Exclusive Q&A on Immigration Law with Marco Mazzeschi
Posted: 7th September 2017 08:46Who are the main regulators and what legislations apply to immigration law in your jurisdiction?
Mazz:Under Italian jurisdiction, the following authorities administer the immigration system:
- Ministry of the Interior. Prefectures represent such Ministry throughout the Italian territory. A Prefecture “Prefettura” is established in each province. Each Prefecture has an immigration office “Sportello unico per l’immigrazione”.
- Labour Office (‘Direzione Territoriale del Lavoro’, or DtL);
- Immigration Police Department (Questura Ufficio Immigrazione);
- Central Directorate of the Immigration and Border Police (Direzione Centrale della Polizia dell’Immigrazione e delle Frontiere);
- Ministry of Foreign Affairs.
Italy has a civil law system, which conforms to international and communitarian rules. Jurisprudence is not strictly binding but can influence subsequent decisions.
The sources of law are organised hierarchically. Italian main sources of law are:
- The Constitution: is the main source of law.
- The laws (codes, parliamentary laws, regional laws)
- Regulations provide details about the enforcement of laws.
- Customary law
- In Italy, the main sources of immigration law are:
- Legislative Decree No. 286 of 25 July 25, 1998 – Consolidated Code on immigration and on dispositions applicable to foreign citizens;
- Presidential Decree No. 394 of 31 August 31, 1999 – Implementation and enforcement of dispositions set forth by Legislative Decree 286/98;
- Ministry of Interior Directive 1.3.2000. Definition of means of support for entrance and stay in the country;
- Legislative Decree No. 30 of 6 February 2007— Implementation of EU Directive No. 2004/38/CE on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States;
- Interministerial Decree No. 850 of 11 May, 2011 – Definition of various types of visas and conditions for their issuance.
Can a business send an employee to work in your jurisdiction if there was an urgent business need and how quickly could they start?
Mazz:Only companies who have signed a Protocol Agreement with the Ministry of Interior can apply for a fast track procedure for obtaining intra-company work permits (workers must remain hired by the sending company). Italian immigration procedure for work or business purposes varies depending on: (i) the length of the foreign citizen’s intent to stay in Italy, and (ii) the nature of the activities the individual is asked to carry out.
An individual willing to stay for less than 90 days every 180 days, to carry out activities which cannot be qualified as “business” should obtain a specific work permit and work visa. Italian law does not provide a clear definition of the activities that can be carried out while “on business”.
Business visitors are allowed to travel in Italy (and visit the other Schengen countries) for “carrying commercial activities, to conduct negotiations and stipulate agreements, to attend seminars, to install, check and repair products and equipment sold or purchased on the basis of commercial and industrial cooperation”.
Any “business” trip should be more for the benefit of the sending company than the Italian entity, the visitor should be paid by and receive its instructions from the sending company.
If the individual is a Visa National, he will need to obtain a business visa. This must be requested at the Diplomatic Italian Authority (Italian Consulate/Embassy) in the individual's country of residence. Processing time takes between five to 15 days from the application date.
Non Visa nationals (from countries which have a visa waiver agreement with Italy and Schengen countries) can enter on business, without need of a visa.
If the foreign national needs to work and stay in Italy (i.e. if the activities cannot be qualified as “business” or in any event if the assignment lasts for more than 90 days), Italian Law mainly distinguishes between three kinds of work permits: subordinate workers, autonomous workers, and assigned workers.
Can you talk us through the visa application process?
Mazz:Stage 1: Work Permit application (estimated processing time approximately two to three months from submission of documents).
The work permit application is filed online. This can be filed as soon as the relevant information is received and the original supporting documents are being prepared. The application is filed on behalf of the Italian host company and is sent to the local immigration office having jurisdiction over the worker’s place of work in Italy. After submission of required documents authorities perform the required background checks and finally issue work permit approval.
Stage 2:Employment Visa application at relevant Italian consulate, which has jurisdiction over the worker’s country of residence (estimated processing time –is one to two weeks). The relevant consulate is notified of work permit approval and issues a work visa upon the assignee filing the application; processing times vary between Consulates but usually takes seven to 21 days from filing. The passport is retained by the consulate during processing time.
