Scams, bureaucratic slowness, force majeure: there can be many and different types of causes that lead to the non-establishment of a working relationship between a non-EU immigrant and the employer who brought him to our country with the promise of an assumption. But who is responsible for checking whether, behind the failure to stipulate, there are legitimate reasons (such as, for example, the closure of the company due to the death of the owner), or a criminal practice that fuels irregular immigration and, consequently, illegal work and exploitation? To answer this question, it is useful to start from article 117 of the Constitution, which assigns legislation on immigration to the State exclusively. This does not mean, however, that any type of involvement of local authorities and the Regions in this matter is excluded: for example, they are entrusted with responsibilities regarding the inclusion and integration of immigrants, in particular in the areas provided for by concurrent legislation between the State and the Regions or under the exclusive competence of the latter (for example: health, education, training, supplementary social security and safety at work). But Are Regions, Municipalities, Metropolitan Cities and Provinces also required to check that the rules regarding the hiring of non-EU workers are respected? The answer is no. The Consolidated Law on Immigration (Legislative Decree 25 July 1998, n. 286), as well as the subsequent implementing decrees and circulars, assign competence to the government, through the territorial divisions mainly of two ministries: those of the Interior and of Labor and of social policies. The prefects, in fact, reported the anomalies. The instrument at the center of the system is the One-stop shop for immigration, established in each Prefecture, which makes use of the collaboration of representatives of the Police Headquarters and the Ministry of Labor (in particular the Labor Inspectorate).
The counter
Among the tasks of the Help Desk is to issue authorization for the hiring of non-EU foreign citizens residing abroad for subordinate, fixed-term or permanent and seasonal work, within the quotas established by the flow decree. The process is as follows: the employer, through an electronic procedure, requests authorization from the office of the province in which the work activity of the immigrant who is intended to arrive in Italy will be carried out. To issue it, the Help Desk must first acquire the favorable opinion of the Police Headquarters and the Territorial Labor Directorate, which must verify, within the scope of their competence (through the police and the Inspectorate), that the worker and employer are in possession of of all the required requirements. The control provided for by law, therefore, is essentially preventive. In the subsequent phase, in fact, if the authorization is granted, the foreigner will have to go to the Italian consular authority in his country of origin to obtain the entry visa and, once he has arrived in Italy, he will have to present himself, within 8 days, at the competent One Stop Shop to sign the residence contract with the employer, which gives the right to a residence permit for subordinate employment reasons. And this is where the problems arise. In fact, it is not certain that the workers, even with regular clearance and visa, will ultimately sign the contract. In the meantime, for example, the company may have gone bankrupt or changed ownership. Then there is the fraudulent case of those who present the application in exchange for money from the immigrant, who only wants to enter Italy, then remaining there as an irregular citizen, or going elsewhere in Europe. Until a few years ago, among the reasons for the failure to establish an employment relationship, there were delays by the help desk and consular offices in issuing clearances and visas. Even for a seasonal worker it reached 6 months, perhaps making the hiring no longer useful. At that point, the worker who arrived in Italy regularly, but in vain, often became illegal, entering the circuits of illegal work or crime, rather than returning to his country.
The Cutro decree
To solve this problem, with the flows decree of 2022, and subsequently with the so-called Cutro decree of 2023, some simplifications were introduced which, however, lent themselves to distorted use. Today, in fact, the One Stop Shop must issue the authorization within 60 days of the request presented by the employer, even if he was unable to complete all the required checks on the requirements in time. Immigrants can, therefore, focus on the inefficiency of the State in carrying out checks, entering our country through complacent, sometimes even non-existent, companies. Further accelerations in checks were then introduced for applications submitted through employers’ associations. Finally, the already large mesh becomes very large for seasonal workers, for whom, under certain conditions, silent consent is expected: after 20 days from the date of receipt of the application, if the authorization is not denied, the request is considered accepted. Ultimately, under current legislation, it seems that the only way to combat the distorted use of procedures is the investigative activity of prosecutors and law enforcement agencies.
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