Ferruccio Pastore, Direttore, FIERI
Da mesi, ormai, si protrae un dibattito acceso, e spesso confuso, sul futuro della politica migratoria italiana. L”iter parlamentare del ddl n. 733 bis, colonna portante del cosiddetto pacchetto-sicurezza, si è appena concluso. Subito dopo, però, ha preso il via il confronto politico su ipotesi di regolarizzazione, che fino al giorno prima erano state escluse. Simili contraddizioni possono indubbiamente disorientare, ma non sono affatto inedite nella storia ormai più che ventennale delle politiche italiane in tema di immigrazione. Proprio in momenti come questi, una prospettiva di lungo periodo può aiutare a orientarsi nel tumulto dell”attualità.
So strict, so open: a long-term perspective on Italian immigration policies
This is a revised version of a paper commissioned by CentreForum in the framework of the research programme “Migration – Europe”s challenge”.
Between the 1960s and 1980s, Italy was simultaneously a country of (gradually shrinking) emigration (with significant return flows), one of growing non-EC immigration and a transit corridor for irregular migration aiming towards older European immigration countries. A complex and dynamic migration geography which resembles that of many countries in the EU’s Eastern and Southern neighbourhood nowadays.
Italy’s net migration rate turned steadily positive only around the end of the 1980s. Before that period, persisting outflows contributed to “hide” the growth of foreign immigration in aggregate statistics. However, already in 1981, the population census revealed a non negligible stock of 320,779 foreigners on the national soil. Since then, the overall foreign presence has more or less doubled every decade until 2001. Since then, that already sustained growth rate has turned into a real boom: with an average net increase of 278,000 new immigrants per year in the last decade (382,000 in the last five years), Italy’s foreign population is currently estimated to consist of well over 4 millions (Caritas, 2008; ISMU, 2009; Istat, 2009).
How has the Italian political system reacted to this epochal novelty? How can we assess the policy responses given during the last quarter-century to such impressive demographic and social transformation? A detailed answer would require several volumes (the best attempt so far being Einaudi, 2007). In the following few pages, we will only try to give some basic hints, with the aim of singling out the main long-term trends and some key options for the future.
1. The beginning of a contrasted modernisation process
The Italian legislator started to apprehend the new phenomenon only in the second half of the 1980s. The first two pieces of legislation of some relevance (law No. 943 of 1986 and law No. 39 of 1990) were adopted by relatively solid Centrist political majorities without any major political struggle.These two laws had an important role in the initial framing of immigration and asylum issues in the Italian legal and political debate. Neither of these two laws, however, went much beyond a declaratory function: the 1986 act, for instance, solemnly proclaimed the full equality of treatment between national and foreign workers, but without setting up any proper integration and anti-discrimination policy; the 1990 “Martelli law” (from the name of the Deputy Prime Minister who was the main proponent) lifted the “geographical reserve” which had until then de facto thwarted Italy’s formal international commitments on asylum, but it did not establish any concrete asylum system. The same could be said of most new provisions on immigration law enforcement and admission procedures: in the absence of any concrete financial and organisational effort, almost everything was doomed to remain on paper. The only exception being the immediately effective regularisation schemes launched by both laws, which jointly legalised over 300,000 immigrants thereby inaugurating a lasting Italian tradition (see Graph 1).
1986 and 1990 laws certainly marked a growing awareness of the novelty represented by immigration in Italian politics. Such awakening, however, was neither full nor irreversible. A demonstration came in 1992, when a new law on nationality (No. 91) on the one hand made it much easier for the descendants of Italian emigrants to recover Italian nationality or acquire it ex novo; on the other hand, that anachronistic piece of legislation doubled the length of residence required for non-EC citizens to naturalize and made it harder for “second generation” children to get an Italian passport (Pastore, 2004; Tintori, 2009; Zincone, 2006).
Graph 1: Legally resident non-EU foreigners (No. of valid stay permits, end of each year; not including persons under 18).
2. The age of politicization: reforms and counter-reforms
If the early Italian legislation was mainly of a declaratory nature, a shift towards a more incisive kind of “performative legislation” occurred during the 1990s, in correspondence of an ever stronger politicization and mediatization of the national debate on immigration.
In 1998 a Centre-Left government carried out a wide-ranging reform: even though it failed in delivering on two important programmatic engagements (facilitating access to nationality and granting administrative voting rights to long-term residents), law No. 40 of 1998 (known as “Turco-Napolitano” from the names of the Social Affairs and Interior Ministers of the time) brought about substantial novelties. For instance, in compliance with obligations associated with the long-delayed admission into the Schengen space, Law No. 40 made the rules on expulsion much stricter, by introducing the possibility to detain up to 30 days the undocumented immigrants awaiting repatriation. This and other restrictive changes were politically balanced by liberal innovations in the spheres of labour immigration (operationalisation of a quota system for the yearly planning of new admissions) and integration (laying of institutional and financial foundations for a national integration policy).
