Programmes and strategies in Italy fostering assisted return and re ...

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EMN EUROPEAN MIGRATION NETWORK Italian National Contact Point

Programmes and strategies in Italy fostering assisted return and re-integration in third countries

Edited by IDOS Study and Research Centre (Franco Pittau, Antonio Ricci, Giuliana Urso) with the support of Ministry of Interior www.emnitaly.it

ROME 2009

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EMN ITALY Programmes and strategies in Italy fostering assisted return and re-integration in third countries Edited by Franco Pittau, Antonio Ricci, Giuliana Urso Translated by Laura Timsa

INDEX

Summary

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1. Introduction: purpose and methodology followed The return: an issue studied at national and international level Methodological premises

5 8

2.Definitions, categories of returnees and statistical data Definitions and categories of beneficiaries Data on assisted return

10 13

3. Political and legal framework National overview The influence of European policy concerning returns

25 34

4.Overview of assisted return measures Reasons and obstacles Organization and actions

38 40

5. Reintegration and sustainability for return

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Conclusions: best practices and lessons learned

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Bibliography

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Statistical Appendix

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Summary Starting with the 90‟s, due to its particular geographic position in the centre of the Mediterranean routes, Italy faces a continuous increase of immigrant population, maintaining in the same time a strong irregular dimension, related to different factors concerning norms and customs. Since then, strict measures of control and counteracting the irregular flows are introduced as one of the basic elements of the migration policy, and in the same time special procedures of voluntary accompaniment in the country of origin are envisaged. The same attention is given at EU level as well. The current study is, in fact, part of the work programme of European Migration Network, a network formed in 2003, coordinated by the European Commission, under the responsibility of the General Directorate for Justice, Liberty and Security which connects all the member states of the European Union through specific National Contact Points. The importance of a cooperative approach is proved by the exchange of information and researches on common themes, between various countries. One of these themes is the assisted voluntary return which is analyzed in this study. The goal is to contribute, by means of statistic data, specific scientific literature and national good practices of every member, to the creation of a common policy for asylum and immigration, as suggested by Laeken European Council of 2001 and thereafter approved and encouraged by the following Councils of Thessaloniki (2003) and The Hague (2004). In the Italian case, the strong migration pressure faced by Italy during the past few years orientated the legislative actions towards a stronger border control, as it can be noticed in the migration policy. The study approaches the return in its both forms, forced return and voluntary return, making constant references at today‟s literature on the topic, aiming to provide - at national and European level - for politicians, researchers, social workers and for the migrants themselves and migrants associations as well - the necessary instruments to analyze the Italian experience. The study focuses especially on the second form of return, the assisted voluntary return, accessible only for some categories of migrants: trafficking victims and humanitarian cases, migrants for humanitarian emergencies and asylum, unaccompanied minors. The study, as its structure shows, aims to examine all the dimensions related to the phenomenon (statistic, demographic, social, politic and juridical ones) which was given importance in public debates as well. A methodological annotation is necessary within the study in order to encompass the sources used and the scientific literature developed on this theme. As far as forced return is concerned, the relevant information regards expulsions, border rejections, landings and detainees in Identification and Expulsion Centres (previously called CPT – Temporary Residence Centres). The data are provided, first of all, by the Ministry of Interior, institution delegated also to finance voluntary returns which were entrusted, in the operational phase, to recognized competent organizations in the field of migration, such as the International Organization for Migrations (IOM) which proves to be an important source of information for quantitative analysis as well. The quantitative and demographic study reveals a strong and continuous increase of the migratory pressure on Italian territory, especially on the southern coasts, where during the last year the number of landings almost doubled. A change of situation in comparison with the previous decade is obvious if we take a look at voluntary return data. At that time, humanitarian emergency cases weighted upon 75% of the total number of returnees. Then, the stability in the Balkans brought, over the years, to their continuous decrease up to zero nowadays. For this reason, now, the government intervention concerns mainly other categories of beneficiaries. The paragraph regarding the political and legal framework presents the evolution of the normative at international, EU and national level. Particular emphasis will be made on the 3

influence exerted on the national dimension by the binding normative acts as well as by some indications and decisions taken at European level. Constant references are made to Geneva Convention, ratified by Italy in 1954. This document was followed at international level by various conventions of the United Nations and some recommendations expressed during the G8 meetings, aiming to promote the practice of assisted voluntary return, underlining in the same time the positive correlation between return migration and development in the countries of origin. At European level, after a first common task of finding minimum norms for granting the refugee status (Directive 2004/83/EC and Directive 2005/85/EC, already adopted by the Italian legislation), the attention goes to the promotion of assisted voluntary return, on one hand (especially by Decision 2007/575/EC that instituted the European Fund for Return and Directive 2008/115/EC) and on the control of external borders, on the other hand (European Pact on Immigration and Asylum of December 2008). In the Italian case, due to the last modifications of the so called “Security Law” no. 94/2009 (“Pacchetto Sicurezza”), the combination of these two dimensions led to a rethinking of the assisted voluntary return practices. The exclusion of irregular migrants from the group of beneficiaries makes the assisted voluntary return efficient only partially. The actions and the procedures, analyzed in a special paragraph, are prevalently managed by international organizations (IOM) or non-governmental organizations (such as Caritas, Italian Council for Refugees CIR, etc). In this field operate as well some migrants associations, research centres and centres for decentralized cooperation. If we go more in depth we find as main target the vulnerable groups, trafficking victims and asylum applicants and, among the most representative nationalities, the Moroccan and the Albanian ones. The analysis of five years experience reveals the positive results in most of these cases, either when referring to actions that may benefit from continuity and presenting a significant level of strengthening and professionalism, or when considering smaller projects, suggesting thereby the opportunity of a major encouragement and support. In the end, for reasons of completeness, in the analysis of the various phases of the return, the paragraph on reintegration and sustainability of return comes to summarize the “pre-return” information campaigns and “post-return” assistance activities addressed to the migrants who would benefit from return. A particular reference will be made to actions connected with foreign policy and bilateral and multilateral cooperation, with emphasis on re-admission and bilateral agreements.

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1. Introduction: purpose and methodology followed

1.1. The return: an issue studied at national and international level The theme of the return underwent attentive analysis that have involved both international and regional organizations and political and academic sector. Among many initiatives and conferences on this topic, the regional advisory processes are the most efficient in terms of results because, thanks to the creation of informal networks, they stimulate the cooperation between the different parts of the states and participate at the creation of guidelines1. The return represents, thus, one of the concrete and effective responses of certain countries to the problem of migration flows control. However, associating return exclusively with a policy of rejections, that follows the necessary objective of the state regarding the entrance control of non-nationals on its territory, would be quite limitative since many of the returns are made on voluntary basis, the decision being taken by the migrant himself rather than legally imposed to him. The economic and political changes in the country of destination or in the country of origin, as much as the way in which the return takes place, have a significant importance for migrant‟s individual experience, for his ability to reintegrate in the country of origin, and therefore, for the sustainability of the return2. We have to take into account that the two forms of return, forced and voluntary, do not exhaust the category of return. In addition, new alternatives need to be mentioned: the so-called “virtual” return3 and the circular migration 4. In both cases a partnership with relevant institutions in the countries of origin and destination is required in order to use to advantage, as much as possible, the potential of development inherent in migration. Unlike the circular migration, organized and based on a “fluid” relationship between states which are recognized, in a transnational perspective, as a single economic space, the “virtual” return does not imply any physic movement of the migrant, but a return in terms of skills and resources in the country of origin. Because of its natural geographic position, Italy is one of the most important crossroads of the migration flows towards Europe and, due to Schengen agreements and to the following measure of abolishing the borders within European Union, one of the main entrances to the whole EU5. The return as an instrument has assumed, therefore, a functional role in comparison 1

Cassarino Jean-Pierre, Condition of Modern Return Migrants – Editorial Introduction, in “International Journal on Multicultural Societies”, 10, 2008, pgs 95-105. 2 IOM, International Dialogue on Migration 2008. Return Migration: Challenges and Opportunities, Acts from the conference of November 10, 2008, Geneva, 2008, p. 3. 3 A good example is given by remittances flows. See: OECD, Migration, Remittances and Development, Paris, 2005. 4 For further information see: Caso Raffaele, Migrazione e Sviluppo: la politica europea, ISPI, Policy Brief n.58, July 2007 in www.ispionline.it; Agunias D. Rannveig and Newland Kathleen, Circular migration and development: trends, policy routes and ways forward, MPI, April 2007; Agunias D.Rannveig and Newland Kathleen, How can circular migration and sustainable return serve as development tools?, GFMD, July 2007. At European level see “Circular migration and mobility partnership between EU and Third Countries” [COM(2007) 248 final], which follows the previous communication “Migration and development: concrete directions” [COM(2005) 390 final] and the communication “The global approach in matters of migration one year after” [COM(2006) 735 finale], as well as the one containing the “Action plan for legal immigration” [COM(2005) 669 final]. 5 The strong intensity of irregular flows characterizes Mediterranean countries, including Italy. In our country‟s case, next to its geographic position, other factors lead to the increase the irregular dimension, and they can be

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with the border control and has been forced in the case of those who lacked (or stopped fulfilling) the conditions required for the residence on territory. This meaning of return is reflected in the normative provisions which, at both European and national level, highlight the fight against irregular immigration as one of the basic elements of the migration policy6. In January 2008 Ismu Foundation7 evaluated the number of irregular immigrants in Italy at 650 thousands, which means one irregular every five regulars, 300 thousands more than the previous year. In the same year 2008, the foreign resident population amounted to 3,433,000 units and on 1st of January 2009 it reached 3,900,000 units8 with an incidence of 6.5% on the national population (EU national included). The most represented nationalities are the East Europeans, ranking more than 40% of the foreign residents. Among them Romanians (since 2007 EU nationals) and Albanians are the first in terms of numbers, followed by Morocco. On medium term it is expected that the incidence of immigration from this area would decrease, in contrast with the Latin-American nationalities (Ecuador, Peru), the Asians (China, Philippines, Bangladesh, Pakistan, India) and the Africans (Senegal, Nigeria, Egypt) who are expected to increase. Unlike what happens in various Northern Europe countries, Italy is not focused on attracting the high-skilled migration. The national framework is characterized by two factors: the negative demographic trend and the labor market request of unskilled labor force. The scenario elaborated by Istat9 for 2030 anticipates that immigration would reach 8 millions units and it still wouldn‟t be able to resolve by itself neither the problem of birth rate decline, nor the one that regards the old-age dependency ratio. The current demographic transition which - according to the OECD estimations10 - will see less than two workers for every retired worker, requires indeed a continuous integration of young workers in the labor market, in order to meet the productive requirements, making of immigration a basic element for the growth of Italian population. Therefore, the continuous balance between efficient measures of flows regularization and socio-occupational inclusion policies is absolutely necessary. After mid nineties, the Italian governments have tried to handle this double demand: to fill in the demographic gaps (as well as in the labor market) and to handle the large migration flow, implementing instruments and measures of prevention regarding irregular immigration. Within the Law no. 40/1998 (the so called “Turco-Napolitano Law”) the contrast of irregular flows becomes a pillar of the migration policy (next to “flows planning” and integration). The same law introduces the “rejection by Chief of Police order” and institutes the Temporary Residence Centres (CTP) for foreigners who are subjects to expulsion or rejection orders which are not immediately executable11. With the following Law no. 189/2002 (the so called “Bossi-Fini Law”) a special attention is paid to expulsions through immediate accompaniment at the border. The internal controls are divided in two categories: 1) The tension between policies and markets: the need for flexibility in labor market in order to get together the supply and the demand of labor; the setting of regular entrance quotas below the needs of the labor market expressed in employment requests; the spread of the black economy. 2) Migration policy and the same migratory dimension: the need for a serious economic and organizational commitment in order to control the flows efficiently, accurately and promptly and to restraint the irregular ones; the frequent use of the instrument of regularization; the complexity of the process involved in the legal integration and in maintaining the status; the attraction of the migratory networks. 6 See: chapter III. 7 ISMU Foundation, Quattordicesimo rapporto sulle migrazioni 2008, Franco Angeli, Milan, 2009 8 Istat data, www.istat.it. Caritas/Migrantes researchers estimate a higher number of immigrants equal to 3.987 thousands already at 31st of December 2007 (about 16% more than Istat) since they include also the persons who are waiting for the residence, which often takes more than one year. 9 See: Istat, Previsioni demografiche nazionali – base 1.1.2005 and Istat, Previsioni demografiche nazionali – base 1.1.2007, in www.istat.it. See also: Golini Antonio and Marsili Marco, Le nuove previsioni demografiche dell’Istat, in Caritas/Migrantes, Dossier Statistico Immigrazione 2008, Idos, Rome, 2008, pgs 116-124. 10 OECD, Factbook 2009, Paris, 2009. 11 Pittau Franco, L’immigrazione alle soglie del 2000, Sinnos, Rome, 1999.

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reinforced also by lengthening the period of detention in CTPs and by imposing stiffer penalties for those who do not comply with the expulsion decree. The external controls appeal to the readmission agreements and border control policies of the emigration and transit countries. The abovementioned law has also regulated the assisted voluntary return in behalf of the vulnerable migrants, such as trafficking victims, humanitarian cases, migrants in humanitarian emergencies and asylum applicants12. The recent “Pacchetto sicurezza”, approved by Law no. 94 of 15th July 2009 stressed on the control dimension revealed by the Law no. 189/2002, considering irregular immigration an extremely urgent problem to be solved. The two directions, of internal and external control (not only at the borders but also on national territory), follow the common goal of counteracting irregular immigration13: on one hand it is introduced the “crime of irregular immigration” (reato di clandestinità) and the detention in Identification and Expulsion Centres (CIEs which replace the CTPs) is increased up to 180 days, and on the other hand the surveillance of the southern coast and the rejections are intensified, with the help of agreements with third countries as Libya. The component of assisted voluntary return, instead, is reorganized in accordance with the indications of the European directive 14, excluding the possibility to grant it to irregular resident immigrants who, due to the criminal conviction resulted from the introduction of the crime of irregular immigration, cannot benefit from its provisions. In this context shall be placed also the study on assisted voluntary return and integration of third country nationals15, carried out by the team of the Italian National Contact Point of the European Migration Network EMN 16. The objective is to provide a detailed analysis of the various types of return, with special interest in assisted voluntary return, highlighting therefore the guidelines and the projects promoted in Italy. The target group is not limited at irregular immigrants but it contains also asylum applicants, refugees, persons who benefited from subsidiary or temporary humanitarian protection, trafficking victims or immigrant workers in difficulty assisted by special programmes for return and reintegration in the country of origin. The purpose behind the current study is to increase the awareness and to provide information regarding the theme of the return for both institutional and non-governmental area and for public opinion, focusing on assisted voluntary return and the good practices derived from it. Carried on by a European network, the study wants to contribute at the creation of a continue and efficient change of information between various European countries, to share its own experience and to benefit of that of others, in order to improve the content of the national migration policy as well as to contribute at the continuous harmonization of various European policies towards a common European policy. The study addresses, therefore, to researchers who intend to carry on future comparative studies at national and European level, because it provides necessary instruments and data for eventual new elaborations on the theme. 12

De Marco Manuela, Pittau Franco, Caractéristiques structurelles de l’immigration en Italie et réponse législative du gouvernement de centre droit, in «Migrations Société», XV, 87-88, 2003, pgs 9-22; Acquasana Leda, Centri di Permanenza Temporanea e Assistenza (CPTA): i nuovi “contenitori” dell’immigrazione, in “Studi Emigrazione”, 164, 2006, pgs 903-917. 13 See: chapter III. 14 Directive 2008/115/CE. 15 The previous requests promoted by EMN regarded “The impact of immigration on Italian society” (2004), “The illegally resident immigrants in Italy” (2005), “Return migrations: the Italian case” (2006). Other studies of the same network have regarded “Reception structures and social conditions of asylum applicants within the Italian reception System” (2005), “Managed migration and the labor market: the health sector in Italy” (2006), “Conditions of entry and residence of Third Country Highly Skilled workers in Italy (2007)”, “Organization of migration and asylum policies in Italy” (2008), “Reception, return and integration process for, and number of, Unaccompanied Minors in Italy” (2009), “The different national practices concerning granting of non-EU harmonized protection statuses in Italy” (2009). The overview of the research undertaken is completed by the annual reports on statistics and the annual reports on asylum and migration policies. 16 See: http://emn.sarenet.es/html/index.html (provisional website pending the activation of specific sub-directory within the European Commission website: emn.europa.eu).

