«EXPLOITED LABOUR TWO YEARS ON THE ‘ROSARNO LAW’ FAILS TO PROTECT MIGRANTS EXPLOITED IN THE AGRICULTURAL SECTOR IN ITALY Amnesty International ...»
The contradiction between the criminalization of irregular migration and the right to seek and obtain justice for human rights violations is particularly evident in the requirement, imposed by the Rosarno Law, to cooperate in criminal proceedings in order for irregular migrant workers victims of labour exploitation to obtain a residence permit for humanitarian reasons. Prosecution authorities pointed out to Amnesty International the practical difficulty of maintaining separated two different –and opposed- positions, as they would listen to irregular migrant workers as witnesses and victims of a crime, while, at the same time, prosecuting them for irregular migration.52 Between 2008 and 2014, Amnesty International repeatedly called upon the Italian government to repeal the provision criminalizing ‘irregular entry and stay’, which creates obstacles to irregular migrants’ access to justice and is therefore inconsistent with Italy’s obligation to guarantee a practical and effective remedy for human rights violations. The organisation notes that in April 2014 the Italian Parliament adopted Law 67/2014, which delegates the government to abrogate the crime of ‘illegal entry and stay’, turning it into an administrative offence.53 The government has 18 months to comply with the Law.
RESIDENCE PERMITS UNDER THE ROSARNO LAW IN PRACTICE
As official data are unavailable, a quantitative analysis on the effectivity of the Rosarno Law is currently impossible. However, testimonies collected by Amnesty International from the Questura and the Prosecutor’s office in the areas of Palmi, Reggio Calabria, Caserta, Latina and Roma54 indicate that an extremely limited number of residence permits for humanitarian reasons has been issued under the Rosarno Law since its entry into force. In the Calabria region, no residence permits had been granted by the Office of the Prosecutor in Palmi between the entry into force of the Rosarno Law and October 2013; one had been issued by the Questura of Reggio Calabria.55 In the Campania region, the Questura of Caserta did not register any quantitative impact of the Rosarno Law on the number of permits issued as they received only a few applications for residence permit on the ground of labour exploitation between July 2012 and October 2013.56 In the Lazio region, the Head Prosecutor of Latina did not receive any request of residence permit under the Rosarno Law between July 2012 and October 2013.57 Such data have been confirmed as current by the Office of the Prosecutor in Reggio Calabria 58, Rome59, Latina60 and by the Questura of Caserta61, following Amnesty International request of updates in September 2014.
Even considering the relatively recent entry into force of the Rosarno Law, these reports seriously call into question its effectiveness and ability to address the main factors that hamper irregular migrant workers’ access to justice.
THE OBSTACLESDuring the course of its research, Amnesty International registered several shortcomings in the concrete applicability of the Rosarno Law, deriving from the restrictive nature of the provisions providing for the granting of a permit.
First, the instability and precariousness of the work relation, typical of the agricultural sector in Southern Italy, especially during picking seasons, makes it difficult for an exploited migrant worker to identify his/her employer. Joshua (not his
real name), a migrant worker from Ghana, told Amnesty International:
‘Employers change every day. Who am I going to report? And how am I going to support my claim?’.62 It is unusual for irregular migrant workers in Southern Italy to know their employer’s name and address, as they often change employer every day and/or find work through a caporale (unlawful gangmaster). Unstable work relations are considered to be a factor leading to exploitation.63 The requirement under the Rosarno Law to report the abusive employer to the authorities, therefore, is unrealistic and hinders safe access to protection, precisely in those situations where a migrant worker is more vulnerable to labour exploitation.
Second, the requirement to cooperate in the criminal proceedings against the employer fails to take into account the mobility intrinsic in migrant agricultural work. Many migrant agricultural workers follow the harvesting and picking seasons around the country: they may work in Calabria in winter, during the citrus-picking season; in Apulia in summer, during the tomato and watermelon-picking season;
elsewhere during the other months of the year. In light of the average length of criminal proceedings, it is often impossible for migrant workers to remain in one place long enough to cooperate in them.
Finally, the high threshold of the definition of ‘particularly exploitative working conditions’ under the Rosarno law makes it extremely difficult for the migrant workers to produce proofs of the exploitation. How to substantiate the claim that not only the employer violated the law, but he also exposed workers to an actual danger? This is particularly problematic in a context where labour inspections, which could provide the necessary evidence to sustain a claim, are few and ineffective.64
CONCLUDING OBSERVATIONS AND
RECOMMENDATIONSSince Amnesty International published its first report on labour exploitation of agricultural migrant workers in the agricultural sector in Italy, the Italian authorities have failed to effectively address the problem and to ensure that victims of labour exploitation have access to justice and can obtain full remedy.
At the time of Amnesty International’s visits in Rosarno, Latina and Caserta in October 2013, migrant workers were still facing exploitative working conditions. The fear of losing their source of income and being detained and deported continues to prevent many of them from seeking justice.
The right to access justice itself continues being significantly undermined by the Italian legal framework. The crime of ‘illegal entry and stay’ creates a significant obstacle to access to justice for irregular migrants. The threat of being identified as irregular and consequently deported not only worsens the migrants’ position of vulnerability vis-à-vis their employers, but it also seriously compromises the effectiveness of any measure intended to address the exploitation they suffer. At the time of writing, the Italian government had not yet complied with Law 67/2014, which delegates it to abrogate the crime of ‘illegal entry and stay’, turning it into an administrative offence.
