(Milan) – An Italian program to provide undocumented migrants with a pathway to residency adopted amid the Covid-19 pandemic did not live up to its promise, Human Rights Watch said today.
It is too early to know how many people will ultimately benefit from it. But flaws in the program’s design and implementation resulted in a missed opportunity to address myriad vulnerabilities of undocumented migrants, including widespread exploitation in Italy’s agricultural sector.
“Italy was rightly praised for providing undocumented migrants a pathway to residency amid the pandemic,” said Judith Sunderland, associate Europe and Central Asia division director at Human Rights Watch. “But the tragic truth is that the effort was designed and rolled out in a way that excluded hundreds of thousands of people and didn’t even reach most of the farmworkers it was supposed to benefit.”
The program was adopted in May 2020 to “guarantee adequate protection of individual and collective health” and “facilitate the emergence of irregular employment relationships” – to bring informal and undocumented work out of the shadows. In practice, the measure responded to a strategic economic interest in ensuring that essential sectors had enough workers rather than focusing on a rights-based approach. Overall, 220,000 people applied under the program, just under a third of the estimated 690,000 undocumented migrants in Italy.
The program created two pathways for undocumented migrants to acquire a temporary residency permit. An employer sponsorship option limited to the agricultural sector, including livestock and fisheries, and the home care sectors, including care for people in their home and domestic work. It was available to people already employed irregularly – or with someone willing to hire them in these sectors – and who could prove they were in Italy before March 8. The other was a jobseeker permit available to people who became undocumented on or after October 31, 2019 and could prove that they were previously employed in agriculture or home care.
Through interviews with undocumented migrants in Foggia, Naples, and Rome, as well as lawyers, aid organizations, and labor organizers, Human Rights Watch identified key failings of the regularization program. First and foremost, the narrow scope of the program denied access to hundreds of thousands of people. Undocumented workers in construction, hospitality, and logistics, for example, were unable to apply.
It also arguably created an opportunity for fraud and further exploitation of vulnerable migrants, with reports of fictitious labor contracts being sold for up to €7,000 (US$ 8,515).
“Being a person outside your own country and undocumented is like being an animal alone in the forest and when the lion sees you, he takes you and eats you,” a 35-year-old undocumented man from Ivory Coast told Human Rights Watch.
Fewer than 13,000 people applied for the innovative jobseeker permit due to the seemingly arbitrary cut-off date and other restrictive requirements. Asylum seekers, many of whom face the prospect of becoming undocumented if their claims are turned down, given Italy’s high rejection rate, were barred from applying under this pathway.
Confusion about whether and how asylum seekers had access to the regularization program was just one of many issues that required clarification up to and even after the application deadline. While many of the ministerial circulars and informational bulletins introduced improvements, the lack of clarity from the beginning may have limited the number of people who applied.
Eligible workers in the agricultural sector faced significant obstacles. Only 15 percent of applications under the employer sponsorship pathway came from this sector, a reflection of the limits of making access dependent on the will of employers.
Agricultural workers often do not know their employers due to the illegal caporalato system of intermediaries. Caporali, or gangmasters, reportedly were asking for thousands of euros to facilitate contracts with employers. A few workers told Human Rights Watch that their employers also asked for exorbitant amounts of money in exchange for sponsorship, while all the workers who successfully applied said they had to pay the €500 ($608) application fee themselves.
As they process applications, the Italian authorities should ensure that clarifications included in implementing circulars that benefit workers are fully respected. Workers whose employers withdraw from the process or who are the victim of a scam should not be penalized, and their applications should be processed.
The government should conduct an independent, thorough, and transparent evaluation of the 2020 program, including input from civil society organizations, with a focus on its impact on the human rights of undocumented workers and their access to the regularization program. Future regularization programs should not be limited to particular sectors of the labor market, give greater agency to the individual rather than depend on employer sponsorship, and include safeguards against fraud. The authorities should ensure legal certainty and clarity in regularization instruments before they are put in operation as well as timely information campaigns.
Italy should affirm its commitment to respecting the rights of all migrants by ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and signing the Global Compact for Safe, Orderly and Regular Migration.