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1.2. Methodological premises Regarding forced return, the main source of information is the ad hoc archive edited by Data Elaboration Centre (Ced) of the Public Security Department at Ministry of Interior which provides, among others, information on irregular flows and returns, through data concerning irregular landings, expulsions, border rejections, detentions in Centres of Identification and Expulsion. When going in depth with the theme of irregular immigration, we find relevant the researches on irregular workers run by the Ministry of Labor, as well as the annual Report of the Audit Office on the budget of the State. The action of border control can be studied in connection with the readmission agreements of the Ministry of Foreign Affairs as well. Regarding the study of assisted voluntary return as well, the main source is the Ministry of Interior, institution delegated to finance the official activities, entrusted, in the operational management to the International Organization for Migration (IOM), which proves to be an important source of information and statistic data 17. Another source, as far as asylum applicants are concerned, is the Italian Refugee Council (CIR). When it comes to migration phenomenon, every study has to consider the trend of migration in the current contexts, referring to its dynamic and structural data, as in the case of Italy through the National Statistic Institute (Istat) which since 1990 provides accurate and updated information regarding the presence of foreigners on Italian territory as well as the Statistic Dossiers on immigration edited yearly by Caritas/Migrantes, which bring precious contributions to the analysis of the migration phenomenon in Italy with its various elements. Starting with the seventies and eighties, we can observe a certain evolution of the scientific literature concerning return, which focuses over the years on specific aspects. Various conceptual categories and interpretative hypothesis have been elaborated for describing and evaluating immigrants‟ reintegration within their countries of origin 18. The theme of return has been attentively studied by international organizations such as IOM (www.iom.int) - which in 2008 elaborated the theme of “Return Migration: Challenges and Opportunities”; in the same year, at Geneva different specific workshops were dedicated to it, such as “Managing Return Migration” and “Enhancing the Role of Return Migration in Fostering Development”, while OECD (www.oecd.org), organized a meeting of experts on “Return Migration and Development”19 followed by various publications 20. There are also different Italian centres specialized in the migration phenomenon, distinguishing themselves for their accurate analysis, such as the Study Centre for International Policy – Cespi of Rome (www.cespi.it), the International and European Forum for Immigration Research – Fieri of Turin (www.fieri.it), the Institute for Multiethnic Studies – Ismu Foundation 17

The central Headquarters of IOM in Geneva has carried out researches regarding the return and human trafficking and has edited, over the years, the elaboration of many projects concerning the migrants‟ return and reintegration in the countries of origin. Using the potential of its own regional network, IOM created a database, derived from this activities, named “Migrant Management and Operational Services Application” (MIMOSA). 18 See, among others: Boverenk Frank, The sociology of return migration. A bibliographic essay, Martinus Nijhoff, Den Haag, 1974; Alvarez Silvar Gabriel, La migración de ritorno en Galicia (1970-1995), Xunta de Galicia, La Coruna, 1997; Cerase Francesco Paolo, L’onda di ritorno: i rimpatri, in Bevilacqua Piero, De Clementi Andreina, Franzina Emilio (eds), “Storia dell‟emigrazione italiana”, I Partenze, Donzelli, Roma, 2001, pgs 113-125; Cassarino Jean-Pierre, Theorising return migration: the conceptual approach to return migrants revisited, in “International Journal on Multicultural Societies, vol.6/2, pgs 253-279; King Russell (ed.), Return Migration and Regional Economic Problems, Croom Helm, London, 1986; Corti Paola, Dal “ritorno” alle visits home: le tendenze di studio nell’ultimo trentennio, in “Studi Emigrazione”, XLIII, n. 164, 2006, pgs 927-946. 19 Paris, 12th November 2007. 20 We suggest the following publications: OECD, Return Migration: A New Perspective, in “International Migration Outlook 2008, Sopemi, Paris, 2008; and for an analytical overview: Urso Giuliana, Per una strategia globale: migliore migrazione e maggiore sviluppo, in “Affari Sociali Internazionali”, 3-4, 2008, pgs 79-88.

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of Milan (www.ismu.org). In addition, the EU agency placed in Turin, known as European Foundation for Professional Formation – EFT (www.eft.europa.eu), elaborated in the last years various reports on the contribution of human resources development in the migration policy in Tunisia, Moldova, Albania, Egypt and Ukraine. We should mention as well MIREM, an interesting project of the European University Institute – EUI of Florence (www.mirem.eu) focused on migration in the Mediterranean area. The National Contact Point of EMN has repeatedly brought its contribution to this theme, as well as the other contact points of the Network.

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2. Definitions, categories of returnees and statistical data

2.1. Definitions and categories of beneficiaries The scientific literature on the theme of return keeps underlining the difficulty of defining the return and the returnees21, which makes a comparative study very difficult. Already starting with the 80‟s22, the ambiguity and indetermination in the conceptualization of various forms of return, were obvious: the transitory or definitive character, the destinations including more states, the actors involved. A significant contribution for a comparison regarding the theme of return can be found in the study “Return Migration: The Italian Case” of 2006, made by European Migration Network, whose continuation the present study is, as in the researches carried out at international level (International Organization for Migrations, 2004, European Parliament, 2005; United Nations Development Programme, 2008; Fundamental Rights Agency, 200923). The “return” is defined in the Glossary edited by the European Migration Network as “the movement of a person who returns in its own country of origin, nationality or residence after having passed a significant time span (e.g. excluding periods of vacation or work meetings, considering instead a period of more than three moths) abroad. The return can be more or less voluntary24. For the purposes of the European Parliament‟s and the Council‟s Directive on common norms and procedures applicable to returns of the third country nationals with irregular residence in the Member States, the so-called “return directive”, pursuant to Art. 3, applies the following definitions: a) “third country national”: any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty and who is not enjoying the Community right of the free movement, as defined in Article 2(5) of the Schengen Borders Code; b) “irregular stay”: the presence on the territory of a Member State of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Art. 5 of the Schengen Borders Code, or other conditions for entry, stay or residence in that Member State; c) “return”: the process of going back - whether in voluntary compliance with an obligation to return, or enforced to: - one's country of origin, or... 21

OECD, International Migration Outlook 2008, Paris, 2008; Cassarino Jean-Pierre, Theorising Return Migration: The Conceptual Approach to Return Migrants Revisited, in “International Journal on Multicultural Societies, UNESCO, 6/2, 2004, pgs 253-279, Corti Paola, Dal “ritorno” alle visits home: le tendenze di studio nell’ultimo trentennio, in “Studi emigrazione”, 164, 2006, pgs 927-946; 22 Kritz Mary, International Migration Policies: Conceptual Problems, in “International Migration Review”, 21 (4), 1987, pgs 947-964; Simon Gildas, Los fenomenos migratorios en Europa meridional: panoralma general, in OECD, “El futuro de las migraciones”, Madrid, 1989, pgs 169-180. 23 International Organization for Migration, Return Migration Policies and Practices in Europe, Geneva, 2004; European Parliament, Refugee Status in EU Member States and Return policies, 2005; UNDP, Low skilled workers and bilateral, regional and unilateral initiatives, 2008; Fundamental Rights Agency, Protecting, respecting and promoting the rights of irregular immigrants in voluntary and involuntary return procedures, study programmed within the annual working plan of the European Agency for 2009. 24 Directive 2008/115/CE of December 2008, GUCE L 384/98

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- a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or ... - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted; d) “return decision”: an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be irregular and imposing or stating an obligation to return; e) “the removal”: enforcement of the obligation to return, namely the physical transportation out of the country; f) “entry ban”: and administrative or juridical decision or act prohibiting entry into and stay in the territory of the Member States for a specified period, accompanying a return decision; g) “risk of absconding”: the existence of reasons, in an individual case, which are based on objective criteria defined by law, to believe that a third-country national who is subject to return procedures may abscond; h) “voluntary departure”: compliance with the obligation to return within the time limit fixed for that purpose in the return decision; i) “vulnerable persons”: minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, persons who have been subject tot torture, rape or other serious forms of psychological, physical or sexual violence. Consistent with the object of the abovementioned directive that aims to establish common norms and procedures regarding third-country nationals who stay irregularly, the return - or the process of going back to another country, whether it is the country of origin, a country of transit or a third country - is considered to be the result of the obligation to return, whose compliance can be voluntary (voluntary departure) or forced (removal). According to International Organization for Migration, the return means, in general terms, the action or the process of turning back, which can take place within or outside the borders of a country 25. The return can be then divided in different under-categories, useful to describe not only the way in which it took place (for example voluntary or forced, spontaneous or assisted), but also the way in which the migrant is involved in this action (for example in irregular situation or as refugee). More precisely, the “return migration” is considered the movement of a person who returns in his own country of origin or residence, after having passed at least one year in another country. The return can be more or less voluntary. By “voluntary return”, IOM understands the spontaneous or assisted return (case in which we deal with assisted voluntary return) based on the voluntary decision of the individual to leave the country. In the first case the individual decides to return on his own, unlike the case of assisted voluntary return which requires logistical and financial assistance by the guest state or by others as, for example, international organizations. It shall be underlined the difference between the concept of “voluntary return” as indicated by IOM, based on the free choice of the migrant, and the concept of “voluntary departure” as indicated in Return directive, which follows, within the conditions provided for, a return provision. In the definition of “vulnerable group” as well, the indications of IOM vary partially, referring generally to every social group or category which is, more than other groups within the State, subject to high risks of discriminatory practices, violence, natural disasters, economic adversity, or any social group or category (as for example women, children and elderly people) who are in major danger in times of conflict and crisis. 25

IOM, Glossary on Migration, Geneva, 2004.

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Various definitions of return are associated with various categories of returnees. In accordance with Art. 2, the Return Directive applies to the third country citizens whose staying in the territory of one of the member states is irregular. The application excludes beneficiaries of the EU right to free movement, as defined by Art. 2(5) from Schengen Borders Code, but gives a certain freedom for the Member states to decide or not the application of the Directive in the case of third country citizens who are: - subjects to border rejection according to Art. 13 of Schengen Borders Code or persons stopped or caught by the competent authorities, while crossing irregularly by land, sea or air the external border of a member state and who were not given afterwards the authorization or the right to stay in that Member State; - subjects to return as a penal sanction or as the consequence of a penal sanction, in conformity with the national law, or subjects to extradition procedures. In case of voluntary compliance with the obligation to return emerged from an administrative or juridical decision which attests the irregular stay, we deal with voluntary departure, otherwise with forced return. It stands out, therefore, the position of the migrant whose irregularity concerns the entry, the residence or the lack of conditions required for a legal stay. By “irregular immigrant” we understand the foreigner who entered the country irregularly, violating the entry and stay procedures; by “irregular immigrant” or “overstayer”, the foreigner who entered the country legally, but who stayed there more than the period allowed, thus who no longer has the documents required for residence. The asylum applicants are not included in the category of irregular immigrants unless a negative decision regarding their application is taken, or a decision puts an end to the applicant‟s right to stay. By “asylum applicant” we understand a person who demands to be admitted in a country as a refugee and is awaiting a decision regarding his application for obtaining the refugee status, according to the international and national instruments. In case the application is positively acquired by the competent authorities from that country26, in other terms, if it meets the criteria required by the Status of the High Commissioner for the Refugees, the person is granted the status of political refugee, since he is considered, according to Art. 1A(2) of Geneva Convention, a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his/her nationality and is unable to, or owing to such fear, is unwilling to avail himself/herself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”. The most complex concept of “voluntary return”, as indicated by the International Organization for Migrations, refers not only to the category of migrants (irregular migrants) who fall within the category of “voluntary departure”, but also to those who voluntarily decide to return, being in the following situations: - having a residence permit in a Member State; - not having a valid residence permit, but without being yet subjects to a return decision; - having applied for the residence (for example the applicants for asylum or international protection) and still awaiting the decision. The assisted voluntary return can be considered an under-category of the voluntary return since it aims at giving logistical, financial and/or material assistance to those who decide for voluntary return. Often, the financial support is provided by the state, either directly or indirectly 26

In Italy this authority is the Central Committee for the Recognition of the Refugee Status. In accordance with the EU law n.343/2003, so-called “Dublin II”, the territorial committee suspends the examination of the application and declare the end of proceedings in those cases for whom, according to certain criteria of granting the refugee status provided by the abovementioned law, other Member States are competent

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by financing other institutions or organizations. The European Fund for Returns is considered a further source of financing projects of assisted voluntary return. In the case of Italy, several groups of migrants may benefit of “Assisted Voluntary Return”: the holders of a subsidiary or temporary humanitarian protection permit and the displaced persons, refugees, asylum applicants, persons who renounced at the application or whose status of refugee was not granted and, finally, the ex Dublin Convention cases. In addition we mention the group of migrants in state of vulnerability, trafficking victims, humanitarian cases, non accompanied children and workers in difficulty. Unlike suggested in the Return Directive, the Italian legislation excludes the irregular immigration from the direct access to assisted voluntary return, whereas the European Directive gives them this opportunity. The recent legislative actions have a different orientation, since the introduction of the “crime of irregular immigration”, provided by the “Security Law” (Law no. 94/2009), makes of the irregularity on Italian territory a penal case. Therefore, according to the exception mentioned in the Art. 2 (2, b) of the Return Directive, the state will have the option of not applying the directive since, according to the national law, the return is considered the consequence of a penal sanction.