Law No. 40 was heavily criticised by the opposition, which threatened also an abrogative referendum.
Immediately after the electoral victory in 2001, the new Centre-Right majority started working on a counter-reform, which eventually saw the light with Law No. 189/2002. Apart from the massive regularisation scheme which came with it (705,000 applicants and almost 650,000 new permits issued, in what turned out as the largest amnesty ever in European history), the “Bossi-Fini” law (again from the names of the main ministers pushing it) marked a substantial hardening of previous procedures and a reduction of immigrant rights: the maximum length for administrative detention was doubled; the length of validity of residence permits was cut to half; admission procedures were made rigidly dependent upon a pre-existing work contract; family reunion was submitted to stricter limits, only to mention some of the most significant restrictions.
Back in power in 2006, the Centre-Left tried to reverse the changes made with a bill which was largely based on the updating and fine-tuning of approaches and solutions already experimented in the 1996-2001 legislature. But the majority supporting the Prodi II government was too weak and heterogeneous to last. In April 2008 anticipated elections, Berlusconi won an overwhelming majority and took power for the third time in 14 years. The new majority, which had campaigned hard on law and order issues, immediately initiated a new reform of the legislation which had been enacted by an analogous coalition only 6 years before. The new bill (Atto Camera No. 2180) is currently going through the final phases of the parliamentary procedure.
In spite of repeated revisions, due to perplexities of the less extreme wings of the coalition and to heavy protests of some sectors of the civil society, the output will be a unprecedentedly restrictive piece of legislation driven by two fundamental logics:
a) A logic of criminalization and further marginalization of undocumented migrants, which manifests itself, among else, in the following changes:
– Irregular entry and overstaying are reframed as criminal offences, sanctioned with a fine and immediate expulsion;
– maximum administrative detention for immigrants awaiting deportation is raised from 2 to 6 months;
– obligation to exhibit a valid stay permit for birth registration of natural children, wedding, money transfer, etc.;
– undocumented status as aggravating circumstance for offenders (already in charge, enacted with urgency decree No. 92 of 26 May 2008, converted into Law No. 125/2008);
– legitimization and public funding of citizens’ patrols (ronde) against irregular immigration and immigrant criminality
b) A logic of systematical weakening of the status of legal immigrants, by means of several measures including:
– introduction of ad hoc taxes (beside an already existing fee for administrative costs) on stay permit renewal and on acquisition of nationality;
– enactment of a points-based system for the renewal of stay permits;
– more restrictive housing requirements for family reunion;
– language test to access permanent status for long-term immigrants;
– tougher rules on nationality by marriage;
– dramatic cuts on funds available for integration policies at both central and local level.
3. Towards a results-based assessment: preliminary hints
Assessing the overall effectiveness of whatever advanced country’s migration policy is a dauntingly complex task from both a practical and conceptual point of view. In the Italian case, as compared with other EU Member States, such task is made even more complex by the appalling lack of official assessment initiatives (some more or less periodical reports of the national Accounting Court are an isolated exception; for the most recent see Corte dei Conti 2008). The national idiosyncrasy against ex-post evaluation affects also policy research, which so far has hardly tried to carry out systematic assessments of the impact of national policies on immigration. This lacuna can obviously not be filled in such a brief document. Here, we will limit ourselves to single out a few indicators of particular significance.
A) Landings on Italian shores as a (problematic) indicator of effectiveness of border controls. Italy has around 7,500 km of maritime borders. The human and financial resources invested in maritime border controls have grown exponentially during the last couple of decades (although here too officials figures are not available). Over the same period, the number of landings  has evolved significantly, together with radical changes in the evolution of human smuggling routes to the Italian peninsula (Monzini-Pastore-Sciortino, 2006; Monzini, 2007). The number of landings is certainly a relevant indicator, although not an unambiguous one: an increase can highlight either an expansion in clandestine flows, or an increase in the effectiveness of border controls, or both. In the case of the chronological series shown in Table 1, certain peaks are clearly associated with an intensification of migratory pressure due to specific crises in Italy’s neighbourhood (this is most notably the case with 1999 peak in Apulia, due to the Kosovo war). Other peaks, however, are more likely to highlight specific failures in the external dimension of Italy’s migration control policy: this is the case with the recent boom in landings in Sicily’s Pelagie Islands, essentially due to the major difficulties encountered so far in implementing cooperation agreements with Libyan authorities (Pastore-Trinchieri, 2008) .
