By: Sarah Spencer, Open Society Fellow, and Nicola Delvino (Nicola is a lawyer and worked as a researcher and co-authored the COMPAS report “Irregular Migrants in Italy: Law and Policy on Entitlements to Services”)
This month sees the first anniversary of Italy’s Mare Nostrum operation, launched to reinforce rescue capacity in the Mediterranean following the drowning of 368 migrants off the coast of Lampedusa in October last year. In the intervening months many lives have still been lost but many saved. A consequence for Italy has been that thousands more people from the Middle East and parts of Africa are reaching its shores in need of help.
For our study on irregular migrants in Europe this crisis makes Italy’s response to the needs of irregular migrants of particular interest and is the subject of a report published this week. While overall Italy only had an estimated 294,000 residents with irregular immigration status in 2013, some 0.5% of the population, [ref: Fondazione ISMU, Diciannovesimo rapporto sulle Migrazioni 2013 (2014)] there are cities and neighbourhoods where they are disproportionately to be found. The relevance to Italy’s European neighbours of the lessons it has learnt in handling this challenge is heightened by its current presidency of the EU in which migration has, understandably, been a priority.
We might have expected that anxiety to deter arrivals could have led Italy to turn to the kind of measures the UK government recently introduced in the 2014 Immigration Act to create a ‘hostile environment’ for irregular migrants. All the more striking that in April the Italian Parliament decided to reverse a 2009 decision that had made irregular entry and stay a criminal offence. MPs argued that criminalisation had quite evidently failed to deter new arrivals, was contrary to Italy’s spirit of ‘civilisation and respect for diversity’ and counterproductive in its impact on the criminal justice system (see p. 5 the new report “Irregular Migrants in Italy: Law and Policy on Entitlements to Services”)
Beyond law enforcement
The challenge for the authorities that is presented by people who lack regular migration status goes beyond any concerns of law enforcement. While many live without need of the state’s assistance, others find there comes a time when they need essential services such as shelter or health care, protection as victims of crime or, for their children, education.
Like its EU counterparts, when determining its response to those needs Italy first has to consider its obligations to protect the fundamental human rights of the individuals concerned under European and domestic law. Italy’s highest courts, the Constitutional Court and Court of Cassation, have at times reminded reluctant governments of that obligation.
Government authorities, however, have a further pressing consideration they find they must take into account: the implications of excluding this section of the community for the welfare of other residents. Where their exclusion can impact on public health, tackling street sleeping, crime prevention, community cohesion, accurate data collection and a range of other policy goals including the management of irregular migration itself – good governance can point to a level of inclusion of irregular migrants within services rather than the reverse. The evidence from Italy, suggests that those pragmatic concerns can be most keenly felt at regional and local level.
Balance between enforcement and inclusion
Experiencing (or in some cases anticipating) the consequences of exclusion has in recent years led Italy to pull back from some exclusionary measures: from a legal reform in 2009 that would have required doctors to pass on to the police the details of patients with irregular status, for instance, and from a requirement that similarly prevented parents acquiring a birth certificate for their child because the police would be informed.
In other instances entitlements have been extended: where, in effect, the authorities have deemed the benefits of so doing outweigh enforcement or fiscal considerations. Here we are witnessing not the well documented informal inclusion of irregular migrants, where individual service providers exercise discretion to provide a service in breach of the rules, but formal inclusion as a matter of law or policy [ref: Chauvin, S. and Garcés-Mascareñas, B (2012), ‘Beyond Informal Citizenship: The New Moral Economy of Migrant Illegality’, International Political Sociology 6, 241-259.].
Our report shows that Italy is among a minority of EU states that provide irregular migrants not only with emergency health care but access to primary and secondary care if it is urgent or essential, issuing an anonymous health card to facilitate access. Children are entitled to the same level of care as Italian children and their mothers to maternity care. Irregular immigration status is no bar to screening and treatment for HIV AIDS and infectious diseases like tuberculosis (though access to screening for breast and cervical cancer, for instance, is not allowed.
Italy is also one of a minority of EU states where a right for children to attend school is explicit in law, not only implicit in a right for ‘all children’ to education. There are special arrangements to enable victims of domestic violence and some other violent crimes to get police support and a special residence permit protecting them from deportation; and provisions protecting those with irregular status from landlords who, taking advantage of their fear of detection, charge exorbitant rents.
This is not to suggest that irregular migrants find it easy to access services. Legal entitlements do not extend to all basic needs – shelter, for instance, is one particular challenge. Some entitlements are set out only in Ministerial circulars, not law; and entitlements on paper can be a long way from securing access in practice. Nevertheless, the entitlements that have been agreed and the reasons why are instructive for other States.
Italy’s experience is also notable in the extent to which regional and municipal authorities have been in the forefront of extending entitlements, in some cases challenged by the national government and the outcome only resolved in court. It was municipal authorities that won the argument that the right to education should extend to pre-school provision; and regional authorities that drove a recent policy shift to allowing sick children access to a paediatrician. Some regional authorities go further within their own patch, granting emergency welfare payments in extremis and access to a GP (an omission in the national law).
Our wider COMPAS study, funded by the Open Society Fellowship Programme, has found many regional and municipal authorities in other parts of Europe have equally felt it necessary to press for inclusion into particular services because of the consequences of exclusion on the ground
Dilemmas need debate
None of this is easy for any tier of government given the political sensitivity of the issue. Moreover, if it is necessary to provide a level of access to services, where should they draw the line? Where, as the US legal scholar Linda Bosniak puts it, does the right of a state to restrict migrants’ rights as part of border control come to an end, and the right to equality with others living in the territory begin? [ref: Bosniak, L. (2006). The Citizen and the Alien: the dilemmas of contemporary membership, Princeton and Oxford: Princeton University Press],
Despite those conundrums, it is rare for national, regional or city authorities to have a forum in which to discuss their approaches or, for instance, the implications of policy evolving at EU level. Given Italy’s experience on these issues, not least its reflections on the implications of exclusionary measures, it could consider using its presidency of the EU to provide space for this discussion, alongside its focus on border management and rescues at sea.