2.2. Data on assisted return

Forced Return The fight against irregular migration flows is structured, at external level, on border rejections and forced returns and, at internal level, on inspections at work, which bring to light the black labor market which, in Italy, continues to be a pull factor for migrants without a regular residence permit. In 2008, there have been 6,358 rejections, landings involving 36,951 migrants, 17,880 returns and 10,539 persons who transited the Centres for Identification and Expulsion (CIE). The number of migrants effectively removed from the Italian territory reaches a total of 24,238 persons against a total of 46,391 of non-compliants with the order to leave the country. We deal with a total of 70,629 persons directly involved, while the adopted measures were efficient in 34.3%. ITALY. Rejections, expulsions and returns (2004-2008)

Border rejected Expelled/ Readmitted Tot. Rejected persons Non-compliants Tot. Involved % rejections on tot. involved

2004 24,528 35,437 59,965 45,697 105,662 56.8

2005 23,878 30,428 54,306 65,617 119,923 45.3

2006 20,547 24,902 45,449 78,934 124,383 36.5

2007 11,099 15,680 26,779 47,983 74,762 35.8

2008 6,358 17,880 24,238 46,391 70,629 34.3

SOURCE: Caritas / Migrantes Immigration Statistic Dossier. Calculations on Ministry of Interior data

The borders, places where usually rejections take place, are the areas of Milan Malpensa (1,397) and Rome Fiumicino (1,707) and the terrestrial ones of Verbania-Domodossola (777) and Como Ponte Chiasso (710). The decrease of rejections from 11,099 in 2007 to 6,358 in 2008 may be correlated with the effects of the admission of the latest East European states to the European Union (until few years ago Romania and Bulgaria were the countries with the highest 13

number of rejections), which turned some of the most active areas regarding rejections, such as Trieste, into irrelevant ones. The nationalities most involved in rejections are the Moroccans (369), Albanians (337), Serbs (306) and Brazilians (293). The total number of forced returns, derived from the sum of expulsions and readmissions, reaches 17,880 units, just a little higher than the previous year. The most representative five nationalities are those of Afghanistan (2,499), Iraq (2,344), Albania (2,044), Morocco (1,959) and Tunisia (1,052). But the differences between them concern the incidence of the total number of returns because of expulsions or because of readmissions: considering both Afghanistan and Iraq prevail the readmission cases while, on the contrary, in the other cases more than 60% of the returns are the result of expulsions. Among the provinces where the returns reach more than one thousand units we mention Ancona (2,122, almost all due to readmissions), Rome (1,727, due to expulsions), Imperia (1,796, due to readmissions), Bari (1,782, due to readmissions), Venice (1,654, due to readmissions) and Turin (1,225). The return rate - or the efficiency of the forced return, given by the number of effectively removed persons (rejected, expelled, returned) on the total of the persons involved – stands for the decreasing trend which already begun in 2004, passing gradually from 56.8% in 2004 at 34.3% in 2008. The number of non compliants has high values, reaching more than 90% for some nationalities, even if many of them register rather low absolute values: Liberia, Kenya, Gabon, China, Sierra Leone, Senegal, Niger, Mali, Gambia. The countries towards which, in terms of absolute values, the return is problematic are: Morocco (7,595), Tunisia (6,232), China (3,246), Senegal (3,226), Nigeria (3,038), Egypt (2,513), Iraq (1,696), India (1,667), Albania (1,639), Algeria (1,468). In some provinces, such as: Ancona, Venice, Imperia, Bari and Brindisi, the incidence of the returns is higher than 70%. The number of landings27 increased constantly since 2004 (after the restriction placed by Spain in Ceuta and Melilla) and almost doubled in the last year, passing from 20,455 in 2007 to 36,951 in 2008, reaching almost the same level of 1998, when Italy began to represent the destination of the large migration flow coming from the Balkan countries. This emphasizes the importance of an international cooperation with the countries of transit and origin to efficiently counteract the irregular immigration. In 2008, in Italy, 665 landings have been done, which involved 30,265 men, 3,935 women and 2,751 children, 77% of which non-accompanied and, therefore, entrusted to social structures. The number of women is much lower then the one of men, probably due to the danger and difficulties implied by the trips in the so-called “old sea boats” (carrette del mare). The number of minors is mainly concentrated in landings in Sicily, where they reach 2,584 units. Sicily, and in particular Lampedusa island (30,657), has been the most used landing place but, starting with 2007, we to notice a trend that makes the Sardinian coasts – which has known little or no landings before – the second landing port, followed by Apulia and Calabria. In the province of Cagliari, the cities of Capo Teulada and Porto Canale have known 41 and 18 landings, respectively, with a number of 607 and 335 persons involved. The most intense contrast activities on the southern coasts determined new courses for the workforce traffickers. Because of the numbers of landings that almost doubled in comparison with the previous year, the reception structures as well have known difficulties. Year 2008 was, indeed, a very intense year, not only as far as the persons involved in landings are concerned, but also regarding the total of foreigners who have transited the Centres for Identification and Expulsion, equal to

27

See: Statistical Appendix, infra.

14

10,539, a number that exceeds the sum of the persons who transited these Centres in the previous three years (9,647). Many are the analysis on these Centres28, born under “Turco-Napolitano Law” of 1998 (Law no. 40/1998) regulated afterwards by Presidential Decree no. 394/1999, by “Bossi-Fini Law” (Law no. 189/2002) and by finally by the “Security Law” (Law no. 94/2009). The most active Centre was at Rome (Ponte Galeria) with 2,653 entries, followed by the those of Milan (Via Corelli), Bari–Palese and Gorizia-Gradisca d'Isonzo with a number of entries equal to 1,360, 1,238, and 1,198 respectively. The other Centres have had less than one thousand units. The average rate of the returns of the detainees in the Centres of identification and expulsion, that is the number of persons who returned in their countries after the detention in a Centre on the total number of transited persons, had been of 41% in 2008, registering a slow decrease in comparison with the previous three years (46.2%). Still, the number of foreigners who have been released without being obliged to return is equal to 29% (3,060 persons, one out of four). The incidence of asylum applicants among the persons who transited the Centres of Identification and Expulsion increases from 1.1% to 15.1% (after the verification of the application, the persons concerned are transferred to special Centres for the reception of asylum applicants). As far as political asylum applicant are concerned, three out of four are Nigerians (772) or Algerians (418). Other outcomes of the detention, even if with a low recurrence, are: the lack of validation by the juridical authority (497 cases, equal to 4.7%, with a peak of 12.8% in the Centre of Bologna); the escape from the Centre (156 cases, equal to 1.5%, with a peak of 5.3% in the Centre of Caltanissetta); the arrest (119 cases, equal to 1.1%, with a peak of 4.4% in the Centre of Bari–Palese) and other reasons (797 cases). The most relevant nationalities among the persons who transited the Centres of Identification and Expulsion are those of: Morocco (1,833), Nigeria (1,763), Algeria (1,403) and Tunisia (1,071); none of the other nationalities covers more that 550 units. 75% of the foreigners who transited the Centres are men, the presence of women being, at some nationalities, almost zero (Algeria). Regarding the outcomes of the detention, in women‟s case prevails the return (36.3%), followed by the release (33.6%) and, at a distance, by political asylum application (11%) and by the lack of validation by the juridical authority (10.7%). For men the prevalent outcome is the return (42.4%) followed, although at a very great distance, by release (27.7%) and by political asylum application (16.3%), while the lack of validation by the juridical authority registers only 3%. Landings at Lampedusa (2005-2008) Year

N. Events

Men

Women

Minors

Total

2005

154

12,557

467

831

14,855

2006

341

16,213

886

997

18,096

2007

270

9,759

835

1,155

11,749

2008

397

24,810

3,522

2,326

30,657

SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on data of the Ministry of Interior

The control of the external borders shall be accompanied by actions of internal control in order to detect the irregulars already present on territory, or the immigrants who entered however 28

To be noted, among others: EMN Italy (Ammendola C., Forti O., Pittau F., Ricci A.), Reception structures and social conditions of asylum applicants within the Italian reception System, Idos, Rome, 2005; Acquasana Leda, Centri di Permanenza Temporanea e Assistenza (CPTA): i nuovi “contenitori” dell’immigrazione, in “Studi Emigrazione”, no. 164, 2006, pgs 903-917; Ministry of Interior, Relazione della Commissione De Mistura, Rome, 2007.

15

Italy. The estimation of Ismu Foundation 29 at the beginning of 2008 reveals 650,000 irregular immigrants30 counted supposing that the number of irregular immigrants at 1st of January 2008 was around 90% of the persons who in April 2007 applied for the “flows decree” (decreto flussi). Among the main nationalities which registered the highest rates of irregularity we mention the Bangladeshis (52%), the Bolivians (42%), the Pakistanis (39%), the Indians (37%) and the Moldavians (34%). Among the normative provisions emanated in 2007 and intended to counteract black labor market we mention: - the establishment of a national steering committee for the coordination of territorial plans of emersion and promotion of the regular employment; - the creation of a special fund for the emersion of undeclared work (FELI); - the creation of correlation indicators reporting the quality of the services and products to the necessary amount of hours necessary for their production, in order to monitor if the company appeals to undeclared workers; - the increase of sanctions in the labour field and social legislation; - the extension in all the sectors of activity of the obligation to communicate a work contract a day before the worker starts the activity; - the strengthening of the inspective competences through improvement of the Police Department staff. According to an estimation of financial newspaper “Il Sole 24 Ore” the number of irregular domestic workers would vary between a minimum of 250,000 to a maximum of 900,000 units31 . The motivations that determine families to appeal to such types of assistance are various and encompass the poor capacity of the competent institutions to assure adequate and prompt responses at the demands of the families, the bureaucratic difficulties in the regularization of work activities or family savings‟ needs: by “employing” irregular workers they avoid to pay contributions, holidays, the 13 th salary and the termination indemnity. A Censis Foundation research32 for the Ministry of Labor and Social Affairs confirms the increase of irregular work in the sector of services, with a continuous increasing rate of irregular workers. Besides, in the domestic sector prevail women. According to an IREF research33 on a sample of circa 1,000 domestic workers of 66 different nationalities - database provided by INPS (National Institute for Social Welfare) Observatory on domestic work - women represent 84% of the sample. The average age is 40 and regarding the area of origin seems to prevail East Europe, especially for the youngest (under 36 years old) or the former Russian Federation, especially for the oldest. Other relevant areas are those of Asia (16%), Central and South America (14%) and Africa. The Philippine presence, according to the cited study, is strongly decreasing, dropping from 31% in 1997 to 10% in 2006. Among the recruitment methods prevails the informal and personal network (acquaintances-relatives), as showed in the research carried out by Cergas of Bocconi University of Milano34. According to the results of the annual report of the International Labor Organization of the United Nations (ILO), the working conditions of the immigrants are very difficult,

29

ISMU Foundation, Quattordicesimo rapporto sulle migrazioni 2008, Franco Angeli, Milan, 2009. For a complete analysis on irregular immigration in Italy see: EMN Italy (Ammendola C., Forti O., Pittau F., Ricci A.), Irregular immigration in Italy, IDOS, Rome, 2007. 31 La Groia Alessia, Frusone Roberto, I lavoratori domestici e le iniziative per l’emersione, in INPS, Dossier statistico Immigrazione Caritas / Migrantes, Diversità culturale, identità di tutela. III Rapporto su immigrati e previdenza negli archivi INPS, Rome, April 2009. 32 Censis Foundation, Un nuovo ciclo di sommerso, Rome, 2005. 33 Educational and Formative Research Institute of ACLI (Christian Association of Italian Workers), Il welfare fatto in casa, Rome, April 2007. 34 Cergas/Università Bocconi di Milano, Le convenienze nascoste dell’assistenza agli anziani, Nuova Dimensione, Venice, 2006. 30

16

particularly for the irregular ones35. This situation is reflected in the difficult conditions of detention for the irregular immigrants who are waiting for return, in the long work programme and low salaries whose payment is often delayed, in the deduction by the employers of the paypacket in change of accommodation, which often lacks the decent living conditions (electricity and running water). As shown in the CARIM study on the social integration of the immigrants, on the migration and population‟s movement 36, run by Robert Schuman Centre, in collaboration with the European University, and co-financed by the European Union through AENEAS programme, the South and East Mediterranean countries deal with significant migration flows, which make difficult the complete integration of the immigrants. It appears therefore that in these countries a great number of immigrants are irregular. According to this study the irregular immigrants must not be considered a monolithic group, but they should rather be divided in three categories: economic migrants, refugees and transit migrants. The economic migrants fulfill the requests of the labor market, but informally, entering the black market, often because they lack the documents required for the residence; the refugees, instead, are motivated by the search of the personal safety and enter the category of irregular immigrants when they overstay on the territory even though their asylum application had been rejected; and, in the end, the transit migrants are in the territory only temporarily or not by their choice, since their intention is to reach another destination. Despite the various categories of irregular immigrants, the study conducted by CARIM reveals a very homogenous behavior among foreigners in irregular situation due to two reasons: (1) being irregular immigrant implies a tension between the will of transferring to a country that is not his own and the reluctance and the impossibility of the country of destination to receive and integrate them; (2) irregular immigrants have a precarious position in the local reality, in terms of access to the labor market and welfare. Another typology of irregular migrants is provided by a study on immigrants in Italy 37 conducted by the Ministry of Interior in December 2007. In this case as well, irregular migrations shouldn‟t be considered a homogeneous phenomenon but there are to be identified various categories: - the overstayers, or those who enter the territory legally but who remain longer than they have been allowed to by their specific status; - the irregular immigrants, or those who enter a country irregularly, either hidden or with fake entry or residence documents; - trafficking victims, or those who enter the territory by actions of human trafficking organizations. Many evidences lead to the idea that the condition of irregular immigrant is not structural, but rather a kind of preliminary stage for the regularity. Two elements come to confirm this supposition: on one hand the high percent of regulated immigrants among the regular immigrant population of Italy, on the other hand the strong decrease of the irregular dimension during the months following after the adoption of an immigration amnesty. The same study underlines that irregularity is not a characteristic homogeneously spread among the foreign population but varies much depending on nationality. The nationalities with an old presence in Italy have a low percentage of irregulars (Sri Lanka, China, Philippine, Albania, India, Pakistan, Morocco, Senegal, Tunisia) in comparison with the nationalities of recent immigration (Ukraine and Romania until 2006).

35

International Labour Organization, World of Works. Report 2008, Geneva, 2009. Fargues Philippe, Irregularity as Normality among Immigrants in South and East of the Mediterranean, EUI Background Paper, Florence, 2009. 37 Ministry of Interior, Primo Rapporto sugli immigrati in Italia, Rome, December 2007. 36

17

An interesting study conducted by the University of Bari 38 correlates the status of irregularity with the behavior of the immigrants who return in their countries, with their propensity to reintegrate and, therefore, with the sustainability of the return. The situation of irregularity compromises migrant‟s possibility to use entirely his own human capital and in the same time affects the possibility of access to various markets and institutions in the country of destination, generating first of all a skill waste and a diminishing of recompenses for migrant‟s human capital and of his savings, obvious especially among the most educated and qualified immigrants. In strong contradiction with the conclusions regarding the experiences of the regular return migrants, which sustain that return migration is more likely among the less educated and qualified immigrants, the results of the above mentioned study demonstrate, on the contrary, that the most qualified immigrants are more likely to return in the country of origins.

