From now on employers of illegal immigrants in Italy will face heavy sanctions under the Legislative Decree No. 109 of 16th July 2012, which enters into force today.
The Decree adopts the Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals.
The Decree gives employers of irregular immigrants a grace period to regularise their workers in order to avoid the sanctions.
According to the Italian Immigration Law, an employer of an irregular immigrant risks arrest and a prison sentence ranging from three months to one year, and a fine of 5,000 Euros for each worker hired.
The employer also risks administrative sanctions for failing to pay the social security contributions while the worker risks expulsion.
Under the new Decree, an employer who has been condemned, even if it’s not a definitive sentence, will be banned from bringing foreign workers to Italy.
Ministry of Labour will have to carry out effective and adequate inspections especially in the economic sectors where most illegally residing immigrants find work. The data on inspections will have to be communicated to the European Commission.
Where an employer is found to be hiring an illegally staying third-country national, the law provides that an employment relationship of at least three months duration be presumed unless, among others, the employer or the employee can prove otherwise.
The Directive 2009/52/EC says that the employer shall be liable to pay any outstanding remuneration to the illegally employed third-country national.
“The agreed level of remuneration shall be presumed to have been at least as high as the wage provided for by the applicable laws on minimum wages, by collective agreements or in accordance with established practice in the relevant occupational branches, unless either the employer or the employee can prove otherwise, while respecting, where appropriate, the mandatory national
provisions on wages,” the Directive 2009/52/EC says.
It further specifies that the employer shall be liable to pay “an amount equal to any taxes and social security contributions that the employer would have paid had the third-country national been legally employed, including penalty payments for delays and relevant administrative fines.”
The Directive 2009/52/EC also states that the “employer shall be liable to pay the costs of return of illegally employed third-country nationals in those cases where return procedures are carried out.”
Under the Legislative Decree No. 109 of 16th July 2012, an exploited illegal immigrant who reports the employer to the authorities will be issued a Permit of Stay for humanitarian reasons.
It introduces aggravating circumstances for cases of exploitation of irregular immigrant workers. The prescribed sentences are increased by a half in the following cases: if the employer hires more than three irregular immigrant workers; if they are minor children aged under 16 years; and if they are exposed to dangerous working conditions.
Only in the above the cases, if the worker reports the employer, and are ready to cooperate in criminal proceedings against the employer, they can be issued a Permit of Stay for humanitarian reasons.
Such a permit will be valid for six months, and renewable throughout the case. It will be possible to convert it into work permit in case the holder finds another job.
The new measure will be applicable for instance to irregular immigrants working under inhuman conditions in farms. There are also many domestic workers, construction workers, etc. who are exploited but continue working all the same because they are undocumented.
The Legislative Decree No. 109 of 16th July 2012 gives employers a grace period to regularise their workers in order to avoid heavy sanctions. They’ll be able to declare that they are hiring irregular immigrants and apply for their regularisation from 15th September to 15th October 2012.
Employers applying for regularisation are exempt from criminal, civil and administrative sanctions foreseen by the law for hiring illegal immigrants while their applications are being processed.
At the time of submitting applications, employers will have to prove that they have paid an application fee of 1,000 Euros for each worker.
Then, at the time of undersigning the Residency Contract (contratto di soggiorno), the employers will have to prove that they have been regularly paying social security contributions and taxes for at least six months, or throughout the period they have been hiring the workers.
Each irregular immigrant worker applying for regularisation will be required to show a document issued by public authorities proving that he/she has been in Italy since 31st December 2011.
Successful applicants will be issued Permits of Stay for work.
Employers who fail to apply for regularisation of their illegal immigrant workers between 15th September and 15th October 2012 will face the tough sanctions prescribed by the new Decree.