The entry into force of the Rosarno Law did not significantly affect or address the problem of labour exploitation in Italy. The new system of residence permits for victims of ‘particularly exploitative working conditions’ proved to be largely ineffective, as confirmed by the extremely low rate of its application. Even labour inspectors, whose primary duty should be to ensure the protection of workers, have become instruments against ‘illegal immigration’, in stark contrast with the relevant international obligations binding Italy.
In conclusion, Italy’s restrictive implementation of the EU Employers’ Sanctions Directive, along with its failure to amend its migration policy and repeal the crime of ‘illegal entry and stay’, pose a serious threat to the full enjoyment of the human rights of migrants in an irregular situation. As of yet, the Rosarno Law seems to be another lost opportunity to take the necessary steps to address more comprehensively the serious violations of the rights of migrants in the country.
Italian authorities should:
undertake all the necessary steps to respect, protect and fulfil the human rights of migrant workers, irrespective of their migration status, in compliance with the international and regional obligations they are bound by;
To ensure access to justice for irregular migrant workers who suffer labour
Implement Law 67/2014 without delay and abrogate the crime of "illegal entry and stay";
implement the ILO Committee of Experts request ‘to take the necessary measures in order to re-establish labour inspectors in their duties’ as defined by the Labour Inspection Convention n. 81, i.e. to protect workers, not to enforce immigration law;65 provide legal assistance and support to migrant workers in order to facilitate their access to justice;
To fully implement the Employers’ Sanctions Directive;
enact procedures and mechanisms to ensure that irregular migrant workers can effectively and safely introduce a claim against their employer for any outstanding remuneration, and eventually enforce a judgment, including in cases in which they have, or have been, returned;
revise the requirements under which the residence permit for victims of ‘particularly exploitative conditions’ is granted.
Amnesty International, Exploited Labour: Migrant workers In Italy’s agricultural sector (Index: EUR 30/020/2012), December 2012, pp. 12-20 http://www.amnesty.org/en/library/info/EUR30/020/2012 “Allo straniero è riconosciuta parità di trattamento con il cittadino relativamente alla tutela giurisdizionale dei diritti e degli interessi legittimi, nei rapporti con la pubblica amministrazione e nell'accesso ai pubblici servizi, nei limiti e nei modi previsti dalla legge.” Art. 2.5, Decreto legislativo 25 luglio 1998, n. 286.
Article 47 of the Charter of the Fundamental Rights of the European Union, 2000/C 364/01, legally binding on the European Union since the entry into force of the Treaty of Lisbon, in December 2009.
UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work, UN Doc. E/C.12/GC/18, 6 February 2006, para48.
Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, Contribution by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families to the High-Level Dialogue on Migration and Development of the General Assembly, UN Doc. A/61/120, par15(f).
Article 9, Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, 1975 (ILO Convention No. 143).
Italy ratified the Convention on 23 June 1981.
See also: ILO Migrant Workers Recommendation, 1975 (No. 151), para34.
Concluding observations of the Committee on the Elimination of Racial Discrimination, Italy, UN Doc. CERD/C/ITA/CO/16-18, 9 March 2012, para23.
Legislative decree No. 109 of 16 July 2012, (Rosarno Law). Transposition of the Directive 2009/52/CE of the European Parliament and of the Council 18 June 2009 implementing the Directive 2009/52/EC, providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals.
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 (Employers’ Sanctions Directive).
Relazione illustrativa, annexed to the Draft Legislative Decree implementing Directive 2009/52/CE submitted to the Senate on 17 April 2012, http://documenti.camera.it/apps/nuovosito/attigoverno/Schedalavori/getTesto.ashx?file=0466_ F001.pdf&leg=XVI.
Report by the Special Rapporteur on the human rights of migrants, François Crépeau, Addendum: Mission to Italy (29 September–8 October 2012), UN Doc. A/HRC/23/46/Add.3, 30 April 2013, para87, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A-HRC-23Add3_en.pdf Amnesty International, Exploited Labour: Migrant workers In Italy’s agricultural sector (Index: EUR 30/020/2012), December 2012, pp. 35-36.
Interviews in Rome and Caserta were held on 25 October 2013; in Latina on 28 October 2013; in Rosarno and other towns in Calabria from 28 to 31 October 2013. Pontinia, Sabaudia and Bella Farnia were visited on 8 of November 2013.
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 (Employers’ Sanctions Directive), Article 1.
Considerandum 2, ibidem.
Ibidem, Article 3.1.
Ibidem, Articles 5 and 7.
Where appropriate, employers should pay any cost arising from sending back payments to said country. Article 6.1, ibidem.
Article 6.2-4, ibidem.
Article 13, ibidem.
Ibidem, Article 9.1.
Article 2.i, ibidem “Condizioni.
Article 13.4, ibidem.
Article 6.5 and article 13.
ENAR, EWL, PICUM and SOLIDAR, ‘Employers’ Sanction Directive: Migrant workers, not employers, pay the price of their exploitation’, Joint statement, 4 February 2009, http://picum.org/picum.org/uploads/file_/Joint_Statement_Employer_Sanctions_Directive_4_F eb_2009.pdf. N. Flamigni, ‘Europa - Direttiva sanzioni: il prezzo più alto lo pagano i migranti’, 5 March 2009, Melting Pot. http://www.meltingpot.org/Europa-Direttiva-sanzioni-ilprezzo-piu-alto-lo-pagano-i.html#.VD-GZ_l_sv5 The main focus of labour inspectors should be the enforcement of the ‘legal provisions relating to conditions of work and the protection of workers’, not the enforcement of migration law. Article 6, Labour Inspection (Agriculture) Convention, 1969 (No. 129), ratified by Italy with Law 157/1981; Article 3, Labour Inspection Convention, 1947 (No.
81), ratified by Italy with Law 1305/1952.