Assisted Voluntary Return The Italian legislation provides assisted voluntary return measures for specific of foreigners, such as: a) the asylum applicants, the refugees, those who renounced to the asylum application as well as those whose refugee status was denied, the owners of a temporary protection permit, the displaced persons for humanitarian emergencies; b) the trafficking victims, the humanitarian cases, the non-accompanied minors and the workers in difficulty. These measures exclude the irregular immigrants, who should be subjects to sanctions provided by the so-called “Immigration Consolidated Text” (Testo Unico sull’immigrazione). The return provisions concern exclusively the non EU foreigners, except for the special cases of the EU separated children whose return shall be implemented in the best interest of the child and according to the provisions of the Convention on the Rights of the Child. The total number of beneficiaries of the voluntary assisted return is given by the gathering of several programmes involving various categories of migrants. The different periods of each project, which do not always correspond to the calendar year and which are often extended, make difficult but not impossible the elaboration of a global framework. ITALY. Beneficiaries of the assisted voluntary return since 1991 until 2009 Period Motive

a.v.

Since 1991 until 2001

Humanitarian emergencies

5,252

67.5

Since 2001 until 2009 Since 1999 until 2009 Since 1992 until 2009

Asylum applicants Trafficking victims Humanitarian cases/foreigners in difficulties

990 526 1,010

12.7 6.8 13.0

Since 1991 until 2009 Total Assisted Voluntary Returns 7,778 SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on IOM data, July 2009

100.0

%

The total number of assisted returns since 1991 until 2009 has been of 7,778 cases. Until 2001 the majority of the assisted cases had to do with the humanitarian emergencies in the Balkans of the early 90‟s and in Kosovo at the beginning of 2000, for which 5,252 migrants have been assisted. Since 2001 until 2009 there have been 990 cases of assisted cases of asylum applicants, refugees and owners of a temporary protection permit, equal to 12.7% of the total number of beneficiaries. To this we can add 526 cases of assistance for trafficking victims (equal 38

Chiuri Maria Concetta, Coniglio Nicola, Ferri Giovanni, L’esercito degli invisibili. Aspetti economici dell’immigrazione clandestina, Il Mulino, Bologna, 2007.

18

to 6,7%) and 1,010 humanitarian cases (equal to 13%) concerning 571 workers in difficulty assisted by the Return Fund managed since 1992 by the National Institute for Social Welfare (INPS), or mentally and terminally ill persons, disabled persons, victims of forced labor, women with dependent children. Since 2006 until 2009, instead, humanitarian emergencies cases is not significant in comparison with the humanitarian cases/foreigners in difficulty, which, in the same period, involved 347 beneficiaries, against 210 cases of asylum applicants and 203 cases of trafficking victims. Among the most represented five nationalities - even if the data on assisted return could not be divided according to nationalities – we find the Balkan countries (Albania with 38.5%, Kosovo with 14.3%, Serbia e Montenegro with 6.4% and Bosnia – Herzegovina with 5.1%), who benefited from most of the return programmes related to the landings emergency in the 90‟s. We add also Romania which is involved in most of the various assistance programmes, with 9.2% of the total number of beneficiaries. ITALY. The cases of assisted voluntary return related to the most representative nationalities (1991 - 2009)

Origin Emergences Albania 2,971 Kosovo 1,017 Romania Yugoslavia (Serbia-Montenegro) 451 Bosnia-Herzegovina 294 Nigeria Macedonia (Former Yug. Rep. Of) Turkey Russian Federation Ukraine Moldova Bulgaria Thailand Lebanon Poland Afghanistan Colombia Azerbaijan Libya Slovakia Balkans 515 Other countries Non breakdown data 4 Total 5,252

Asylum Trafficking 4 18 97 348 238 37 6 103 1 11 76 75 1 60 38 7 5 35 33 2 38 15 27 8 12 12 14 7 5 134 45 4 990 526

Humanitarian cases 3 128 53 1 7 14 8 5 4 1 1 3 2 153 627 1,010

Total 2,996 1,114 714 494 398 140 76 61 52 54 41 45 15 27 12 13 13 14 10 7 515 332 635 7,778

% 38.5 14.3 9.2 6.4 5.1 1.8 1.0 0.8 0.7 0.7 0.5 0.6 0.2 0.3 0.2 0.2 0.2 0.2 0.1 0.1 6.6 4.3 8.2 100.0

SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on IOM data, July 2009

a) Humanitarian emergencies and asylum applicants As an important historical experience, we must mention that, during the nineties, Italy has been involved in a wave of immigration from the Balkans originated by a strong socio-political instability, which was handled by receiving, at least temporarily 5,252 migrants for humanitarian reasons. This wave was followed by another flow, planned and assisted by the Italian govern through projects of assisted voluntary return, when the situation in the country of origin turned safe again39. 39

See: EMN Italy (Ammendola C., Pittau F., Ricci A.), Return migration: the Italian case, Idos, Rome, 2007.

19

The lack of a complete reception system and structured actions of assisted voluntary return for unsuccessful asylum applicants, for Dublin Convention cases and for holders of permits for humanitarian reasons40 led to the elaboration of the National Programme for Asylum (PNA), born out of the collaboration between the Ministry of Interior, the United Nations High Commissioner for Refugees (UNHCR) and the National Association of the Italian Municipalities (ANCI). The aim was to create a reception network for these subjects. The experience of the PNA has been capitalized and integrated within the Protection System for Asylum Applicants and Refugees (SPRAR), instituted by Law no. 189/2002, whose coordination has been entrusted by the Ministry of Interior to ANCI. One of SPRAR tasks is to promote and provide actions of assisted return implemented with the logistical support of the International Organization for Migrations (IOM) which operates on three levels: production of informative material; information dissemination; direct assistance for return and reintegration procedures. The reception system has a polycentric character thanks to the direct engagement of the local agents who facilitate the socio-economic integration of the beneficiaries. In 2007, SPRAR assisted 6,284 persons, 15% more than the previous year. The projects managed by SPRAR are granted by the National Fund for Asylum Policies and Services (Fnpsa), instituted by the abovementioned Law no. 189/2002. Until 2008, its basic budget was of 5.16 millions euro, supplemented with allocations that vary depending on the financial laws of every year. Until 2007, in Fnspa had merged the European Fund for the Refugee (Fer) intended for financing projects addressed exclusively to vulnerable categories. But the Fer III, provided by Decision 573/2007/CE for the period 2008-2013, will operate in an autonomous way. ITALY. Beneficiaries of assisted voluntary return through PNA/SPRAR programmes (2001–2009) Period of reference

Project

Total

6/2001-12/2001

PNA

103

4/2002-1/2003

PNA

91

2/2003-11/2003

PNA

69

12/2003-1/2004

SPRAR

39

2/2004-12/2004

SPRAR

187

6/2004-10/2005

SPRAR/Integrative Measures (Romania)

119

1/2005-12/2005

SPRAR

172

7/2006-6/2007

SPRAR

78

7/2007-12/2007

SPRAR

50

1/2008-2/2009

SPRAR

63

3/2009-21/4/2009 *

SPRAR

19

Total

PNA/SPRAR

990

*Provisional data PNA = National Programme for Asylum; SPRAR = Protection System for Asylum Applicants and Refugees SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on IOM data

40

See: Ministry of Interior, Vademecum per richiedenti protezione internazionale, Rome, 2009; Boca Caterina, Aspetti rilevanti della nuova procedura di protezione internazionale, in “Gli Stranieri”, XV, no. 2, March-April 2008, pgs 109-115. For the juridical procedure of appeal against the decisions of asylum, the so called “Security Law” (Law no. 94/2009) provided to the Ministry of Interior as well the possibility of appeal against the sentence. Therefore, some of the current competences of the National Commission for Asylum Right are transferred to the Ministry of Interior which activates them through the same Commission.

20

During the first decade of activity, SPRAR and the previous PNA assisted 990 beneficiaries, of which 688 during the last five years (2004–2009). Sometimes, due to bureaucratic problems, the return actions have been delayed. Therefore, especially in the first years of activity, the available data do not cover the whole year. More than three quarters of the beneficiaries are asylum applicants who renounced to their application, followed by holders of a permit for humanitarian protection. Among the countries of origin of the beneficiaries, prevails Romania with 35.2% of the total of assisted persons, followed again by the Balkan countries: Bosnia-Herzegovina with 10.4%, Kosovo with 9.8%, Macedonia with 7.6% and Serbia Montenegro with 3.7%. Other nationalities that follow in this hierarchy are: Turkey, the Russian Federation, Lebanon and Iraq. It‟s obvious that the assisted voluntary return prevails in those countries where the economic and political stability is reconsolidating, which is a precondition for the migrants choice to return. In particular, the improving situation of Iraq has changed the country‟s position in the hierarchy of the most represented nationalities (from the 15 th to the 9th position). On the contrary, the countries still affected by war like Eritrea, Somalia or Sudan do not provide safe conditions for an eventual return. ITALY. Beneficiaries’ nationalities of assisted voluntary return by PNA/SPRAR programmes (2001-2009) Assisted Countries persons % 1 Romania 348 35.2 2 Bosnia Herzegovina 3 Kosovo 4 Macedonia

103 97 75

10.4 9.8 7.6

Turkey Russian Federation Serbia Montenegro Lebanon

60 38 37 27

6.1 3.8 3.7 2.7

9 Iraq 10 Sudan 11 Azerbaijan 12 Afghanistan 13 Colombia 14 Nigeria 15 Armenia 16 Iran 17 Libya 18 Croatia 19 Congo Dem. Rep.

24 17 14 12 12 11 9 7 7 6 5

2.4 1.7 1.4 1.2 1.2 1.1 0.9 0.7 0.7 0.6 0.5

5

0.5

5 71

0.5 7.2

990

100.0

5 6 7 8

20 Sri Lanka 21 Ukraine Other Countries Total

SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on IOM data

b) Trafficking victims and humanitarian cases 21

The estimations reveal around 2.5 millions of victims of trafficking for sexual purposes, of which at least 500,000 only in Europe. The victims who reached Italy are estimated around 29,000–38,000 persons. The possibility of assisted voluntary return for this category of migrants dates back to 1999 when a first specific programme financed by the Ministry of Foreign Affairs was launched. It involved 21 immigrants, especially Albanian women and children and during the period extended until 2001, other 35 persons returned to Romania, Moldova, Ukraine, Bosnia Herzegovina, Serbia Montenegro and Lithuania. A second project followed to this one and it was addressed to the Nigerian trafficking victims in Italy. The positive impact of these initiatives, intended for assisting the return of trafficking victims from specific geographic areas, found echo in an annual specific programme dedicated to this category of migrants, within “Azione di Sistema” at the initiative of the Ministry of Interior and financed by the inter-ministerial Commission within the Department of Equal Opportunities at the Prime Minister‟s office. The normative regulations regarding the projects of assisted voluntary return may be found in the Art. 18 of the Consolidated Text on Immigration (Law no. 286/98) which provides for a special treatment for the victims who decide to escape from exploitation and denounce it, granting them a residence permit for social protection of six months and the possibility to participate at special programmes for integration and/or benefit from assisted voluntary return.

ITALY. Beneficiaries of assisted voluntary return for trafficking victims (1999-2009) Period 7/1999–10/2000 Year 2000 8/2000-2/2001 7/2001–6/2002 (9/2002) 4/2003–3/2004 3/2004-7/2005 8/2005-7/2006 (12/2006) 1/2007-10/2008 (6/2009) Total (1999-2009)

Funding Ministry of Foreign Affairs (to Albania) Ministry of Foreign Affairs (to Balkans) Ministry of Foreign Affairs (to Nigeria) I Year “Azione di sistema”/Equal Opportunities Dept II Year “Azione di sistema”/Equal Opportunities Dept III Year “Azione di sistema”/Equal Opportunities Dept IV Year “Azione di sistema”/Equal Opportunities Dept Ministry of Foreign Affairs Ministry of Foreign Affairs / Equal Opportunities Dept.

Nr 21 35 28 80 80 78 91 113 526

SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on IOM data

Since 1999 until 2009 526 victims of trafficking were assisted on their return. In the last year of Azione di Sistema (2005-2006), as in the following international cooperation programmes financed by the Ministry of Foreign Affairs, next to the trafficking victims there have been assisted the so called “humanitarian cases” which concern, among others: mentally and terminal ill persons, disabled persons, victims of forced labor, single mothers and their dependent children. The two mentioned programmes provided assistance for 298 humanitarian cases, of which almost one third (31.5%) had Romanian nationality41. Between 1999 and 2009, among all trafficking victims and humanitarian cases assisted through international cooperation programmes and projects financed by “Azione di sistema”, 824 were migrants. Among most represented nationalities we count 332 Romanians (more than 40%), 92 Nigerians, 47 Ukrainians, 42 Bulgarians and 40 Moldavians. The so called “vulnerable groups” benefit from other two programmes financed by National Institute for Social Welfare (Inps) Return Fund and by UNRRA fund. The first one is 41

See: Statistical appendix, infra.

22

addressed to the workers in difficulty as guaranteed by Law no. 943/1986. The article 13 of this Law institutes the Return Fund to which the workers themselves contribute monthly with 0.5% of their paycheck. The Fund, still active today, no longer gets any tax revenues because of the abolition of the special tax by Law no. 286/98. 571 persons (among them 385 were corpses of workers deceased in Italy) benefited from assistance for voluntary return through this Fund. Finally, in 2006, the Ministry of Interior allocated a part of the Lira Fund UNRRA (United Nations Relief and Rehabilitation Administration) for the assisted voluntary return of the foreigners who lacked necessary economic means. The project concerned 106 foreigners in difficulty.

ITALY. Beneficiaries of assisted voluntary return for trafficking victims and humanitarian cases (1999-2009) Country Romania Nigeria Ukraine Bulgaria Moldova Brazil Albania Thailand India Morocco Other countries TOTAL

Beneficiaries 332 92 47 42 40 28 20 15 14 13 181 824

% 40.3 11.2 5.7 5.1 4.9 3.4 2.4 1.8 17 1.6 22.0 100.0

SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on IOM data

c)

Unaccompanied foreign minors

The assisted return of the unaccompanied children follows a special procedure according to ad hoc agreements and conventions between the Italian administration and some NGO‟s, as defined by Art. 3 of the Law Decree no. 286 of July 199842. With this Decree was instituted a Committee for Foreign Minors43. Among its duties, settled by Decree of the President of the Ministry Council no. 535 of 9th December 1999, there are: monitoring foreign unaccompanied children‟s presence in Italy, searching the relatives of the minors in Italy or in the country of origin, receiving them in appropriate structures, reporting and assisting the ones who fulfill the conditions for assisted return. According to the legislation in force (Art. 19 (2a) of the “Consolidated Text”) the expulsion of the minor under 18 years old is forbidden unless for reasons of public order and Security of the State or for following the parent or the foster parent who is to be expelled. Still, a decision of assisted return may be adopted by the Committee for Foreign Minors, which shall meet the conditions required by the rights of the minor, guaranteed by international conventions, for the respect and the integrity of the psychosocial conditions of the child. Whenever the return 42

For further information, see: EMN Italy (Pittau F., Ricci A., Timsa L.I.), Reception, return and integration process for, and number of, unaccompanied minors in Italy, Idos, Rome, 2009. 43 The Committee for Foreign Minors encompasses representatives of the Ministries of Foreign Affairs, Interior, and, the Department for Social Affairs at the Prime Minister‟s Office, as well as representatives of the National Association of Italian Municipalities (ANCI), a representative of the Union of Italian Provinces (UPI) and two representatives organizations majorly involved in the field of family problems.