Stage 3:Signing contract of stay and residence permit filing (within eight days of arrival; subject to availability of appointment at government offices; depending on employee's chosen travelling date not accounting for any delay). Assignee travels to Italy and starts the in-country formalities within eight working days of arrival: the worker must go to the Immigration Office, accompanied by a representative of the Italian company or by a delegate, to sign the Contract of Stay (Contratto di Soggiorno) and consequently file the residence permit application. Upon completion of this stage assignee will be compliant to live and work in Italy. [Note that this would require: either declaration from a hotel regarding a long term hotel reservation or long term lease, registered with authorities and housing feasibility certificate.] Foreign nationals applying for a permit valid one year or more in Italy must execute an agreement with the Italian State, named Integration Agreement (Accordo di Integrazione). The Agreement regulates the residence permit point grading system. During their stay, in order to maintain a regular immigration status and to be eligible for permit renewal, foreigners must gain credits to reach the required level of integration in Italian society and Italian language knowledge (A2 level).
Stage 4:Residence permit card approval within three to four months from submission, fingerprints appointment included.
What are the different options available to an employee or individual looking to relocate?
Mazz: Autonomous work visas are subject to the availability of quotas. They can be issued for: (i) Activities that are subject to a license (such as doctors, lawyers, architects, etc.): the procedure is the most lengthy one, as the foreign worker needs to register first with the relevant professional body, (ii) Freelancers and anyone willing to carry out non licensed activities,
(iii) Entrepreneurs and Officers of Italian companies –authorisations for those appointed as officers (members of the Board) of Italian companies are issued the fastest and have the least requirements, but the Italian company must have been established for at least three years.
Local Hiring: A non EU citizen can be hired directly by an Italian company only if quotas are available. Quotas can be avoided (Blue Card permit) if the worker: (i) has at least a three year University diploma; (ii) he is offered a contract for at least one year and a minimum salary of at least €25,500/year.
Exception to the quota system are applicable also to Intra Company Assignments, i.e. when a highly specialised worker is seconded from a US company to an Italian company or branch which is part of the same Company Group and for Service Agreement Assignments, i.e. secondment is made between two non-affiliated companies in compliance to a service or sale agreement.
The Elective Residence Visa is limited to individuals who have a prolific amount of money and savings in the country of origin and who intend to live in Italy without working. The applicant’s income cannot derive from current employment or any other work activities.
Are there any immigration implications relating to foreign investors setting up a company in your jurisdiction?
Mazz:Unless the investor comes from a country which does not meet the reciprocity condition with Italy, foreign investors can freely set up a business activity by:
- Establishing as a partnership (ditta individuale);
- Establishing a company;
- Establishing a secondary registered office (sede secondaria) or branch (filiale)
- Opening a representative office (ufficio di rappresentanza). All the above entities can be used for the purpose of obtaining work permits for non EU workers. In some cities (Rome, Florence) the local immigration offices do not however allow applications filed through a representative office or a newly established entity.
All types of entities are established:
- in case of branch and representative office, by filing a corporate resolution and certificates proving the good standing of the parent company;
- in case of a new company, by executing the articles of association in front of a Public Notary.
Individuals who sign the deeds in the name of a foreign company will need to submit a legalised proxy proving their powers. After execution of the deed with the Notary, the company is registered with the Companies House (Registro Imprese) and is given an identification number and a VAT number when appropriate.
A foreign individual can be appointed as representative of an Italian entity even if not in possession of a valid permit to live in Italy.
Only for the purpose of filing work permit applications for non EU workers to be hired or assigned to work with the company, the signatory of the application must be Italian or have a valid permit of stay and residency in the country. If a company does not have anyone meeting the above requirements, a special proxy with immigration powers can be granted to an Italian individual.
Can you outline any penalties or restrictions for non-compliance with immigration regulations?
