Луиджи Мелика
Надан Петрович

Опыт стран ЕС по управлению иммиграцией

1. General Picture of the conditions of the entry in European countries for labour reasons

Despite the recrudescent of the xenophobia, persists in Europe a clear economical and political interest toward the legal immigration: slogans such as "stop to the immigration" or "slam the doors of Europe to the new immigrants" have no future in the present era of the European history.

The demographic decrease and, on the other side, the paradox that "to a considerable number of workers registered as unemployment correspond - everywhere in Europe - a considerable job vacancies at the lower levels" are common problems in all European countries.

Those factors affect not only the labour market, but also, prospectively, the innovativeness of the economy since qualifications and knowledge of people are becoming crucial growth factors.

So, the competitiviness of the economy needs, in any country, flexible labour norms in general, and in particular, flexible regulatory systems of the entry and stay of third countries' workers; making any effort, in the same time, to protect their constitutional rights, assuring the fundamental need of security of every territory.

Accordingly, the difficulty to elaborate legislation capable of checks and balance the above mentioned factors have gradually favourite the increase of the illegal immigration also because the labour market offer work conditions sufficient for the subsistence minimum even below to the legal level.

Such fenomenum favourites the proliferation of criminal organisations in almost every continent which take an advantage and high profits of this situation. The poverty and the miserable situation of the immigrants, in fact, inevitably force them to find an alternative way of life and therefore the criminal organisations had set up a sort of network spread in various countries with local connections whose main task is the illegal transportation of such immigrants, through the Middle East as well through the African continent, being, such desperate people, willing to pay high fees for the service.

In other cases immigrants who could not pay the fee for the transportation are willing to owe the same criminal organisation for a relevant amount of money that will be honoured by working for them (once arrived in Europe) for several years in slavery conditions (it is the case of Chinese workers in the texile farms or of the prostitutes from Africa).

All those factors show how a flexible immigration's law must in parallel:
a. avoids that the criminal organisations take a profit from such flexibility;
b. safeguards the fundamental interest of the security of the State;
c. protect the constitutional and social rights of the immigrants.

By these arguments derives that immigration issues should be addressed through a complex strategy and not only through a set of rules.

In syntesis the core meaning of the immigration's related issues in Europe is currently covering the following topics:

The response of European legislations, for their part, only recently appear to be more crebible and properly in the direction of the main mentioned factors.

Only recently, in fact, we have registered a significant implementation of the immigration rules since new reforms have been launched, in UK, dated 2004, Germany 2005, Italy, 2002 and in France 2003 and Spain 2003 - 2004 …

By this fact derives that only recently is started to develop, in Europe, the concept of "management" of immigration related issues.

A few norms were also enacted by the European Union in its attempt to coordinate Member States strategies on immigration, since the Treaty of Schenghen - which was incorporated in the European Treaty in 2002- had introduced a system of common visas valid in each European State.

It must be noticed that at the present stage of the European Union's institutional development Member States remain free to admit (or not to admit) immigrants from third countries for labour reasons.

Althought the European Commission has so far enacted a few directives respectively dedicated to entry and stay of immigrants in the EU area, Member States are still substancially free to fix the requirements to entry into their respective territory for labour reasons. This fact is considered by the doctrine a clear sign of the persistence of the sovereignty's power in favour of Member States.

Having in mind those arguments we quote States:

Another relevant aspect regards the legal position of the applicants of an entry visa for work reasons since we register systems (such as Italy and Spain) where the fulfilment of the law's conditions enable the immigrant to obtain an entry visa, and, once entered the country, to obtain the correspondent permit of stay and system, such as UK and Germany, where the Immigration Office maintains a discretion in refusing the entrance. Going into detail, while in Germany the Immigration Office has to base his or her decision on "the general principles of the immigration law and on the needs related to the economical situation of the country", as far Italian's rules are concerned, the Immigration Authorities, once verified the existence of a quota and once checked the lack of demands from other resident unemployed workers, have no power to refuse the entrance.

As regards the techniques used to construe the annual decrees a few European systems have adopted very sophisticated criteria, sometimes including specific quotas in favour of the immigrants, whose countries had concluded bilateral readmission agreements with the host State (Germany and Italy). In a few cases a proper quota is fixed in favour of workers who are descendants of citizens of the European countries (Italy); in other cases, a similar status, allows the free entrance (Persons with United Kingdom ancestry in the UK).

Another tendency recently emerged is the attitude to select qualified workers whose admission is allowed without any specific job offer.

An example of this attitude is the Highly Skilled Migrant Programme approved in the UK.

Because the entrance is granted without any specific job offer, stringent conditions have been fixed. The applicant, in fact, must fulfil the requirements specified by the Secretary of State and basically that he or she must intend to make his main home in the United Kingdom, must be able to accommodate and maintain himself and his dependants without recourse to public funds and he must hold a valid United Kingdom clearance for entry in that capacity.

To the same end, the UK Parliament has recently approved an Immigration Point System.

