Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Italy (Ratification: 1981)

Part I. Migration in abusive conditions. Articles 2–7 of the Convention. Multilateral and bilateral cooperation. In its previous observation, the Committee noted the complex and global nature of the phenomenon of irregular migration as well as the efforts deployed by the Government to find solutions to address migration in abusive conditions, and requested it to continue to take all necessary measures to promote national (through cooperation with workers’ and employers’ organizations), bilateral, multilateral and regional cooperation to address the issue of irregular migration with full respect to migrant workers’ human rights and to prosecute and punish those organizing and assisting in clandestine movements of migrants. The Committee also asked the Government to provide information on any developments in this regard as well as on all the measures adopted at national level to ensure respect, in law and in practice, of the human rights of all migrant workers. The Committee notes the information provided by the Government in its report about the Italian Agency for Development Cooperation (AICS) – established by Law No. 125 of 2014 – which is in charge of actions focused on migration and development, including research aimed at identifying the most suitable approaches to ensure safe, orderly and regular migration; and programmes and projects directed at ensuring a safe, orderly and regular migration. In this framework, in 2017, the AICS published a report on “Sustainable migration: Interventions in the country of origin” laying down a number of policy interventions to combat migration in abusive conditions, ranging from active labour policies, education, professional training and investments in the countries of origin, to “preparatory” programmes for migrants workers and policies for circular migration, among others. The Committee further notes the Government’s indication that the work of AICS also involves organizations and associations of migrants in Italy. In addition, the Government informs that it has contributed to the design of the European Union’s (EU) External Investment Plan (EIP) that provides the framework for investments in Africa and in the neighbouring countries of the EU with a view to promoting sustainable interventions to tackle some of the root causes of migration. Concerning international cooperation, the Committee also notes that the Government provides detailed information on the range of agreements signed, as of April 2017, to address the issue of irregular migration and regulate repatriation, including bilateral agreements with European and non-European countries, such as Algeria, Egypt and Nigeria, among others, and memoranda of understanding with several countries, encompassing, for example, Gambia, Ghana, Malta, Niger, Senegal, and Sudan. The Committee further notes from the website of the Government that in 2017 a Memorandum of Understanding was reached with the Government of Libya on “cooperation in the fields of development, the fight against illegal immigration, human trafficking and smuggling and on reinforcing the security of borders between the State of Libya and the Italian Republic”, which has been criticized by various actors for its impact on the human rights of migrants, including more recently by the Commissioner for Human Rights of the Council of Europe (CoE) who asked for the suspension of the cooperation activities in place with the Libyan Coast Guard that impact, directly or indirectly, on the return of persons intercepted at sea to Libya until clear guarantees of human rights compliance are in place (statement of 30 January 2020) and asked all CoE Member States to urgently review their cooperation activities (Recommendation on bridging the protection gap for refugees and migrants in the Mediterranean, June 2019).

As regards the measures adopted at national level to ensure respect of the human rights of all migrant workers, the Committee notes the information provided by the Government on a number of legislative measures adopted, including: the increase by 20 per cent of the sanctions against the employer of a migrant worker who lacks the permit of residence or whose permit is expired, introduced by Legislative Decree No. 151 of 2015 amending section 22 of Legislative Decree No. 286 of 1998 (Consolidated Immigration Law); and the measures directed at combating labour exploitation in agriculture, adopted with Law No. 199 of 2016. In this respect, the Committee notes, in particular, the protocols signed between various ministries and public authorities to tackle the illegal intermediation of labour and the exploitation of agricultural workers “caporalato” in collaboration with trade unions, civil society organizations and the organizations of agricultural businesses. On the other hand, the Committee notes that the Government provides information about the difficulties faced in combating the trafficking of migrants, especially when this happens via the sea, due to the strategies adopted by the responsible criminal organizations to elude the jurisdiction of destination countries. The Committee also notes the Government’s indication that the difficulties have been exacerbated further in recent times because smugglers now select, from the trafficked persons, young persons who have fishing experience or can speak English and leave to them the conduct of the boats beyond the territorial waters of the country of origin.

Acknowledging the efforts of the Government and emphasizing the continuing need for multilateral cooperation and cohesive action, particularly at European level, to address, in a comprehensive and effective manner, migration in abusive conditions, the Committee requests the Government to continue to take measures to promote cooperation at various levels to address irregular migration with full respect of migrant workers’ human rights. The Committee also requests the Government to provide information in this respect, including on any progress made in overcoming the difficulties currently faced in counteracting the trafficking of migrants and prosecuting the authors. The Committee also asks the Government to provide information on the actions taken by the AICS to ensure safe, orderly and regular migration and to continue to supply information on the measures adopted at national level to ensure respect, in law and in practice, of the human rights of all migrant workers. It further encourages the Government to review its Memorandum of Understanding of 2017 with Libya with a view to ensuring respect for the human rights of all migrant workers.

Articles 1 and 9. Minimum standards of protection. Access to justice. The Committee recalls that in its previous observation it underlined that access to justice, including adequate access to assistance and advice, is a basic human right which must be guaranteed to all migrant workers in law and in practice and highlighted the importance of providing for effective and speedy legal procedures. In this regard, the Committee requested the Government : (1) to indicate the specific scope of the term “particularly exploitative working conditions” provided for in article 1(1)(b) of Legislative Decree No. 109/2012 – which contemplates the issuance of a six-month residence permit on humanitarian grounds for those third country nationals who in cases of “particularly exploitative working conditions”, lodge complaints or cooperate in criminal proceedings against employers, at the initiative or with the favourable opinion of the courts; (2) to provide information on how it is ensured in practice that all migrant workers in an irregular situation can seek redress from the courts with respect to violation of their rights arising out of past employment including non-payment or under-payment of wages, social security and other benefits; (3) to provide data disaggregated by sex and origin on the number of migrant workers in an irregular situation that have filed administrative or judicial claims with respect to violations of their basic human rights or rights arising out of past employment; (4) to provide information on the manner in which adequate legal defence for migrant workers in an irregular situation is ensured, including in detention centres; and (5) to continue to provide information on inspections carried out in the construction and agriculture as well as other sectors to detect illegal employment of migrants and the results achieved.