Mazz:Consequences for a foreign national who has entered, or is residing, illegally in Italy
Those who enter illegally and/or stay illegally are subject to a fine of €5,000 to €10,000.
Fines are applied in the following cases:
- Entering Italy without passing through border controls, unless due to force majeure;
- Entering Italy without a passport or valid identification document, by use of a false document or by obtaining a new passport for the purposes of staying beyond the time allowable;
- Entering Italy without a visa, for those foreigners who must have a visa to enter;
- For non-visa nationals, remaining in Italy beyond the 90-day allowance for tourism/business/study purposes;
- For visa nationals, remaining in Italy after the short-term visa for tourism/business/study purposes has expired;
Foreign nationals in possession of a residence permit or equivalent document issued by another Member State, failing to comply with the short stay registration formalities within eight working days from arrival are subject to a fine of €103 to €309.
Consequences for an Italian company’s officers and managers
Assisting with the entrance of illegal immigrants
Unless the fact constitutes a more serious offence, actions aimed at procuring illegal entry of foreigners into the Italian territory or any other State for which the individual has no permission to enter, shall be punished by a term of imprisonment from one to five and a fine up to €15,000 for each individual. An exception exists if the foreigner is in need of rescue and humanitarian relief.
The above penalties are increased to five to 15 years imprisonment (the €15,000 fine per individual still applies) if in addition to the above mentioned crime, one of the following occurs:
- the fact concerns entry or illegal stay in the state's territory of five or more individuals;
- in order to procure entry or illegal stay, the individual's life or safety was endangered;
- in order to procure entry or illegal stay, the individual was subject to inhuman or degrading treatment
- the illegal act is committed by three or more individuals acting together or by using international transport services, or counterfeited/altered/illicitly obtained documents
- If the perpetrators of the crime carry weapons or explosives
What key trends do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?
Mazz:Labour market conditions have started to improve after several years of recession, but the recovery from the recent economic crisis remains very uncertain. Bank of Italy estimates that the country’s GDP should be 1 % in 2016 and 1.5% in 2017. The unemployment rate has started to decrease from the 13% peak, reached in November 2014 and it is expected to be 11% in 2016 and continue to decrease in 2017. Nevertheless, it remains above that of the Euro Area.
The Jobs Act represents an important step forward towards the reduction of long-term inequality and the elimination of segmentation. This is achieved by increasing incentives for the creation of open-ended jobs under the new contract with a gradual increase in protection, and extending the coverage of out-of-work benefits.
The Jobs Act also includes important measures to increase the resources devoted to active labour market policies, and strengthen their effectiveness. These are an essential complement to the efforts made to promote open-ended contracts and universal unemployment benefits. Effective activation policies help connect unemployed and inactive people with jobs. They focus on the motivation and employability of jobseekers while improving their job opportunities. These elements need to be managed by strong labour market institutions and policies, which are the keystone of any successful activation strategy.
At 0.41% of GDP, Italy’s spending in active policies in 2013 was well below the OECD average (0.53%) and that of most countries in Continental Europe.
Activation policies need to be strengthened in Italy and made more efficient. The planned creation of the Unique Agency for Active Policies (ANPAL), envisaged by the recently-issued Jobs-Act decree on the matter, is a significant step forward in that direction.
A key strategic element of this reform is the attribution of a central role in the coordination of regional action to the new agency.
It remains to be seen whether this re-organisation is sufficient to be effective, in particular insofar as it falls short of fully integrating active and passive policies, at least until the completion of the constitutional reform.
Source: OECD Employment Outlook 2015
Marco Mazzeschi is admitted to the Milan Bar Association (1988), to the Taipei Bar Association (2016) and as Foreign Legal Affairs Attorney in Taiwan (2016). He is also a full member of American Immigration Lawyers Association (AILA - 2001). He is listed since 2005 in the International Who's Who of business immigration lawyers as the leading practitioner in Italy. He is the author of many publications in the field of business immigration and corporate law. He is a frequent speaker to international conferences and seminars.
Marco can be contacted on +39 0577 926921 or by email at email@example.com