Table 1: Undocumented immigrants (including asylum-seekers) landed on Italian shores
B) Effectiveness rate of the national expulsion system.
A significant share of the resources devoted to migration law enforcement is invested in the complex of apparatuses and activities  aimed at expelling the undocumented immigrants who are apprehended on the national territory. In order for the system to be effective in deterring new irregular immigration, a large enough share of the expulsions which are decreed every year needs to be actually implemented. The ratio of effective implementation of expulsion decisions is quite obviously a critical indicator of this particular law enforcement mechanism.
Starting with 1999, the first year of enforcement of the stricter rules introduced by law No. 40/1990, the effectiveness rate of the Italian expulsion system has constantly grown until the peak-year 2002 (over 420,000 removals, among the highest scores in the EU). Somehow surprisingly, the years in power of the second Centre-Right government lead by Silvio Berlusconi marked a steep decrease of the effectiveness rate, in spite of the even stricter rules enforced with Law No. 189/2002.
Table 2: Effectiveness rate of the Italian law enforcement system in actually expelling undocumented foreigners apprehended on the national territory (1999-2006; thousands) .
Among the possible explanations of such a striking political paradox are the following:
i) the vast 2002 regularisation scheme drained a large part of the undocumented foreign population. This certainly explains the reduction in apprehensions in 2003-2004, but does not necessarily help in explaining the fall in implementation rates;
ii) judiciary factors certainly played a role, with particular regard to an important decision by the Italian Constitutional Court (Sentence 222/2004) which significantly reinforced legal guarantees for foreigners awaiting removal;
iii) The single most important explanatory factor, however, is probably a crisis in the effectiveness of bilateral cooperation agreements with some key sending and transit countries. This has expressed itself in a strong reduction in the number of readmissions (Ministero dell’Interno 2007: 352).
C) Ex-post admission as indicator of (in)effectiveness of the national admission system.
It is well known that, during the last two decades, Southern European states’ migration policies have had one key feature in common in their repeated use of large-scale regularisation schemes for undocumented immigrants (the most recent comparative study was commissioned by the European Commission to ICMPD, 2009).
Italy has been a champion in the use of such controversial policy tool. From 1982 till now, it has brought to surface and granted a stay permit this way to a total of around 1,435,000 foreigners, corresponding to almost 70% of the stock of valid stay permits at the beginning of 2008 . If one considers only the 1996-2008 period, the 1,217,000 regularisations granted by Italian authorities represented more than one third of the 3,244,061 granted altogether in the EU-27 (ICMPD, 2009, p. 32).
To this one should add that the Italian practice in the field of immigrant admission de facto allows also other forms of ex-post admission which are practically equivalent to regularisations. Every year, according to the admission rules adopted in 1998, a maximum number of new admissions for working purposes (the term “quota” is frequently used, although “ceiling” would be more appropriate) is set with a decree of the Head of the Government. If in the course of the year, labour market needs appear to exceed the established limit, the government is allowed to issue a supplementary decree to raise the ceiling. In principle, all new immigrants should be recruited nominally while still abroad. In practice, it is an unofficially acknowledged reality that the demand-offer encounter often takes place with the immigrant already irregularly in Italy. The recruitment application is done by the would-be employer pretending that the worker is still abroad; if the application is successful, the worker is then bound to return in the country of origin to pick up the entry visa and then re-enter, legally this time.
Such absurd and costly mechanism, which is a perverse consequence of too rigid admission rules, has worked as a sort of “hidden regularisation”, and increasingly so since 2006 .
4. Towards a rights-based assessment: the pendulum of migrant rights
In the previous paragraph we have sketched out the main features of a chronically inefficient system where the promises of rigour made to the public opinion are frequently baffled and the demand of functionality issuing from the economy seldom fulfilled. The consequence is a deep and widespread collective perception of a phenomenon out of public control . In order to gain consensus on the backdrop of such perception, governments have periodically been lured into consecutive waves of tightening up of the rules defining the status of unauthorised immigrants.
The long-term trend towards an increasingly restrictive attitude towards irregularity (with the exception of the bipartisan parentheses represented by extraordinary regularisations, always presented as “the last of the kind”) has historically been more acute in periods when the Centre-Right was in power. But it is remarkable that, often in spite and against the liberalising intentions expressed in electoral programmes, even Centre-Left executives have generally proved unwilling or unable to reverse restrictive decisions and, for instance, to reduce penalty increases enacted by previous majorities (this was most notably the case in 2006-2008). As a result, as shown for example by the evolution of indicators 3 and 4 in Fig. 1 (below), the last two decades have been marked by a rather constant raising of the levels of law enforcement against irregular immigration .
On several occasions, this escalation in immigration law enforcement has attracted criticisms by international and European human rights bodies (lately, see Council of Europe, 2009).