Concerning the specific scope of the term “particularly exploitative working conditions” provided for in article 1(1)(b) of Legislative Decree No. 109/2012, the Committee notes the Government’s indication that Law No. 132 of 2018 abrogated the temporary residence permit on humanitarian grounds, which was provided for by Legislative Decree No. 109/2012. The Government however informs that section 22 of the Consolidated Immigration Law, as amended by Law No. 132 of 2018, still stipulates that the foreign worker who lodges a complaint against his or her employer alleging “particularly exploitative working conditions” and cooperates in the related criminal proceeding, can be issued a special residence permit of the duration of six months, subject to the favourable opinion of the Public Prosecutor. Pursuant to section 22(12)(6) of the Consolidated Immigration Law, such special permit allows the possibility of taking up a job and can be converted, after its expiry, into a residence permit allowing wage-employment or self-employment. Concerning the notion of “particularly exploitative working conditions”, the Government refers to article 603bis of the Criminal Code, as amended by Law No. 199 of 2016, which defines the crime of illegal intermediation of labour and labour exploitation. The Committee notes that, according to this article, the existence of labour exploitation is presumed in presence of one of more of the following conditions: (1) reiterated payment of remunerations that do not correspond with what is established in the national or territorial collective agreements signed by the most representative workers’ organizations at national level, or that is not proportionate to the quantity and quality of the work performed; (2) reiterated violation of the norms regulating working time, rest periods and annual holidays; (3) breach of the norms governing occupational safety and health; and (4) subjecting the worker to working conditions, surveillance methods and housing conditions that are degrading. As regards migrant workers’ access to justice in practice, the Committee notes the Government’s indication that migrant workers who allege the non-payment or under-payment of wages, social security and other benefits are entitled to seek redress from the courts under article 2126 of the Civil Code, which provides for the payment of remuneration for the period in which the work has been performed as well as the payment of social security contributions on the part of the employer. The Government indicates that the complaint can be filed either by the concerned migrant worker or by a trade union or other association and explains that migrant workers in irregular situation can also denounce the situation before labour inspectors and the local offices of the national social security service. Furthermore, the Government indicates that on 10 February 2017 the Ministry of Interior and the Ministry of Labour and Social Policies adopted a joint decree defining the terms and modalities to ensure that illegally employed migrant workers have access to information concerning their rights and how to claim them, before the execution of any expulsion order, in accordance with European Directive 2009/52/CE. Based on this decree, an “information note” has been developed, containing information about the rights to remuneration and social security benefits as well as on the different avenues to claim these rights. The Committee notes the Government’s indication that this note is distributed to the workers by employers’ and workers’ organizations and by labour inspectors. The Committee also notes from the “information note” annexed to the Government’s report that such note is to be signed by the worker, to whom one copy of the document is given, while another copy is sent to the Immigration Office in charge of repatriation procedures. The Committee, however, notes that there is no indication as to the languages in which this note is available. It also notes that the information note does not provide information on the possibility that migrant workers have of obtaining a special resident permit in case of “particularly exploitative working conditions” under article 22 of the Consolidated Immigration Law. As far as the results of labour inspections are concerned, the Committee notes the information provided by the Government based on the data gathered by the National Labour Inspectorate in 2016. The Committee notes that the labour inspectors found 1,357 non-EU migrant workers in irregular situations, particularly in the industry and manufacturing sectors followed by the tertiary sector. The Committee further notes from the 2018 report of the Labour Inspectorate, available on its website, the specific information concerning the detection of illegal intermediation of labour and labour exploitation of workers, including migrant workers. In particular, the Committee notes that, in 2018, 7,160 inspections were undertaken in the agriculture sector, which found irregular situations in more than 50 per cent of cases. Of the 5,114 workers in irregular situations identified, 65.5 per cent did not have a contract and of these 263 were non-EU migrant workers without a residence permit. The Committee notes that, in total, the labour inspectorate identified 478 migrant workers as victims of exploitation, of whom 350 were in the agriculture sector, and 157 migrant workers without residence permits were equally victims of exploitation (130 in agriculture). Finally, the Committee notes that, in its concluding observations of 2017, the United Nations Human Rights Committee expressed concern at the absence of clear and effective procedures allowing migrant workers to complain about abusive working conditions, including in relation to outstanding pay (CCPR/C/ITA/CO/6, 1 May 2017, paragraph 28(d)). In light of all the above, the Committee requests the Government : (i) to indicate how it is ensured in practice that all migrant workers in irregular situations have access to complete information about their labour rights and the means of redress available, with appropriate safeguards for confidentiality, including the possibility of obtaining a “special residence permit”, in a language understandable to them, as well as to legal assistance, also in detention centres, including any measures adopted in this respect in collaboration with the social partners; (ii) to provide data disaggregated by sex and origin on the number of migrant workers in an irregular situation that have filed administrative or judicial claims with respect to violations of their basic human rights or rights arising out of past employment; (iii) to provide information on the number of complaints lodged by migrant workers alleging “particularly exploitative working conditions” (such as for example non-payment or under-payment of wages, social security and other benefits) brought to the attention of the labour inspectors and the results thereof (violations found, penalties imposed, repayment amounts ordered); and (iv) to provide information on the number of special permits granted under section 22(12)(6) of the Consolidated Immigration Law.

The Committee is raising other matters in a request addressed directly to the Government.