23

might assume risks for the minor, or when his relatives could not be tracked down or whose inadequate behavior would discouraged reunification, it will be taken a “no suit” decision. The large flow of irregular non EU immigrants that entered the Italian territory encompassed more and more unaccompanied minors who require maximum attention and protection by the national law. The results of the research on foreign unaccompanied minors, ordered by the Parliamentary Commission for Childhood show that the phenomenon concerned especially Lampedusa Island and the region of Sicily. The data provided by the Committee for Foreign Minors report the presence of 7,797 unaccompanied minors44, coming prevalently from South Africa and then West Africa. That‟s why the Ministry of Interior drew attention on the need to implement appropriate strategies, appealing at the Territorial Councils for immigration, creating, where is needed, a special section dedicated to the minors45. Since 2008, the possibility of access assisted voluntary return programmes was extended to Romanian unaccompanied minors as well – thanks to an agreement which entered into force in the same year, 12 th of October – and then, with the recent so called “Security Law” (Law no. 94/2009), to all the unaccompanied minors citizens of the European Union. Until 2006, indeed the Romanians prevailed among the foreign unaccompanied minors, representing the majority, and had registered a significant increase from 6% on 2001 up to 22% in 2006. Therefore, in October 2007 has been created the Central Body of Unification (Organismo Centrale di Raccordo – OCR), for the protection of the EU unaccompanied minors, at the Ministry of Interior‟s Office, having among duties assuring the protection of the unaccompanied minors in Italy, implementing the Italian-Romanian Agreement and evaluating the assisted return projects in the countries of origin. The application of the Italian-Romanian Agreement concerns children under 18 years old who: - entered in Italy without being accompanied by one of the parents, neither by the guardian, nor by the person who could prove to be the foster parent; - who are in the situation of unaccompanied minors; - who no longer benefit from assistance of the guardian or foster parent, because of negligence or serious carelessness noticed and recognized by the Italian competent authority, or because of the risk situation which would undermine the psycho-physical, moral and social development of the child . As for the procedure, all information regarding each unaccompanied minor used during the process of identification and return are registered in the “Minor‟s informative file” which represents the main knowledge instrument regarding the minor and allows monitoring the socioeducational project. The presence of Romanian unaccompanied minors is handled along five phases: finding and identifying the minor; reporting the minor; entrusting the minor to a reception structure; managing the return programme; post-return monitoring.

44

This data do not include the minors asylum applicants, trafficking victims and minors citizens of EU countries. For further information on the protection of the non accompanied minors asylum applicants, see: Ammendola Carmelita Fortunata, La protezione dei minori richiedenti asilo e l’azione del ministero dell’interno: attuale disciplina e prospettive evolutive, in “Gli Stranieri”, XV, no. 1, Jan-Feb 2008, pgs 1-19. There is to be noted a particularly a directive of the Ministry of Interior entered into force in 7th of March 2007 which allows the unaccompanied minors asylum applicants to benefit from the services offered by SPRAR, without any distinction with respect to temporal expression of intention to apply for asylum. Therefore the number of minors registered by SPRAR increased from 31 at the beginning of 2007 to 295 by the end of December 2007. Most of them are boys (96% of them are male) from Afghanistan (54%), Somalia (12%) and Eritrea (10%). 45 For further information on the role and the function fo Territorial Council within the national migration polizie, see: EMN Italy (Callia R., Pittau F., Ricci A.), Organization of migration and asylum policies in Italy, Idos, Rome, 2009.

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3. The politic and legal framework

3.1. National overview

In the attempt to find a balance between integration and control, the “Consolidated Text on Immigration” (Law no. 286/98) knew various reform proposals46 which inclined towards one or the other aspect of the dichotomy integration-control. The theme of the return has raised strong debates regarding the contradiction, confirmed by data, between the increasing number of persons with a removal provision and the little number of effective removals. The main reason for which this happens is the difficulty to identify the nationality of the immigrants in order to proceed for return. a) The need for a balance between contrast and integration The actual migration policy promotes the efficacy of the return by actions of counteracting irregular immigration and through a “strict” sanction system 47. Following the orientation of Law no. 189 of 30th July 2002 (the so-called “Bossi-Fini Law”), the main feature of the migration policy in Italy - promoted within various measures intended for the protection of the national security and vulnerable persons - is counteracting irregular immigration, either if already present in the territory or potential at the border. The changes regard various aspects of the migration policies in relation with both the right to immigration (the complex of norms and procedures on the management of migration flows) and the right to integration (the extension of the citizens‟ rights to the immigrants as well). Within the Consolidated Text the “integration” is defined as “the process intended to promote the cohabitation of both Italian and foreign citizens, in compliance with the values of the Italian Constitution, with the mutual commitment to participate in the economic, social and cultural life of the society”. In the same time an integration agreement is settled, establishing that the foreign national must subscribe to the release of the residence permit (which becomes a sort of point-based system permit) The awareness of the creation of areas of irregularity determined different governments, since the eighties until 2009, to use widely the instrument of regularization (recently, in September 2009 the regularization of domestic workers and caregivers was issued) and to focus on the annual flow decrees. Since the last one, also due to the introduction of the crime of irregularity (provided by norms enacted in the “Security Law”), there is no possibility for the immigrants who have not been regulated to become regulars and, on the contrary to the administrative expulsion decree is added the penal character of the irregular residence crime. The status of irregular immigrant is therefore an aggravating case in every kind of crime committed by individuals. The Security Law abolishes the exception currently active which exempts the foreign national from the obligation to show the valid residence permit for actions related to civil status – for example marriage, birth registration, paternity recognition,

46

Ministry of Interior, La riforma del testo unico sull’immigrazione, Rome, 2007. Regarding the modifications underwent by “Security Law” (pacchetto sicurezza) see also: VV.AA., “Decreto sicurezza”: tutte le novità, IPSOA, Milan, 2008; Renoldi Carlo, Savio Guido, Legge 125/2008: ricadute delle misure a tutela della sicurezza pubblica sulla condizione giuridica dei migranti, in “Diritto, Immigrazione e Cittadinanza”, 3/2008, pgs 24-43; Il Sole 24 Ore, Immigrazione, dal “permesso a punti” per gli stranieri al reato di clandestinità, in www.ilsole24ore.com, 14th May 2009. 47

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citizenship, registration of death. In the same time, the obligation to show the documents for actions regarding the access to health care and educational services should be kept out. There should be a combination between both counteracting and stimulating measures not only for a major efficacy but also in the name of the re-socializing function of the sanction, as provided by the Constitution 48. The promotion of the legal ways regarding both phases of entry and stay contains in fact a pedagogic potential of promoting legality and in the same time a stimulus for the integration of the already present immigrants. b) Forced return: political and legal aspects The forced return ignores the choice of the single migrant and results as the consequence of an expulsion measure disposed by the competent authority. The motivation that stands for an authoritative action is related to the State prerogative to defend the public order and security of the State and to counteract irregular immigration as well. The forced return combined with various other measures of territory control follows, within the migration policy, the objective of discouraging irregular immigration and emphasizes the determination of the government to counteract irregular immigration. Nevertheless, the measures adopted require a full compliance with the national, regional and international standards of the protection of human rights. The Italian legislation on forced return is regulated in the “Consolidated Text on immigration” which, especially by the modifications introduced, settles various typologies and patterns of implementation 49. The rejection is made at the border for those foreigners who do not fulfill the conditions required by the law when entering the territory of the State. Moreover, the order provided by the Chief of Police may be applied to foreigners who escape border controls, who are stopped at the entrance or immediately after, or to those who, even without fulfilling the conditions required for the entrance, are temporarily admitted on the territory for reasons of public aid (Art. 10). The expulsion represents, instead, the measure taken for removing a foreigner from Italian territory or for forbidding him to come back for a certain period of time. Expulsion may be implemented in various modalities, extended by the recent legislative actions: - administrative expulsion ordered by the Ministry of Interior, for reasons of public order and security of the State; - administrative expulsion ordered by the Prefect, whenever the foreigner (a) entered irregularly the Italian territory escaping border controls and has not been rejected; (b) remained irregularly on the territory without a valid residence permit, or with a permit expired for more than sixty days without having required the renewal; (c) is considered as belonging to dangerous categories, as defined by the law (persons who are habitually involved in criminal actions or suspected to belong to criminal associations) or for reasons of prevention of the terrorism; (d) did not respect the integration contract signed at entrance, or when he lost all available integration points50; - expulsion as a security measure ordered by the judge for the foreigner who has been condemned for one or more crimes stipulated in the Penal Procedure Code whenever it is considered socially dangerous; - expulsion as a substitute sanction for the detention ordered by the judge when the foreigner is condemned (a) to imprisonment for more than two years; (b) to a restrictive sanction 48

EMN Italy (Ammendola C., Pittau F., Ricci A.), Migrazioni di ritorno: il caso italiano, Idos, Rome, 2006. Nascimbene Bruno, Country Report Italy, in European Parliament, “Refugee Status in EU Member States and Return Policies, Strasbourg, 2005; Degl‟Innocenti Leonardo (edited by), Stranieri irregolari e diritto penale, Giuffrè Editore, Milan, 2008. 50 The criteria and the modalities to define the procedure of Agreement signature and its credits‟ structure are to be decided by a next law, at the proposal of the Prima Minister and Ministry of Interior, in agreement with the Ministry of Education, University and Research and the Ministry of Labor, Health and Social Affairs 49

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regarding his personal freedom for crimes against the personality of the State 51; (c) for the crime of irregular entry and residence. Under no circumstance can be provided expulsion or rejection towards States where the foreigner risks to be subject to persecution for reasons of race, gender, language, citizenship, religion, political opinions, personal or social conditions, or where risks to be sent to another State where is not protected against persecution. Except for the expulsion disposed by the Minister, the prohibition is extended also to the foreigners: - minors under 18 years old, except for the right to follow the expelled parent or foster parent; - holder of the long residence permit and not belonging to the category of dangerous persons; - living with parents up to the second grade and/or with a partner/spouse of Italian nationality52; - pregnant women or women who did not exceed six consecutive months from the birth of the child. The prohibition of re-entry on the Italian territory is extended from five to ten years, and in case of non compliance with the re-entry order, the sanction goes from one to four years (or even five if recurrent). The non-compliance with the order of expulsion encompasses two cases: - the first one, more grave, considered crime when the violation is made by those who had been expelled for irregular entry, for not declaring their presence on the territory of the state within the legal term, except for cases of force majeure, or for the withdrawal or annulment of the permit, case in which the sanction goes from one to 4 years, or even five if recurrent; - the second, considered a contravention when the foreigner has been expelled for having the residence permit expired for more than sixty days, for refusing to request the residence permit, or for not declaring the stay in the case of foreigners non EU citizens who intend to stay in Italy for short periods (or the postponing of the stay for more than 3 months), case in which the sanction goes from six months to one year, or from one to four years if recurrent. In both cases a new provision of expulsion is adopted and it implies the immediate accompaniment at the border. The expulsion is disposed by a motivated decree with immediate execution, even if it is possible to be challenged. When the foreigner is subject to criminal proceedings and is not imprisoned under police custody, the Chief of Police, before ordering expulsion, requests the authorization of the juridical authority. This request can be denied for procedural reasons or on behalf of the injured person and in this case the expulsion order is suspended until the juridical authority has communicated the end of procedural requirements. In case the juridical authority does not decide within the following seven days from the date when the request was received the authorization is considered as granted. Meanwhile, the Chief of Police may provide for the detention of the foreigner in a Centre of Identification and Expulsion. When providing for administrative expulsion of the foreigner who exercised the right to family reunification, or of the foreigner who has been rejoined, it‟s important to take into consideration the nature and the actuality of the family bounds of the migrant concerned, the period of his stay on the national territory as well as the existence of family, cultural and social ties with the country of origin. Whenever the foreigner subject to criminal proceedings has been expelled, the judge obtains the proof of expulsion disposed and provides for a “non suit” decision. The expulsion is always executed by the Chief of Police, with Police accompaniment at the border, except when the foreigner remained in Italy for more than 60 days after the expiry of the residence permit, without requesting the renewal. In this case the foreigner receives a notice to leave the country within fifteen days. Still, in case the Prefect considers that the non execution of the provision might represent a real danger, the Chief of Police provides for immediate accompaniment at the border. 51

Law no. 125/08 extends such cases to the EU citizens as well. The degree of kinship with the partner Italian citizen that forbids expulsion has been reduced from 4 th to 2nd grade with the approval of “Security Law” (Law no. 94/2009). 52

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The migrant concerned must be communicated the expulsion decree as well as the possibilities of impugnation and must be given a translation in one of the languages spoken by him (or, when not possible, in French, English or Spanish). Against the expulsion decree, the migrant may only appeal to the Judge of Peace from the locality of the authority that ordered expulsion and has to do it within sixty days from the provision date. The Court of jurisdiction is the Judge of Peace who accepts or rejects the appeal, taking a decision within twenty days from the appeal date. When implementing forced return two types of barriers might occur: one regarding juridical matters and the other regarding logistic. In the first case, forced return can be forbidden by international and national norms for certain categories of migrants who may appeal to the right of asylum or who meet the condition of vulnerable persons. The Consolidated Text protects, in the Art. 19, the foreigner who finds himself on Italian territory and who, in case of expulsion or rejection towards a particular State, may risks to be subject of persecution for reasons of race, gender, language, citizenship, religion, political opinions, personal or social conditions, or where risks to be sent to another State where lacks protection against persecution. The expulsion ban is extended also to minors under 18 years old (except for the right to follow the parent or the foster parent who holds an expulsion order), to holders of a long residence permit, to foreigners living with relatives up to the second grade and/or with a partner/spouse of Italian nationality or to pregnant women or women who did not exceed six months consecutively from the birth of the child they take care of. Among the major logistic obstacles to forced return we mention the difficulties in identifying the migrants, the organization of the return trip (the availability of documents and suitable transport means), the necessity to give aid to the foreigner as well as the lack of cooperation with the countries of origin. Migrant‟s identification plays an important role in the process of deciding to which state he will return and, therefore, it proves to be absolutely necessary for the execution of forced return. These are the reasons that often explain the discrepancy between the number of expulsion measures taken and the number of migrants effectively expelled, since expulsion cannot be made immediately. Precisely for permitting the execution of the expulsion provisions, there have been created the Centres for Identification and Expulsion intended for the detention of foreigners whose expulsion is not immediately executable. The “Centres for Identification and Expulsion” are in fact the former “Temporary Residence Centres” as denominated by Law no. 125 of 2008; this linguistic modification stands for the new philosophy of the government, focused on the concreteness of the immigration control 53. In these cases the Chief of Police requires the detention of the foreigner in a Centre of Identification and Expulsion, for the time that is strictly necessary and, within 48 hours, he sends the expulsion decision to the Judge of Peace competent for the case in terms of territory (Art. 14, Consolidated Text). After an audience with the applicant, within the following 48 hours, the judge validates the expulsion measure by a motivated decree, which implies that the applicant is allowed to stay in the Centre for a period of maximum 30 days. Supposing that by the end of this period the obstacles for expulsion have not been overcome, the period may be extended, by request of the Chief of Police, to the following 30 days. The most recent legislative actions of 2009 provide that the period of detention may undergo other two extensions for a total maximum period of 180 days, being understood that the chief of Police may execute the expulsion even before the expiry of the detention period, when certain conditions occur: - the first extension of sixty days requested to the Judge of Peace by the Chief of Police for reasons of non-cooperation to the return of the concerned third country national or delays in obtaining the requested documentation from the third countries; - the second extension of the following sixty days requested to the Judge of Peace by the Chief 53

VV.AA., “Decreto sicurezza”: tutte le novità, IPSOA, Milan, 2008.