Deeper discontinuities between Centre-Left and Centre-Right emerge in the field of the treatment of regular immigrants. Centre-Left governments have consistently (although not always effectively, due to intrinsic political weakness, as with Prodi II) worked for the expansion of the sphere of rights and entitlements granted to legally resident foreigners. On the contrary (as shown by indicators 1 and 2 in Fig. 1), both in 2002 and in 2009 the Centre-Right has aimed at multiplying controls, thereby weakening the legal position of regular immigrants.
Fig. 1: Four indicators of expansion and contraction of migrant rights in recent Italian legislation (1986-2009).
5. A country paralysed on a national priority
Over the last decade, and even more markedly during the last five years, Italy has experienced an unprecedented immigration boom. National policies have proven unable to steer such transformation. In spite and beyond the ongoing recession, Italian society and economy will continue to express sustained immigration needs, even though it is possible that the extraordinary immigration levels of the last years may not reached again in the near future . According to forecasts issued by ISTAT (the national statistical institute), foreign population will rise to a level between 7 and 9 millions by 2031 (taking the medium forecast level, this would amount to 13.2% of the forecasted total population) and between 9-12 millions by 2051 (equivalent to 17.4% of total pop.). Furthermore, these are conservative estimates: as a matter of fact, if forecasts were based on the simple projection of the average net migration of the last decade, the immigrant stock by the middle of the century would amount to 14 millions (Einaudi, 2009, p. 25).
The Italian society and political system have so far responded to the recent immigration boom and to expected further increases with a growing unease and polarization. In parallel with a more general harshening of the political life and of the relations between the two main political fronts. The lack of a minimum bipartisan consensus on the strategic guidelines of the national migration policy limits the political capital available for any reform. Centre-left attempts to reform the system in order to make it more inclusive have largely failed due to internal political disagreements, administrative insufficiencies and lack of resources. Centre-Right experiments aimed at making the system more rigorous failed for analogous reasons, plus a fundamental incoherence between such restrictive recipes and the structural needs.
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 We conventionally include under this term both persons apprehended upon disembarkment and persons rescued at sea.
 As from 7 May 2009, the Italian government has radically modified its modus operandi in operations against unauthorised migration across the Sicily Channel. The unflagged vessels which are intercepted at high sea and their human cargo are not brought on Italian soil for identification any more. Migrants are now brought back to Libya which has started to readmit them. These operations are carried out without any proper screening based upon international protection obligations and the prohibition of refoulement. Should such practice continue in spite of the serious allegations of it being in breech of international, European and Italian law coming from different sources, the effectiveness of Italian maritime border controls could be substantially upgraded, although at a high price.
 Including as a minimum: i) targeted patrolling of the territory, ii) administrative detention prior to removal, iii) transport activities associated with the execution of expulsion decisions.
 Due to a lack of official data on the number of apprehended immigrants, it is not possible to follow the evolution of the effectiveness rate in 2007 and 2008. However, the figures on actually implemented expulsions in those two years (respectively 7,264, 8,580, and January 2009) suggest a continuation of the declining trend.
 Given the constant and high turnover, this does obviously not mean that 70% of all legal immigrants were granted a stay permit through regularisation, but it is nevertheless a revealing proportion.
 The maximum was reached in 2006, when the Centre-Left Prodi II government, under the pressure of its most left-wing components, admitted around 520,000 foreign workers (most of whom were probably already staying irregularly in the country) by issuing four distinct “planning decrees” (Corte dei Conti, 2008).
 Italy stands out against most EU countries also as far as the perception of discrimination, racism and victimisation by immigrant and minority groups is concerned: this is what emerges from the first results of EU-MIDIS (European Union Minorities and Discrimination Survey), the first EU-wide survey of this kind, recently carried out by the Vienna-based EU Agency for Fundamental Rights.
 The most significant exception to this general trend is represented by the liberal rules contained in law No. 40 of 1998 concerning the access of undocumented immigrants to the health system (for all “essential treatments”, even if not urgent) and of children of undocumented parents to compulsory education. In 2009, the Centre-Right has made serious attempts at reversing such landmark decisions, but the strong protests by the civil society (including health and school professionals) have finally pushed the parliamentary majority to water down the initial version of the restrictive counter-reform.
 In this perspective, it is quite telling that, even in the midst of a dramatic economic and occupational crisis, a government which is probably the most anti-immigrant ever in Italian history, has authorised in the brief span of three months (President of the Council of Minister’s decrees of 3 December 2008 and 20 March 2009) the admission of 230,000 new immigrants in the coming months. 80,000 of these migrants will be admitted for seasonal work, the rest are mainly domestic and careworkers already staying irregularly in the country.