a requirement that those wishing to enter to engage in self-employment
prove the validity of their qualifications and join the relevant professional
bodies, there is a need for the insertion of a clause permitting the individual
to obtain such proof or fulfill the necessary conditions prior
to entry (that is, a lifting of residency requirements). An alternative could
be to permit residence until such time as the necessary conditions have been
met. This avoids the situation in which someone cannot enter because their
qualifications have not been recognised, but their qualifications cannot be
recognised because they are not resident.
7. The
limited possibilities during the first three years for altering the activities
or the region for which the permit of residence was originally granted as well
as the shift (without prior authorisation) from working as an employee to
working as a self-employed person or vice versa, does not promote the optimal
use or allocation of resources. Paradoxically, such restrictive provisions are
flanked by proposed exemptions from all subsequent verifications of the economic
needs test during the validity of the residence permit. If, in
fact, the goal is to make sure that the foreigner is not engaged in
“useless” work or is not in competition with other workers already
present, then is would be sufficient and more coherent to maintain the test
when considering an application for a variation to the activity.
8. The
prerequisites for the renewal and the maintenance of residence permit -
worker (- self-employed person)
are too rigid because of the excessive weight they give to the possession of a
current employment contract – when considering an application for renewal
– and to periods of unemployment – when revoking a permit. The
Italian experience shows that an excessively fiscal approach serves only to
produce formal illegality, against which sanctions are oppressive, expensive
and useless. Moreover, it should be noted that such a penalisation of unemployment
a)
risks
undermining the declared objective of the proposal, that of defining “a pathway leading eventually to a more permanent status for
those who wish to stay”;
b)
works
against the principle of a flexible framework responsive to demographic changes
and needs (which obviously creates demands that are different from those of
achieving full employment);
c)
damages
the country of origin (in terms of greater unemployment and lesser
remittances), in contrast to the objective, declared in the recent Communication
of the Commission on an open method of coordination
for the community immigration policy, of maximising the
positive impact of migration as a factor for development for that country;
d) is
unacceptable, in so far as it ties the right to residence too closely to the
maintenance of an employment contract, depriving the worker of an important
part of his/her own contractual power (in sharp contrast to the equalisation of
foreign and national workers around the enjoyment of rights in matters relating
to the unions). This too works against the optimal allocation of resources. Moreover, the migrant worker is
forced to devote all of his/her energies to maintaining his/her right of
residence, with the result that plans for social insertion become increasingly
irrelevant to him/her.
It would be
better to substitute the criteria for the revocation of a residence permit -
worker with those specified in the case of the residence
permit - self-employed person (prolonged recourse to public
assistence). In this way, it would be possible to avoid the pointless
penalisation of workers with contracts characterised by short duration but high
remuneration, and workers capable of developing a positive form of mutual
support (for example, within their own national communities).
Moreover, if no one else, at least the worker who is made
redundant should be allowed to find and to accept employment that may be
different from that for which a residence permit - worker was originally issued (including
self-emploment or membership of a Cooperative) or in a different region.
9. Even if
it were acceptable, in principle, to tie residence permits to the availability
of an income not less than that which would trigger access to social
assistance, a broader range of evidence to demonstrate such availability should
be permitted: a savings account, income that has grown through the period of
employment, actual or potential income, the guarantee of a third party, etc.
Such provisions, in particular, offering partial positive relief to those
employed in the shadow economy (in line with, among other observations
contained in the recent Communication of the Commission on a community
immigration policy), would acknowledge the
income-generating activity of such workers until such time as the State can
effectively combat this form of exploitation. Furthermore, it would recognise
the value of insecure or precarious activities, which are in any case not insignificant economically
from the perspective of the member State.
10. Each
employee should be allowed a period of time after losing employment (either
because the employment finished or because the employee resigned or s/he was
fired or made redundant) to find an alternative position. This point is
relevant above all for those whose fixed term contracts expire (according to
the current proposal the expiration of such a contract would coincide with the
expiration of the residence permit – worker)
and those who are made redundant or who resign close to the expiry date of the
permit of residence. In both of these circumstances, the employee would lose
his/her right to stay not because of prolonged unemployment, but because of the
natural expiration of the residence permit: s/he would be heavily penalised in
spite of the fact that s/he may have been fully employed for the entire period of residency.
11. People
holding different residence permits (e.g., for study or family reasons) may
convert their permits to a residence permit – worker.
However, this carries with it the risk that that the permit holder may become
subject to more restrictive conditions when, for example renewing the
permit. In this way, a
student-worker or family member engaged in temporary or insecure labour may
find themselves in a less stable position, without any real advantage to any
party.
This point,
then, is further aggravated for students by the absence of any provision
guaranteeing people holding a residence permit – worker
(– self-employed person)
the right to pursue a course of study: the conversion of a residence permit for
the purpose of study into a residence permit – worker
(– self-employed person)
would not allow the worker to continue with his/her studies.
ACLI
ACSE
ADRA
Caritas Italiana
Comunità di S.Egidio
Federazione delle Chiese Italiane
Fondazione Migrantes della CEI
Jesuit Refugee Services
UCSEI
Segreteria di
coordinamento:
Via Firenze 38 - 00184 Roma - tel. 06 48905101 - fax
06 48916959
e -mail: srm@fcei.it