The Covid-19 pandemic gave new urgency to calls for regularization programs, as a way both to minimize vulnerability to rights violations and to protect public health. Despite evidence over the years that regularization programs in Europe have proven to be an effective policy tool with positive long-term benefits – though no substitute for holistic migration and asylum policies that provide safe and legal channels – they remain controversial in the European Union.
“Italy could provide leadership within the EU if it learns the lessons from this regularization,” Sunderland said. “When done right, regularization programs can address situations of vulnerability and exploitation, and help lay the foundation for more comprehensive, forward-looking migration policies.”
For more information about the program and the findings, please see below.
From August through October 2020, Human Rights Watch interviewed people remotely and in-person in Milan, Rome, and Foggia, including 18 male migrant workers in the agricultural and home care sectors; 19 lawyers, trade unionists, and representatives of associations providing assistance to undocumented migrants; and an agricultural sector employer. Human Rights Watch also met online with Labor and Interior Ministry officials and sent letters of inquiry to three agriculture business associations – Coldiretti Nazionale, ConfAgricoltura, and Cia-Agricoltori Italiani. Coldiretti Nazionale sent a written reply on November 12. The others have not replied. All names of workers have been changed to protect their privacy. The research focused on the agricultural sector because of the low number of applications.
Legal and Policy Framework
Although under international human rights law undocumented migrants have the same rights as others, not only are some of those rights subject to restriction but in practice, they remain vulnerable to discrimination, exploitation, and abuse. In the absence of holistic migration policies that provide for legal migration channels and minimize the number of people who become undocumented, regularization programs represent an effective policy tool to address the insecurity and vulnerability affecting people without legal status. The Global Migration Group, an inter-agency group of the United Nations, has called regularization “a key means of stopping exploitation of migrants in irregular situations.”
The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, a core human rights treaty, requires states parties to take appropriate measures to ensure that situations of irregular stay “do not persist,” and foresees the possibility of regularization.
The Global Compact for Safe, Orderly and Regular Migration, a non-binding statement of principles Italy refused to sign when adopted in 2018, encourages states to “develop accessible and expedient procedures that facilitate transitions from one status to another … as well as to facilitate access for migrants in an irregular status to an individual assessment that may lead to regular status … with clear and transparent criteria … as an option to reduce vulnerabilities.” An explicit call for “regularization options” in an initial draft of the Compact was deleted.
Regularization programs are not infrequent in the European Union. PICUM, a network of organizations advocating on behalf of undocumented migrants, found that 24 of 27 member states had some form of regularization between 1996 and 2018. A study published in 2009 by the International Centre for Migration Policy Development of regularization practices in all EU member states concluded that these initiatives had an overall positive impact, with only limited evidence they might create a “pull effect,” and could be understood as responding to broad objectives of EU migration policy.
Calls to regularize undocumented migrants intensified amid the Covid-19 pandemic. In April, the UN special rapporteurs on the rights of migrants and on trafficking in persons urged states to “take steps towards the regularization of undocumented migrants whenever necessary, in view of facilitating their access to health services during the fight against the pandemic.” In June, the UN secretary-general issued guidelines on Covid-19 and people on the move, calling on governments around the world to explore “various models of regularization pathways” in the spirit of an inclusive public health approach and in recognition of the “important contribution made by people on the move to our societies during this crisis.”
Undocumented Migrants: Harsh Living, Working Conditions
An estimated 690,000 undocumented migrants live in Italy. The abolition in 2018 of the residency permit for humanitarian reasons (permesso umanitario) increased the ranks of the undocumented. ISPI, a leading Italian think tank, estimates that the number of undocumented migrants in Italy increased by over 37,400 people by July 2020 as a result of eliminating that permit.
Undocumented migrants in Italy are particularly vulnerable to violations of their fundamental rights. They face exploitation at work, obstacles to health care, and difficulties finding affordable and decent housing, among other problems. They are unlikely to report labor exploitation due to fear of arrest, detention, and deportation. In 2019, the authorities issued only 29 special residency permits under Italian law for undocumented workers who reported exploitative practices and cooperated with criminal proceedings.