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of Police whenever the expulsion cannot be executed because of prohibitive conditions, although all the reasonable efforts have been made. ITALY. Centres of First Reception (CDA), Reception Centres for Asylum Applicants (CARA), Centres for Identification and Expulsion (CIE) City Number of places CDA Agrigento, Lampedusa (Reception and medical aid centre) 804 Bari Palese, airport area 744 Brindisi, Restinco 180 Cagliari, Elmas (Reception and medical aid centre) 200 Caltanissetta, Contrada Pian del Lago 360 Foggia, Borgo Mezzanone 342 Gorizia, Gradisca d‟Isonzo 112 Siracusa, Cassibile 200 Trapani, Pantelleria (Reception and medical aid centre) 25 Total CDA 2,967 CARA Caltanissetta, Contrada Pian del Lago Crotone, località Sant‟Anna Foggia, Borgo Mezzanone Gorizia, Gradisca d‟Isonzo Milano, via Corelli Trapani, Salina Grande Total CARA

96 256 198 150 20 260 980

CIE Bari, Palese, area aeroportuale Bologna, Caserma Chiarini Caltanissetta, Contrada Pian del Lago Catanzaro, Lamezia Terme Gorizia, Gradisca d‟Isonzo Milano, via Corelli Modena, località Sant‟Anna Roma, Ponte Galeria Turin, corso Brunelleschi Trapani, Serraino Vulpitta Total CIE Total CDA, CARA, CIE

196 95 96 72 136 84 60 300 90 31 1,160 5,107

SOURCE: EMN ITALY. Calculations on Ministry of Interior data

If, within this period, the expulsion with forced accompaniment at the border could not be executed, the foreigner is ordered by the Chief of Police to leave the territory within five days54. Although the extension of the detention period from 60 to 180 days raised strong debates in Parliament, it has been considered by the Italian government as a necessity especially because some countries of origin delay the transmission of the documents required by the expulsion procedures or allow only the return of a limited number of nationals at a time. The provision in question does not seem to contradict the EU Rights, especially in the light of Return Directive of 2008 which, in Art. 15 states that “each member State shall set a limited period of detention which may not exceed six months”. Therefore, in order to guarantee the reception capacity of the 54

In this case (not when it‟s possible detaining the foreigner in a Centre for Identification and Expulsion) the expulsion takes place through a notice to leave the national territory which, apart from providing information about the penal consequences in case of non-compliance, may be attached an useful documentation for contacting the offices of the diplomatic mission from foreigner‟s country in Italy. See: Senato, XVI Legislatura, Disegno di legge AS 733-B “Disposizioni in materia di sicurezza”, Servizio Studi, Rome, May 2009.

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actual reception system itself, it is necessary to increase the capacity of the abovementioned Centres. Anyway, the Italian normative provides that the detention in such Centres shall meet the necessary conditions in order to guarantee the respect of migrant‟s dignity and to assure the needed assistance, even if the foreigner is required not to go far away from the Centres. The subject is strongly debated at political level as well, especially due to the repeated accuses of malfunctioning and abuse brought by various organizations for human rights protection (such as Amnesty International, Emergency, Human Right Watch, UNHCR). This led, over the last months, to the demand for concrete actions of the Italian authorities. In 2007, the government had already created an ad-hoc commission for analyzing the situation, which drew attention to the critical situation of the Temporary Residence Centres at that time55. The report shows that the construction of these Centres costs 6 millions euro on average and its annual management 1,3 millions euro per year, while the system as a whole needs improvements regarding human rights and police forces‟ hardship. The recommendations regard a major use of the assisted return instrument by the irregular foreigners and their collaboration for implementing it. The CIE are available also for those who are subject of the expulsion measure and apply for asylum, supposing that the expulsion is not the result of irregular entry or irregular stay without having requested a residence permit 56, case in which the asylum applicants would be hosted in specific Reception Centres (CARA), for a period of 20-35 days. Thus, there are three different types of reception and assistance structures for irregular immigrants and asylum applicants: the Centres of First Reception (CDA), the Reception Centres for Asylum Applicants (CARA) and the Centres of Identification and Expulsion (CIE). The CDA play the role of first aid, therefore the reception in the Centre is limited to some first procedures of identification in order to send the foreigner in a specific Reception Centre for Asylum Applicants or in a Centre of Identification and Expulsion. The operational Centres manage to accommodate around 3,000 foreigners and they are located in areas with large migration flows, especially in border areas, such as Lampedusa, Bari and Foggia. The CIE, instead, are 10 and have an accommodation capacity of 1,160 places, while other structures are in phase of construction or extension. ITALY. Forced return with charter flights (1st Jan. 2009 – 30th Jun. 2009) Month June

May April

March

February

Nationalities Algeria, Morocco, Tunisia Nigeria Algeria, Morocco, Tunisia Algeria, Tunisia, Gambia Tunisia * Egypt, Algeria Morocco, Tunisia, Algeria Algeria, Egypt, Nigeria Tunisia, Morocco, Nigeria Tunisia * Tunisia, Egypt, Nigeria Tunisia, Algeria, Morocco Nigeria Tunisia, Algeria, Egypt Tunisia, Algeria Tunisia

Number 63 34 74 73 1 157 41 69 53 4 85 108 51 90 57 120 1,471

Total first semester 2009 *Expulsion ordered by the Ministry of Interior for reasons of national security. SOURCE: EMN ITALY. Calculations on Ministry of Interior data (press releases published on www.interno.it) 55

Ministero dell‟Interno, Relazione della Commissione De Mistura, Rome, 2007. D.Lgs 28th January 2008, no. 25, in implementation of the Directive 2005/85/EC on minimum norms regarding the procedures for granting of withdrawing the refuge status. 56

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Regarding the preparation for the return trip there are provided conventions with agents who offer transport and with international organizations engaged in assisting the foreigners. During the last year, the use of charter flights has been more and more recurrent. In the first semester of 2009, indeed, the number of repatriated foreigners had been of 1,471 persons, mostly Moroccans, Algerians and Nigerians. This data acquires significance if confronted with the fact that in 2008 have been repatriated a total of 1,199 foreigners via 38 charter flights. In 2007, 1,797 irregular immigrants have been subjects to forced return via 47 charter flights (with an average cost of 2,500,000 Euro), 5 of which organized jointly with other member states. Such results were possible also due to the intensification of links between the Italian government and the African northern coast countries, especially Egypt and Tunisia. The fact that made the government paying more and more attention to the effectiveness and promptness of forced return actions has been the obvious emergency at Lampedusa regarding the large irregular immigration flow coming by sea. The most used airports are the ones of Catania (especially towards Egypt), Rome (especially towards Nigeria) and Milan. Charter flights have been organized in collaboration with other member states as well, in order to carry out common actions for the return of migrants of the same nationality. An example of collaboration is the initiative of the European Agency for the Management of Operational Cooperation at the External Borders of EU (FRONTEX), which took charge of the costs of the return charter flight from Roma Fiumicino, transporting 51 Nigerians, 32 of which expelled from Italy, and 19 persons from other EU countries: 10 from Spain, 4 from Malta, 3 from France, one from Cyprus and 1 from Poland.

c) Assisted voluntary returns: normative aspects Initially, the assisted voluntary return, instituted by Law no. 286/98, was addressed to the trafficking victims. The following Law no. 189/2002, Art. 32, provided for the extension of the categories of beneficiaries including asylum applicants, refugees, holders of a residence permit for humanitarian cases, and ex Dublin Convention cases. Unfortunately, even if desired and strongly recommended by the European Union, there are no specific provisions for other immigrants among whom those in irregular situation. Moreover the immigrants with an expulsion decree cannot benefit from assisted voluntary return programme57. On the other hand, from assisted return can benefit also the EU minors who prostitute, whenever this is considered necessary for the best interest of the child, as provided by the Convention on the Rights of the Child of 20th November 1989, ratified by Italy with Law no. 176 of 27th May, 1981. The guidelines of assisted voluntary return programmes for the trafficking victims for sexual exploitation and forced labor are expressed in the additional Protocol to the ONU Convention on Transnational Organized Crime of 2000 (the so-called Palermo Convention). The text indeed contains explicit references regarding the commitment of the adherent states for facilitating the return of the trafficking victims to their own countries, assuring to them a safe and protected return. The Italian normative, starting with the Consolidated Text and the following Law no. 228/2003, defined trafficking as a severe crime, establishing, therefore, programmes for assisting the victims. For a limited period of time, since 1986 until 2000, a Return fund was active for the foreign workers with at least one contribution paid at National Institute for Social Pensions (Inps) 58. The fund sustained by a tax of the non EU worker representing 0.5% of his wage, does not provide indications regarding the procedures of accessing it and, in the same time, it excludes the worker‟s relatives from the category of beneficiaries. The remaining means of the Fund have 57

Ministry of Interior, Vademecum per richiedenti protezione internazionale, Rome, March 2009. INPS, in collaboration with Dossier Statistico Immigrazione Caritas / Migrantes, Regolarità, tutela. Il rapporto su immigrati e previdenza negli archivi Inps, Rome, 2007. 58

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been transferred to the National Fund for Migration Policy, intended to finance the annual and multiannual programmes of the state, regions, provinces and municipalities, for the reception and integration of immigrants59. In 2002, the National Fund for Migration Policy merged into the National Fund for Social Policy 60. In 2008, for example, the decree of the Ministry of Labor, Health and Social Policies regarding the allocation of Fund, does not mention specifically the share corresponding to the National Fund for Migration Policies, although in 2006 it did. The “Security Law” (Law no. 94/2009) institutes, in a new article, a Fund for returns within the Ministry of Interior intended to finance the costs of the foreign nationals return towards the countries of origin or provenance. This Fund is supplied with a half of contributes paid by the immigrants for the release and renewal of the residence permits and with contributes possibly allocated at EU level. The reference to the term “return” cannot be clearly interpreted as it is used for defining both forced and assisted voluntary return 61. Return migration, if voluntary, is determined by migrant‟s personal evaluation of the costs and the benefits implied by living in an emigration country or in the country of origin. The significant factors for the choice may incline towards one or the other of these two countries of reference, taking into account personal reasons as well. The combination of various reasons which encourage the return and migrants‟ tendency to continuously modify their own intentions, associated with the current conditions in the country of destination and origin require a global approach when analyzing the return62. Therefore, the scientific literature approaches the return in relation with the various categories of returnees: economic migrants, students, high skilled workers, businessmen, refugees 63. Among the factors that influence the choice to return we mention: - the lack of full integration in the host country; - the economic difficulties (loss of job and subsistence problems); - the strengthening of the restrictive policies and measures in the emigration country; - the evaluation of an eventual improvement of the politic and economic situation in the country of origin; - the accomplishment of the goals established at the beginning of the migratory project (economic reasons, having acquired the so-called “know how” and professional skills, the end of a work programme); - the family situation (decease of a relative, marriage, etc.); - the negative outcome of the asylum application; - the intention to transfer somebody‟s own activities and restart in the country of origin. The decision to emigrate is sometimes determined by an incomplete knowledge about the destination country, often influenced by rumours or by a collective imagination which may lead to an underestimation of the difficulties of integration in the economic system, the importance of speaking the language, acknowledgement procedures regarding qualifications abroad 64. All these may lead to the economic and social maladjustment of the migrant and may determine the wish/need to return in his own country. Another way of understanding return is considering it a component of the initial migratory project that comes after reaching specific objectives (of economic, social or professional character). 59

Ministry of Interior, Primo Rapporto sugli immigrati in Italia, Rome, December 2007. The National Fund for Social Policies has been created by the law on the reform of assistance (Law no. 328/2000) and represents the main financing national resource for actions of assistance to persons and families, immigrants included. 61 Servizio Studi del Senato, Disegno di legge A.S. n.733-B “Disposizioni in materia di sicurezza pubblica”, XVI Legislature, Rome, May 2009. 62 Dustmann Christian, Return Migration, Investment in Children, and Intergenerational Mobility: Comparing Sons of Foreign and Native Born Fathers, IZA, Discussion Paper no. 3080, Bonn, 2007. 63 Cassarino Jean-Pierre (edited by), Return Migrants to the Maghreb Countries: Reintegration and Development Challenges, EUI, Global Report Mirem, Florence, 2008. 64 OECD, International Migration Outlook 2008, Paris, 2008. 60

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One of the most recurrent reasons which determine the migrant to rely upon assisted voluntary return programmes is the denial of the refugee status. In this case the migrant has a limited time (15 days) to leave the country, therefore a significant relevance have the organizations engaged in assistance programmes. A similar situation regards the ex Dublin Convention cases, involving those asylum applicants returning to Italy as their first country of entry within the Schengen space and, therefore, the one responsible for the examination of their asylum application. The return migration may bring benefits for the countries of origin as well. We underline the role that the return of the human capital plays offering the possibility to transfer technical and scientific experience, to create economic, social, politic and cultural exchanges and networks and to make productive investments 65. However, the materialization of these benefits and their impact depend of the characteristics of the migrants themselves (level of education and skills, age, gender), the nature of the reasons to return (if considered a result of a failed migratory project, a necessity, or an opportunity) and the conditions in the country of return (chances of work placement, financial policies). Assuming that migration is made in order to finance an investment project in the country of origin, the choice of the return involves elements of development, savings and investment. The most specific form of business which brings economic development, associated with return migrants, is the commercial activity 66. Recent studies suggest the possibility of using returns as instruments of innovation in the field of rural tourism as well, because they are able to involve periphery areas with minimal resources, having therefore a direct effect of growth and development 67. The return assistance programmes are managed by non-governmental organizations, local authorities but especially by the International Organization for Migration (IOM) which boasts a consolidated activity of cooperation with the institutions, the government, the third sector and the civil society. The IOM facilitates and accompanies the migration flows, insisting on a cooperative approach. The strength of these programmes is represented by the personal involvement of every single migrant whose decision to return, as well as the time required for its preparation are taken into account. The assistance covers the entire process of return through plans elaborated by qualified personnel for each beneficiary. The migrant gets sustain and assistance along each phase of the return: during the phase that precedes departure (through informative campaigns, preparation of the return plan, logistical organization of the trip, “counseling” activities), during the return trip and in the period following the arrival in the country of return (through reintegration programmes and monitoring the process of reintegration). Therefore, the sustenance doesn‟t mean exclusively economic support, but it includes psychological and logistical assistance as well as diplomatic actions of mediation between the States involved. As far as the assistance development is concerned68, IOM analyses, with the help of experts and specialized operators, the needs and the expectations of the applicant and his family, the psychological discomfort or the motivations of the return, in order to achieve a conscious and sustainable return. Usually, a productive dialogue, which is required when looking for the most appropriate form of assistance in a particular case, is possible by creating a interaction based on trust and this can be facilitated by the cooperation of operators of the same nationality with the 65

IOM, International Dialogue on Migration. “Enhancing the Role of Return Migration in Fostering Development”, Geneva 7-8 July 2008. 66 Castagnone Eleonora, Ferro Anna, Mezzetti Petra, Strumenti metodologici per la ricerca sugli effetti delle migrazioni internazionali nel paese d’origine, Cespi, Rome, May 2008. 67 Gentileschi Maria Luisa, Pisano Daniela, Productive reintegration of return emigrants and rural tourism: life and work experience in Sardinia (Italy) and in the Province of Marrakech (Morocco), in “Migracijske I Etnicke Teme”, 3, 2006, pgs 247-262. 68 OIM, Tornare e Ricominciare. Guida sul Ritorno Volontario Assistito e Reintegrazione nelle aree di origine, Rome, 2005.