Following the Australian model such system of selecting high skill workers from the third countries is totally based on their relevant qualification so as to permit them to enter the country without a specific job offer from a prospective employer. The selection's criteria consists of a necessary number of points assigned by the UK authorities up to the qualifications, salary, work experience, etc. of the applicants. Where there are skill shortages, an additional number of points would be allocated.

The Government annually fixed a specific quota for this category of immigrants.

2. A brief outline of existing regularisation procedures

Most of the information about the different regularisation's procedure are already known. The report certainly will focus the most relevant nationals procedures.

We also need to have in mind that recently a few European systems have elaborated a set of criteria for transforming an illegal status of an immigrant into a legal one, which is, in our view, a way to regularise a person going beyond the technique of adopting general amnesties.

In this category we may include, for instance, the right, granted by the Italian Law, to an illegal immigrant, not to be deported if he or she has been living together (i.e. in the same house) with Italian parents or with his or her husband or wife. The same rule existed in the previous German Law, which provided for a "residence title for exceptional circumstances" (Aufenthaltsbefugnis, Sec. 30 of the Aliens Law); it was the major instrument to regularise a person who had no entitlement to any other residence permit.
The same logic exists in the new German system, through the possibility to renew a permit of stay originally issued for employment into "a social reasons permit of stay", whenever the titular is not in a position to fulfil all the requirements prescribed by the law. Behind such specific rule is hidden - in our view - a way to regularise illegal immigrants (an immigrant who does not renew his or her permit of stay automatically becomes illegal).

The same goals are achieved by the French legislation, which allows an illegal immigrant to be regularised if he or she is able to prove to have lived in the territory for more than ten years or more than fifteen in case of regular entrance as a student.

Another way to regularise illegal immigrants is assured in favour of the parents of a minor living illegally in the country: such possibility may be undertaken when his or her psychological or physical medical conditions are so serious to require the entrance of a parent or their regularisation if already in the country in an illegal capacity.
A similar rule exists in the Italian Immigration Law, whose norms empower the Minor Tribunal to grant the correspondent authorisation in favour of the parents who are allowed to legally remain in the territory.

More general rules have been enacted by the Spanish Parliament since Spanish municipalities may register illegal immigrants. Therefore, a registered immigrant, after having spent a continuous period of five years in the Spanish territory, if titular of a job offer and of an accommodation, is entitled to ask the Immigration Authorities for his or her regularisation.

3. The basic rules, which regulate the extention of the permit of stay

a. The renewal

Regarding the procedures for the extention of the permit of stay, European Member States differ from systems - Uk and Germany - whose regulations require the applicant not to modify the work sector he or she was originally hired or sometimes even the original employer, and systems whose rules open the titular to the possibility to apply for a new job at the moment of the expire of the permit of stay (Italy).

A significant difference also exists on the ground of the discretion assigned to the authorities entitled to renew the document, since in the UK and Germany persist relevant discretion (being - the authorisation - subject to the fulfilment of the same requirements prescribed for the entrance, and therefore, in conformity with public interest, or to the "general principles of immigration law" and due to the "economical general conditions of the country").

Other norms regulate the procedure of the renewal of the permit of stay in case of loss of job; to this end the new Italian legislation has reduced the duration of the permit of stay (expressely called "for searching a new job") that can be grant (only once) in such cases. The reduction was passed from one year to six months.

Particular requirements must be met for students who have terminated their courses and who decide to extend their stay in the country for working reasons. The rigidity of the Italian system appear clear since an applicant is required not only to meet the criteria prescribed by the law but also to be submitted to the annual quota system. By this fact derives that he or she, once fulfilled the requirements prescribed by the law, once terminated his or her study programs (secondary school, university, post graduate courses) might be compelled to leave the country if the quotas are not sufficient.

Further norms regulate the possiblity of using the permit of stay originally granted for different activities than those prescribed in the original permit of stay; different norms regulate the convertion of the permit of stay at the moment of its expiry. Such norms, where existing (Italy), picture the correspondent system as more flexible than those which forbid such possibilities.
Probably, the mentioned flexibility reflects the rigidity of the entry requirements and basically the quota system that, in combination with other obligations, sets up a strong filter for entry.

b. the Long term permit

The right to work in a different sector or to move to a different employer is granted in the UK and Germany as soon as an immigrant acquires the long term permit of stay.

The European regulatory systems, in this field, are very similar.

It is generally prescribed an obligation to have spent a continuous period in the country (from four to six years), to meet the same requirements prescribed for entrance, to have a clean criminal record and to demonstrate to be definitively integrated in the territory (Germany).

Such norms acquire a significant rigidity once accompanied by the lack of a fixed minimum period of permanence, since the authority charged of the issuance of the long term permit of stay, in this event, maintain a relevant discretion (Germany).

Interesting and innovative provisions are finally enacted regarding the self employed foreign workers, whose status has only been recently recognized and properly enforced by existing European legislation.