Undocumented and informal work is prevalent in the agricultural sector. The Italian Ministry of Agriculture estimates that 150,000 undocumented migrants are working as day laborers. In a normal year, hundreds of thousands of workers, the majority from Eastern Europe, come to Italy on formal, seasonal contracts. Border closures amid the pandemic made this circular labor migration impossible and became one of the key arguments in favor of the regularization program.
Farm work has low pay, long hours, and difficult working conditions. People interviewed described working up to 10 hours a day for as little as €3 ($3.65) per hour. Following her October 2018 visit, the United Nations special rapporteur on contemporary forms of slavery concluded that many agricultural workers were subjected to “labour exploitation resulting in slavery,” due to hazardous work, coercion, and underpayment.
The terrible living conditions of seasonal agricultural workers in Italy have been amply documented. While some informal settlements are seasonal in nature, some like the settlement of Borgo Mezzanone, known as La Pista, near Foggia, in Apulia, have become permanent ghettos without formal access to electricity and running water. Burak, a 33-year-old man from Sierra Leone, lived in the settlement for three months until he found what he felt was a much better situation living in a carwash. “I have light and water now at least,” he said. “Without papers, you cannot rent a house here. … No one wants to stay [in the settlement] but it is better than the streets.”
Concern about inadequate, unsanitary housing and obstacles to health care amid the public health emergency caused by Covid-19 was one of the arguments in favor of the regularization program. By law, undocumented migrants in Italy can obtain a temporary health card that entitles them to care analogous to that available to other residents with legal permits and citizens. But Italian organizations providing services to migrants have documented logistical and bureaucratic obstacles people face in obtaining the temporary health card and finding healthcare services, including lack of information, inability to register due to the lack of a formal address, linguistic barriers, and mistrust in public authorities.
Most of the workers interviewed said they could not go to a doctor or get regular health care. “I can’t go to the hospital without documents,” Burak said. “Right now, I go to the pharmacy if I am sick.”
Emmanuel, 35, from Ivory Coast, who has lived in Italy for four years, said:
Being a person outside your own country and undocumented is like being an animal alone in the forest and when the lion sees you, he takes you and eats you …. The only thing we ask, we who are the last, we who are the invisible, is that they think about us.
The Regularization Program
The regularization program was included in a broad stimulus aid package adopted in May amid the pandemic. The objectives written into the law were twofold: to “guarantee adequate protection of individual and collective health” and to “facilitate the emergence of irregular employment relationships” – to bring informal and undocumented work out of the shadows. In practice, the measure – the ninth ad hoc program of this type in Italy since 1982 – responded to a strategic economic interest in ensuring enough workers in essential labor sectors rather than a rights-based approach.
The program created two separate administrative pathways for undocumented migrants to regularize their status. First, an employer sponsorship scheme limited to the agricultural sector, including livestock and fisheries, and the home care sectors, including care in the home and domestic work, available to people already employed irregularly – or with someone willing to hire them in these sectors – and who could prove they were in Italy before March 8, 2020.
In this case, the length of the residency permit is determined by the length of the employment contract but can be converted into another type of permit, including based on work in a different sector. Because one of the key objectives was to address undeclared work in these sectors regardless of status, Italian and EU citizens were also eligible for this pathway.
Second, a pathway for people who became undocumented on or after October 31, 2019 and could prove that they were previously employed in the agricultural or home care sectors, to apply for a six-month permit to seek work in these sectors. This permit can also be converted.
Applications for both pathways were accepted between June 1 and August 15, 2020. According to official Interior Ministry data, 207,542 people applied under the employer sponsorship system, 85 percent for home care workers and only 15 percent for the agricultural sector. There were only 12,986 applications for a residence permit for the purpose of seeking employment. The official data does not provide a gender breakdown.
It is too early to know how many applications will prove successful. It is already clear, however, that many undocumented workers were unable to apply because there were excluded a priori by the narrow scope of the program or because of lack of clarity about eligibility and the limitations of the employer sponsorship approach.
The decision to restrict the program to sectors considered strategic amid the pandemic denied tens of thousands of people the opportunity to regularize their status. The significant number of undocumented migrants working in construction, logistics, and the hospitality industry, for example, were ineligible to apply.