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applicant. The gathering of information on the situation existing in the areas of origin comes before the logistic phase, which completes the economic assistance. The procedure concerning the application for assisted return requires that the applicant shall fill in and sign a return application form, which would be sent to IOM with the passport and residence permit attached. The IOM will take charge to obtain from the consular authorities the release of an appropriate pass permit or other identity document for those who lack it. The booking of the trip will be made in agreement with the returnee and its costs will be supported by IOM, which will assist the beneficiaries during the airport/port procedures and will facilitate, through different actions, their socio-economic reintegration in the country of return. A partially different procedure is followed when assisting cases of trafficking victims and humanitarian cases as provided by Art. 18 of the “Consolidated Text” (Law no. 286/98). The social workers and every association or authority which gets into contact with immigrants subjects to exploitation and /or humanitarian cases must inform the IOM office about the cases which demand for return assistance. Every single case is analyzed then by specialized personnel, taking into account the voluntariness of the return as well as the appropriateness of the return in relation with eventual risks and the possibility for an effective reintegration. Over the years, the governments have consented more and more to the voluntary return assistance because it promotes a process which takes into account the needs and natural preoccupations of the individuals and provides conditions of safety and dignity, supporting in this way the positive outcome of the return and, therefore, it‟s effectiveness. Indirectly the countries involved as well benefit from the assisted voluntary return, since it proves to be more effective and popular than the measures of expulsion and forced return, diminishes the risks of human rights violations and improves the cooperation between the countries of origin and destination. The experience of those who benefited from the assisted voluntary return programme might encourage other migrants as well to choose the return through these channels. In the same time, the dissemination of positive outcomes and objectives accomplished through programmes of assisted voluntary return, especially in the territories of destination of the flows, may determine concrete positive effects in terms of participation of the potential beneficiaries of the projects. Although assisted voluntary return depends on the migrant‟s free choice, still there are incentives that shall be considered a support for the return. Thus, the preparation of a plan for individual‟s reintegration, the economic and logistical support, as well as the promptness of bureaucratic practices and an efficient organization of the return have a significant importance. A further incentive to return, albeit for a short period, is connected to the fact that, unlike expulsion which is accompanied by a re-entry ban for a period of up to 10 years, the assisted voluntary return excludes any re-entry ban. The perspective of a future re-emigration in the destination country is, instead, one of the most significant elements within seasonal work programmes based on a certain character of circularity in their implementation, which is regulated within the “Consolidated Text”. In accordance with Art. 5, “if the foreigner proves to have come to Italy for at least two years consecutively to carry out seasonal employment activities, in the event that he has been carrying out the same type of work, he may be granted a multi-year permit for seasonal work, up to three times for the same annual period of time as during the last of the two previous years with one provision only”.

3.2.The influence of the European policy, legislation and funding Italy ratified the Geneva Convention of 1951 on the refugee status by Law no. 722 of 24th July 1954, and implemented in its legislation the modifications made to the Convention by the so called New York Protocol. The prohibition of expulsion and rejection can be found in Art.19 of 34

the “Consolidated Text”. The indications and the principles to which it refers – in particular the principle of non refoulement which states that “under no circumstance a contracting State may expel or reject a refugee towards the places where his life or his freedom could be threatened because of his race, religion, nationality, membership of a particular social group, or political opinions” - are clearly protected by the Consolidated Text in particular by Art. 19 69. The same limits to expulsions are provided by the Charter of Fundamental Rights of the European Union, as well as by the Directive 2005/85/CE on minimum standards for granting refugee status implemented in the Italian legislation by a presidential decree of 3rd Oct. 2008. Since 1997, Italy joins effectively the Schengen System, having fulfilled the required conditions70, and is actively involved in its development. The abolition of the Borders between the European Union Member states emphasized the necessity of external borders control actions, which requires a commitment divided among all Member States71. In this respect, the information exchange between police offices has been improved, fact that led to the creation of Europol intended to improve the cooperation between the Member States in the common action to prevent and counteract terrorism, drug trafficking, and other forms of organized criminality; therefore in 2005 has been created CEPOL agency which aims at facilitating the transnational cooperation against crime. Then, in 2007 was created the European agency Frontex which, in cooperation with the abovementioned agencies, coordinates the management of the external borders. Among agency‟s objectives are, therefore, counteracting irregular immigration and providing for the Member States support in organizing common actions of return. Trying to draw the future perspectives of the cooperation for the management of the borders, the European Commission indicated the reinforcement of border control in the case of third country nationals (COM(2008)69) as the main element of development, proposing effectively the creation of Eurosur, an European system of border control, intended to prevent the non-authorized border crossing, to decrease the number of irregular immigrants who die in the sea and to increase the internal security of the EU, helping to prevent the trans-border criminality (COM(2008)68). Besides, in June 2009, the Commission presented the priorities of the future “Stockholm Programme” that should be adopted by European Council by the end of the year in order to guide, during the following 5 years, the actions of the single States intended to assure objectives of freedom, security and justice, as a continuation of Tampere Programme and The Hague Programme, aiming at balance between security and solidarity. The coordination action between the Member States of the Union has always been structured on the three guidelines of migration flows control, integration of the immigrants and the fight against human trafficking and irregular immigration. Regarding the dimensions of border control and prevention as well, the European Union‟s action is characterized by the interest shown in the situation of asylum applicants (creating a common asylum system) and in the effective respect of the personal security. To be noticed the Charter of Fundamental Rights of the European Union (introduced by the Treaty of Nice of 2000) which proclaims the prohibition of mass expulsions and expulsions of subjects who risk death penalty, torture or other cruel, inhuman or degrading treatments. Among the relevant EU documents concerning the implementation of the return policy, we should mention the European Pact on Immigration and Asylum aimed a common policy of the EU through: - organizing the legal migration, taking into account the priorities, the needs and the reception capacities of every Member State, encouraging integration; 69

Ministry of Interior, Italian Council for Refugees, Universo rifugiati: dalla persecuzione alla protezione, Rome, December 2007. 70 EMN Italy (Ammendola C., Pittau F., Ricci A.), Return migration: the Italian case, Idos, Rome, 2006. 71 Consiglio dell‟Unione Europea, Catalogo Schengen UE. Controlli alle frontiere, rimpatrio e riammissione. Raccomandazioni e migliori pratiche, Editorial group for the update of Schengen Catalogue on external borders control, return and readmission, 7864/2009, Brussels, 19th March 2009.

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-

the control of irregular immigration, assuring the return of irregular immigrants to the countries of origin or transit; - the effective border control; - the construction of a common asylum system; - the creation of a partnership with the countries of origin and transit and the promotion of a synergy between migration and development. The return acquires a primary significance as an effective instrument in counteracting irregular immigration. The bases for a return policy may be found already in the Communication on Asylum and Immigration Policies of 1984 and developed in the Green Paper of 2002 regarding the EU policy for the return of irregular residents on EU territory. The Council‟s Decision 2004/573/CE, regarding the organization of the joint flights for the removal of the third country citizens who reside irregularly on EU territory, identified a concrete measure regarding common return procedures. The attempt to find measures that are fully compatible with the fundamental rights protected, among others, by the European Convention on Human Rights, represents the basis of the Directive no. 155 of 2008 concerning common norms and procedures for the return of third country citizens who reside irregularly on the territory of a Member State. Unlike the evolution of the debates on voluntary return at EU level, especially through the Return Directive, the hypothesis of voluntary return, as promoted by the EU normative, has not been acknowledged by the Italian legislation. The hypothesis provided is mostly the forced return and, by the introduction of the crime of irregular immigration, the conviction for such crime is followed by expulsion (disposed by judge as substitutive sanction of the punishment). The provisions contemplated in the Return Directive may not be applied in accordance with Art. 2 (2) of the same Directive when considering third country nationals “subjects to return as penal sanction or as a result of a penal sanction, in accordance with the national legislation”. In order to promote the voluntary return, the Member States are required to provide assistance and counseling for the migrant, take advantage as much as possible of the financing availability of the European Fund for Returns created by Decision no. 575/2007 for the period 2008 – 2013 within the general programme “Solidarity and Management of Migration Flows”. The abovementioned Fund is intended to finance the development of programmes for the return management: a strategic approach, the cooperation between the Member States, (inter)national specific innovative instruments, the dissemination of EU norms and best practices. In Italy, the responsible authority within the Ministry of Interior is the Department for Civil Liberties and Immigration which provided for the elaboration and the draft of the multiannual programme 2008-2013 and annual programme for the fund. The European Fund for Return will grant for 2008-2013 approximately 71,063,000 euro, of which circa 5,867,000 for 2008. Among the projects financed for 2008 we find: the mapping of the main immigrant communities in Italy, the assisted voluntary return programmes, the organizing of the charter flights for return in cooperation with other Member States and Frontex agency. In the following years, the Fund will be granted sums equal to: European Fund for Returns: 2009-2012 (euro) 2009 6,029,000

2010 8,476,000

2011 12,020,000

2012 17,621,000

2013 21,050,000

SOURCE: EMN ITALY. Calculations on Ministry of Interior data

Italy, in harmony with EU asylum and immigration policy, enforced recently important Directives regarding the implementation of an European return policy, among which it worth naming the Directive 2001/40/EC regarding the mutual recognition of decisions on expulsions of

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third country nationals (Law Decree no. 12 of 10th January 2005)72, Directive 2003/110/EC regarding the mutual assistance for return by air of third country nationals (Law Decree no. 24 of 25th January 2007). To this is added the implementation of Directives aiming at the creation of a common asylum policy, such as Directive 2004/83/EC regarding the minimum standards for the qualification and status of third country nationals or stateless persons as refugees (Law Decree no. 251 of 19th November 2007) and Directive 2005/85/EC concerning the minimum standards and procedures in Member States for granting and withdrawing refugee status (Law Decree no. 159 of 3rd October 2008). The return policy includes not only the internal EU dimension concerning the process of harmonization, but also an external dimension regarding the countries of transit and origin of the migration flows. The readmission agreements represent an useful instrument of the European Union foreign policy since they establish the obligations and procedures to be respected by the two parties regarding the modalities and the periods required by the readmission of the citizens residing irregularly on the territories involved in the agreements. In 2008, entered into force, the readmission agreements signed by the European Union with the Serb Republic and with Ukraine. They followed those signed with the Russian Federation, Albania, Sri Lanka, Macao and Hong Kong. Negotiations have been made with Republic of Moldova, Bosnia Herzegovina, Montenegro, FYR of Macedonia and the Commission recently called for concluding readmission agreements with Cape Verde, Georgia and Pakistan as well. In addition to the readmission agreements, special clauses on readmission, regarding the return of persons with irregular residence on the territory of a Member State, may be included in the international agreements contracted by the European Community with the third countries, and particularly in association agreements contracted with Central and Eastern European Countries (PECO), in the partnership and cooperation agreements contracted with the Former Soviet Countries and in Euro-Mediterranean agreements. Financial and technical assistance programmes are expected to be signed as well, such as AENEAS and ARGO intended for the assistance of third countries on migration and asylum. Starting with 1st of January 2007 an European Neighborhood and Partnership Instrument (ENPI) is provided exclusively for the South and Eastern Mediterranean countries (Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Syria, Tunisia, Palestinian Territories), Ukraine, Moldova, Belarus and South Caucasus Countries (Georgia, Armenia and Azerbaijan) ENPI replaced MEDA and TACIS instruments and focuses on four macro-areas of action: economic and social development, common challenges, border security and efficiency and promotion of “people to people” actions. The European Union provides for this instrument 11,967 billions euros and promotes, among other actions, the “support for the reform and enforcement of the capacities regarding justice and internal affairs, including the right of asylum, migration and readmission, and the actions aimed to counteract and prevent human trafficking as well as terrorism and organized criminality, including its financing, money laundering and fiscal fraud. Within ENPI there have been implemented programmes of trans-border cooperation between areas of the Member States and the neighbor countries which share a land or sea border. A significant importance has the multilateral programme on Mediterranean Basin, managed by the Region of Sardinia, as the Authority of Joint Management (Autorità di Gestione congiunta) which involves 19 countries and 120 regions (for Italy, besides Sardinia, Basilicata, Basilicata, Calabria, Campania, Lazio, Liguria, Apulia, Sicily and Tuscany). The budget of the programme makes use of an overall contribution from European Union of 173 million euros (50% from the European Regional Development Fund (FESR) and 50% from ENPI)

72

The decree implementing the Directive 2001/40/EC recalls the Decision 2004/191/EC on the compensation of the financial imbalances that may derive from the removal decision and cannot be executed at the expenses of the foreigner concerned

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4.Overview on assisted return measures