Some organizations and trade unions called for a broad amnesty for all undocumented migrants in Italy given the public health crisis, while others proposed amendments to broaden the scope of the employment-based program when parliament converted the government decree into law, in July. All amendments were rejected.
Hamid, 21, an Egyptian who has lived and worked in Italy since 2014, expressed his frustration at being excluded: “I had a residency permit as I was a child when I came here, but I lost it [it expired at 18]. I have always worked. I work in a carwash now … why can’t I [benefit from] regularization?”
Tatiana Esposito, head of the Labor Ministry’s immigration and integration department, acknowledged the limited reach of the program and said the agency worked with other parts of the government to broaden the number of beneficiaries in the implementing circulars. For example, a July 2020 circular clarified that part-time work in either sector was sufficient to apply.
The second pathway, the jobseeker permit, was similarly restrictive. Only people who became undocumented on or after October 31, 2019 and could prove that they were previously employed in agriculture or home care, were eligible.
Only 2 out of 18 undocumented migrants interviewed applied via this pathway. Ismael, 23, from the Gambia, was able to apply because his residency permit, as an asylum seeker, expired in December 2019. He opted to forgo a final appeal against the rejection of his asylum application and had already received his new residency permit in July, valid until December.
Four of the workers interviewed had residence permits that had expired before the cut-off date in 2019. Ibra, a 35-year-old from Senegal, was ineligible by just ten days: his humanitarian leave to remain expired on October 21. He had been unable to renew it because of the 2018 abolition of the humanitarian permit. His employer refused to sponsor him.
Human Rights Watch was unable to determine the logic or justification for the October 31, 2019 cut-off date.
Impact of Gaps in the Law on Asylum Seekers
Gaps in the law generated confusion and may have prevented many from applying. The government issued six circulars to clarify or specify requirements, costs, and procedural questions – two of them in September and November, well after the deadline to apply. In addition to the circulars, the Interior Ministry published clarifications on a dedicated webpage.
In particular, the eligibility of asylum seekers, many of whom face the prospect of becoming undocumented due to Italy’s high rejection rate, was unclear and required clarification in three separate circulars. Authorities should have provided legal certainty and clarity about the regularization pathways before the program went into effect and then should have mounted an information campaign timed to precede the registration deadlines.
On June 19, the Interior Ministry clarified that asylum seekers could not apply for the jobseeker permit because asylum seekers are in Italy legally, with a right to work, but could apply under the employer sponsorship program, insofar as this was designed also to bring undeclared work out of the shadows, including by people with a right to be in Italy.
Then, on July 7, the ministry said that asylum seekers could apply for the jobseeker permit but would have to withdraw their asylum claim if offered the permit. On July 24, the ministry provided yet more details about the options available to asylum seekers who apply under the employer sponsorship pathway. On August 13 – two days before the deadline for applications – the ministry issued another explanatory leaflet in five languages.
Over the past two years, Italy has rejected record numbers of asylum claims, including due to the abolition of the humanitarian leave to remain in 2018. Between January 2019 and mid-May 2020, more than 91,000 asylum claims were rejected; the overall rejection rate at first instance was 80 percent.
Two asylum seekers told Human Rights Watch they did not apply for regularization because they believed they could not. Bernard, 27, from Ivory Coast, said he would have liked to apply because he fears he will be denied asylum and he is worried about losing his legal status definitively. “It would take me until tomorrow to tell you all that I will not have if I become undocumented,” he said. A third asylum seeker said he withdrew his claim to apply under the jobseeker pathway. When interviewed, he had already received a six-month permit in July.
As with previous regularizations in Italy, the main pathway was via employer sponsorship. An approach based on the willingness and active participation of the employer carries with it the risk of heightening the vulnerability of undocumented workers to exploitation and abuse. It proved especially unsuited to the agricultural sector. Aboubakar Soumahoro, head of a workers organization called Lega Braccianti, said the reason there were few applications from farmworkers is “the power given exclusively to the employer, who decides life and death for fieldhands.”
Many agricultural workers do not know who their employers are. The widespread system of caporalato uses middlemen to broker recruitment and payment of agricultural workers, on an informal and ad hoc basis. Intermediaries, or caporali, who are in many cases connected to organized crime, act as a link between workers and farm owners. Depending on demand, workers can toil on different farms every day of the week. The special rapporteur on contemporary forms of slavery called the system “one of the main causes and consequences of slavery-like practices,” particularly in the agricultural sector in southern Italy.
Caporali, many of them migrants themselves, reportedly also served as intermediaries for the regularization program. A representative of Caritas, an aid organization connected to the Catholic Church, said at least 10 workers in the Foggia area told her a caporale had offered to find an employer willing to sponsor them for a €3,000 ($3,649) fee.
Human Rights Watch spoke with five workers who were able to approach their employers and were refused sponsorship. Burak, from Sierra Leone, said, “I asked all my old bosses who had said they wanted to help me in the past. But when the opportunity came, they said no.” Burak ultimately found someone to sponsor him with the help of a labor union. Moussa, 28, from Senegal, who has lived in Italy since 2014, said he asked his employer immediately, but was refused: “If I had papers, my life would be better. I could get a driver’s license, I would try to get a job as a mechanic, doing what I know how to do.”
In a July 2020 circular, the Labor and Interior Ministries clarified that undocumented workers who were unable to conclude the labor contract and residency permit through no fault of their own – for example, if the employer dies or the agrobusiness fails – can conclude the contract with another employer. If that is not possible, the worker “will have the right to request” a permit to remain for the purposes of seeking employment. In mid-November, the Interior Ministry issued another circular stipulating that the authorities will assess case-by-case, apparently with broad discretion, whether to give an applicant a permit to seek employment if the employer formally rescinds the offer or simply fails to follow through.
Financial Burden on Worker
Even though the procedure required employers to pay the €500 ($608) application fee, 8 out of 18 workers interviewed said their employers insisted the workers had to pay the fee themselves. Three were unable to afford the fee and lost their chance to regularize their status. Those who agreed to pay saw it as a way out of the informal settlements and a chance to lead a dignified life. Omar, from Senegal, said he paid not only the fee but also paid €250 ($304) to his employer’s wife for doing the paperwork.
Caritas Foggia said they were able to convince four out of eight employers they approached to sponsor a total of six agricultural workers. The workers paid the application fee themselves. Since then, one employer has reportedly changed his mind and will not keep the appointment with the police to formalize the employment contract. The two workers he had committed to sponsor, risk losing their money and their chance to obtain a residence permit.
In some cases, employers demanded much more money. Mathis, 51, from Guinea, who has been in Italy for 24 years, said his employer of seven years asked for €3,000 ($3,649):
To afford to eat is difficult for me, how can I pay 3,000? … I even suggested that if he would sponsor me for the permit, he could deduct what he wanted from my pay, but instead, he fired me.
Lemar, 42, from Senegal, has been living in Italy since 2011. He became undocumented in 2014 when he was unable to renew his humanitarian permit. His employer also demanded €3,000. “I didn’t do the regularization because my boss refused to take responsibility,” Lemar said.
Mara Di Lullo, deputy head of the Interior Ministry’s immigration department, said there was little the authorities could do:
We don’t have any means to control who pays. We understand that the employer has the power to shake down the worker. If this becomes an excuse to continue a situation of abuse, the worker can go to the police with proof. They have to have the courage to report it.
Fraud and Scams
The narrow scope of the program arguably encouraged fraudulent applications and heightened the vulnerability of undocumented migrants to scams. These were features also of the 2009 and 2012 regularization programs. The International Organization for Migration described what it called “generalized fraud” in an agricultural area in southern Italy during the 2009 regularization.
Lawyers, labor union representatives, and nongovernmental workers in various parts of the country said that people had been asked for exorbitant sums of money in exchange for invented labor contracts. Based on these interviews, the going rate varied from €4,000-5,000 ($4,866 – 6,082) in Naples to €6,000-7,000 ($7,299 – 8,515) in Rome and Milan.
While Human Rights Watch did not interview anyone who said they had paid for a fictitious contract, two people said they had “hired” someone as a domestic worker to allow them to regularize their status, without charging them. Sanji, 21, from the Gambia, who works as a day laborer on farms, said he found someone willing to sponsor him as a domestic worker after his employers in the agricultural sector refused.