4.1. Reasons and obstacles The voluntary return is negatively influenced by internal factors as, for example, the possibility to go in the country of origin and turn back in the country of destination. The fear of not being able to turn back one day in the country of destination, for reasons related to the difficult economic or social reintegration in the country of origin, and the risk of loosing the good position acquired and the opportunities available in the country of destination, deter the migrant from returning voluntarily in his own country of origin. A second aspect that influences voluntary return is the evaluation more or less negative of the economic situation, in the country of origin. In the case of asylum applicants and trafficking victims, it is rather the evaluation of the political situation that weighs more. Often the migrant is determined to leave his own country because of conflict, political instability, or the violation of human rights, whose persistence, therefore, obstacles the return even if wanted. To this is added the real eventuality for the asylum applicant or his family to suffer discrimination and to risk physical maltreatment. Other impediments may come from the countries of origin and may be decisive for certain groups of potential returnees. For students or high-skilled migrants the obstacles might regard the difficulties in the recognition of the titles or experiences acquired abroad; for entrepreneurs, the obstacles might be related to the system of taxation or bureaucratic system associated to the eventual transfer of their own business; finally for elderly people or persons who need medical care, the concerns are for the health system. A special approach must regard the theme of remittances. On one hand, indeed, turning back home implies the run out of a significant source of economic support, that is, often, a concrete sign of having attained, along the individual migration project, the goals settled; on the other hand, the need for saving (in the detriment of the sums intended for remittances), in order to cover the costs of the return, is not always facilitated by the banking services in the countries of destination. The process of voluntary return may meet difficulties when the state which the return is addressed to delays in providing the documents required for the journey. The financial assistance is of approximately 900 euro, with the possibility to increase up to 1,650 euro per family. One of the factors that most discourage the migrant from the voluntary return to his country of origin has to do with the use of the contributions paid for the pension in the emigration country. Indeed, during the period of work abroad, the migrant, together with his employer, contributes with resources which, at the end of the work period, would be granted to him as pension. The vested welfare and social security rights of a foreign worker who intends to return in his own country of origin, are not immediately redeemable once turned back in the home country (possibility abolished by Law no. 189/2002), unless he had fulfilled the requisites of the current normative. As for the procedures, every worker who provides work in Italy is subjected to the Italian welfare legislation, on basis of the principle of territoriality of the compulsory assurance. The foreign worker who decides to return in his own country must present an application at the National Institute for Social Welfare (INPS) and must return the residence permit at the border. Only when the beneficiary would have reached the retirement age, INPS would provide for the payment of the pension, no matter if there are or not mutual agreements with the country of origin. 38

We must underline that only the contributory pensions may be redeemable abroad. The social allowances and the benefits for disabled citizens instead can only be provided to the beneficiaries with Italian residence. Both social allowances and benefits for disabled citizens in fact are not bound to paid contributions. The social allowances are those welfare allowances provided only under certain circumstances, that is for those who turned 65 years and receive an individual and family income under certain limits; the allowances for civilian invalidity are provided however for severe invalidity, regardless the age of the beneficiary. Therefore the possibility to benefit from the national security rights acquired abroad may be either an obstacle, as shown earlier, or an incentive for return, in case of accessibility. The previous Law 335/1995 provides a good example in this respect. It provides for the possibility of the returnee to obtain the settling of national insurance contributions increased at the annual nominal rate of 5%, even before having matured the right to pension. The direct consequence was the possibility to be granted immediately the amount increased due to the capitalization rate applied to the amount of contribution to be settled. Thanks to the INPS database we can have a panorama of the allowances (old age pensions, survivors‟ pension, social allowances and benefits for the disabled citizens) paid to the foreign nationals with both Italian and foreign residence. The database registers as foreigners all those who are born abroad, regardless their citizenship. It means no differentiations are made between the nationals born abroad and the foreign citizens, therefore including many Italian emigrants who returned in Italy as well. ITALY. INPS pension allowances provided for the citizens born abroad (1/1/2007) Category Old age Invalidity Survivors Social allowances Invalidity Total

a. v.

% 114,814 19,994 100,735 20,692 37,790 294,025

39.0 6.8 34.3 7.0 12.9 100.0

SOURCE: Caritas/Migrantes Dossier Statistico Immigrazione. Calculations on INPS data

INPS data 73 show that at 1st January 2007 the allowances paid for the persons born abroad were of 294,025, of which 60,181 paid abroad (approximately 1 payment out of 5). At present, the current international conventions involve approximately 20% of non EU workers registered in the INPS archives and implies a number of 50,612 payments (a little less than 1out of 4). The annual cost reaches 2 billions and 564 millions of euro, of which 12% paid abroad (212 millions of euro, equal to an average amount of 271 euro). The pensions provided abroad are managed by specific headquarters of the National Institute for Social Welfare INPS – named territorial poles depending on the concerned country (for example the specialized pole for Argentina is Venice, for Yugoslavia is Trieste, for Tunisia is Palermo). The estimations concerning the future of immigrants‟ pensions, based on demographic factors and other aspects such as the contributive consistence of the foreigners and on the presumed statistic irrelevance of the workers who return before vesting the right to pension, anticipate that the pension flows for foreign workers could have these rhythms: 6,290 per year during the five years period 2005-2010, for a total of 31,450 73

Pittau Franco, Le prestazioni pensionistiche erogate agli immigrati, in INPS, Dossier statistico Immigrazione Caritas / Migrantes, Diversità culturale, identità di tutela. III Rapporto su immigrati e previdenza negli archivi INPS, Rome, April 2009, pgs 158-170.

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payments; -

21,836 per year during 2010–2015, for a total of 109,180 payments; 34,979 per year during 2016-2020, for a total of 173,945 payments.

4.2. Organization and actions The assisted voluntary return projects are promoted and supported in Italy by a series of institutional actors in the social field such as non governmental organizations, associations for protection of the human rights and migrants associations, research institutes, but also municipalities and regions. Every project aims at assisting for return a particular group of migrants, usually without distinguishing between voluntary and forced returnees. The assisted voluntary return projects for the foreigners are in generally preceded by informative campaigns in order to inform as much potential beneficiaries as possible about the opportunity to make use of assistance and support for the return. The informative campaigns, last one year on average and regard single return project, often addressed to a precise target of migrants, as for example trafficking victims, asylum applicants whose applications have not been accepted or had been withdrawn, immigrants who lack the necessary economic means for the return, or especially if assisted by organization interested particularly in certain geographical areas (for example because they are migrant associations or from an area with a high immigrant concentration). They promote programmes addressed to a specific national group. The information on the projects in question is disseminated mainly by means of informative materials (leaflets, informative packages, fliers) and put at disposal in places probable to be reached by immigrants: immigration front offices, immigrant associations, public offices, prefectures, local health agencies ASL, province offices, embassies. In addition to these channels we have the organization of events and congresses for promotion of the projects recommended, which produces then the cascade effect mainly because of the dissemination of news by the media at local level in particular. In the end we have to mention, of course, the use of internet as the most spread mean of acquiring materials and information. Therefore, each project has an internet site which provides the necessary information regarding the project and its main elements: funds, target, action promoted, modalities of participation. Sometimes the action of informing becomes a project itself, based on migrant‟s choice of voluntary return. It‟s the case of the project named “Information on Return and Vulnerable Groups” 74 promoted in Italy by the Italian Council for Refuges (CIR) in collaboration with various European associations involved in the field of immigration and asylum, more specific CIRE (Belgium), Caritas Internazionale (Belgium), Accem (Spain) and the Danish Refugee Council (Denmark). The project is financed by the European Commission within “Return” programme and is active from January 2008 for a period of 18 months. The objective of the project is indeed to provide all necessary information for the migrant who intends to return in his country, information related to the countries considered in the project75, without providing economic support. The activities implied by this objective are structured on three levels: a research activity on the countries of origin regarding the data of interest of the potential returnee; a direct contact with the foreign communities; a specific formation on the return normative and activities of the juridical and social operators who are in contact with immigrants and refugees.

74

See: www.cri-project.eu. Italy has managed the implementation of the „Country Fact Sheet” from Ghana, Cameroon and Egypt, while the other partners of the project being in charge with Algeria, Democratic Republic of Congo, Guinea, Morocco, Albania, Armenia, Bosnia Herzegovina, Croatia, Georgia, FYR of Macedonia, Montenegro, Russia, Serbia, Argentina, Ecuador, Venezuela. 75

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Within the site can be found 19 reports on likewise countries containing useful information on the conditions of entry, personal security, reintegration opportunities (accommodation, work, social system, health system, school), activities of non governmental organizations and contact information, information depending on the specific characteristic of the return migrants (women, men, children, elderly people). After a first recognition of the useful information regarding the decision and organization of the return, the migrant, especially if irregular in Europe, which is the main target of the project, finds then support through the information provided directly on the site of the project and then, if needed, through the direct contacts with local partners, indicated in every country file. IOM practice guide “Return and restart” (“Tornare e Ricominciare”) represents one notable example of good practices regarding the informative campaigns on returns and assisted voluntary returns. It is addressed especially to the social workers who deal with asylum applicants and it contains a large scale of accurate information on the procedures and conditions for the return, the obstacles for its implementation and the programmes promoted by IOM. The guide is accompanied also by an analysis of the psycho-social implications related to return and by illustrating files that show the experience of single beneficiaries of assisted return programmes carried out by IOM. The diffusion of these materials has been wide because it used channels of the Protection System for the Asylum Applicants and Refugees and the materials have been distributed to the associations and administrative agents of the governmental Reception Centres for Asylum Applicants. The guide and the posters and brochures elaborated in various languages have been used also during IOM meetings intended for the promotion of assisted return, be they training courses, workshops or seminars organized ad-hoc by municipalities and associations. The objective is to provide for those who might be interested indications useful in choosing and elaborating consciously an eventual return, the voluntary character of the effective choice being understood, and to facilitate the contact between the operator and the potential beneficiary of such projects. The action of counseling, as well, provides assistance for both assisted return beneficiaries (excluding therefore the immigrants with forced return provisions) and institutions involved in the process of reintegration in the country of origin. The implementation of this action must be subject to annual tender, in agreement with the Ministry of Interior, even if the agent in charge is generally IOM, organization intended for the operational management of various projects of assisted voluntary return. The various phases on which the action of counseling is structured are: checking up the free choice of the migrant and therefore strengthening the confidence in it; the dialogue with the embassies and consulates of the countries of origin in Italy; the eventual visit of the place where the migrant intends to return, in order to evaluate the eventual success of the project 76. In the followings we will present some of these projects, highlighting the strong and the week points regarding their implementation and the resulted obtained. One of the projects intended to provide return assistance for persons with an expulsion provision, and therefore forced to return into their own countries, has been AlbaMar project (www.albamar.it), carried out by COOPI (www.coopi.org) and co-financed by the European Commission. The projects objective is to provide support for the reintegration of the Albanian and Moroccan migrants returning to their countries of origin. The project has been implemented in the Italian cities of Turin and Milan, on cooperation with the Moroccan provinces of Khoribga and Beni Mellal and with the Albanian provinces of Tirana and Shkodra. Although the project provides for a paid training course of six months, the action does not provide for any economic support for the organization of the journey. It rather focuses on psychological accompaniment 76

EMN Italy (Ammendola C., Pittau F., Ricci A.), Return migration: the Italian case, Idos, Rome, 2006.

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towards the country of origin and it is structured on various levels: reception and listening; information and sensitizing; orientation and professional integration; promotion of social activities. Even if the project involved a number of 538 beneficiaries, of which 264 Moroccans and 274 Albanians, the number of women involved in the project is smaller, equal to a total of 91 persons, that is less than 20%. This might happen due to the difficulties in setting up an efficient communication between the social workers and beneficiaries. Circa 67% of all beneficiaries returned in their countries because of an expulsion provision, while, for the rest of 33% the choice was voluntary. Among the sectors from the countries of origin which integrated women prevail manufacture, hairstyling and catering, while for men prevail electrics, farming, services in eco-business. The target group was represented by irregular migrants who find themselves stuck in an undefined area of their existence, having no legal and formal perspective and whose stay on Italian territory would be therefore accompanied by insecurity. In order to get into contact with potential beneficiaries, the project appealed to Correctional Centres and Reception Centres. We must underline the fact that no immigrant from the Correctional Centres could be assisted for return, probably because the detainees tended to institutionalize any social operator who entered the Centre, making difficult the creation of a confidence climate or, even more, the credibility of the project. Therefore, the strong point of the project is not as much the project itself as the capacity of the social workers to gain the trust of the beneficiaries. The efficient implementation of a return project emerges essentially from the confidence of the migrant in the institution which provides assistance because, especially in cases of forced return, it‟s difficult to overcome the fact that the immigrant associates the return proposal with favoring expulsive mechanisms. According to the social operators, the assistance may be improved by activating a service of psychological assistance and one of juridical counseling in order to help the returnees with pending juridical issues in Italy. The implementation of the project can be subject to two critics essential for the development of the future similar projects. The resources available for the project allowed informative actions especially, but they permitted less an eventual personal elaboration which requires periods (sometimes very long) adapted to individual cases and not imposed by the outside. The sustainment offered was not perceived as real and credible, at least not in at the beginning and this led to a postponement of the periods estimated for the implementation of the project. The informal exchange of information between the already returned immigrants and the potential beneficiaries of the project helped to overcome this initial obstacle. The last element of difficulty was related to the implementation of a network activity, that is relations and interdependencies between the various components of the project - Italian, Moroccan and Albanian – which did independently their duties. Various interviews with beneficiaries of the project 77 reveal that, although the migrants prove to have acquired a mixed identity which places them between the country of destination and the country of origin, the voluntary returns have been determined by difficult conditions of living in the host country, due, for example, to the loss of job or the expiry of the residence permit. The risk of living in irregularity, usually inherent to the loss of job or documentation required for the residence permit, has been considered the most relevant obstacle for their stay in Italy. On the other hand, the difficulties regarded also the reintegration in the economic and labor system of the country of origin, due to a high percentage of unemployment. The return, however, proves to be less stable because of the strong desire of the forced returnees to turn back in Italy. The motivating factors for returning in Italy are: the hope for an immigration regularization; 77

Barbieri Viola, Tra il qui e l’altrove. Una ricerca sul rimpatrio dei cittadini marocchini, in “Studi di emigrazione”, no. 46, 2009, pgs 151-161.

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the idea of turning to try their luck; the possibility of finding a job which may allow them to use their skills. The main discouraging element instead, as the scientific literature on the theme reveals, consists in the reintegration in the social network of the country of origin. Similar conclusions have been reached by a similar research 78 of 2005, carried out by CeSPI within Al.Ni.Ma. project on the assistance of return irregular immigrants in Morocco, Albania and Nigeria. It was the case of returnees who were forcedly expelled, mostly after a detention experience. In this case as well, in light of the failure of the return experience, the desire to turn in the country from where they have been expelled is widely spread. Critics had regarded also the reception in their countries by the relatives and the difficulties of reintegration in the economic and labor network, adding to the psychological impact on the return itself. A sustainable return is difficult whenever the living conditions are precarious. Thus, the abovementioned research proposed forms of “hybrid forced return”, which would provide support for the reintegration of the expelled migrants even in cases of forced expulsion. Therefore, an assistance for forced return is recommended as well, as suggested by EU indications which are reflected already in some Italian experiences. We cannot talk about assisted return projects without mentioning W.A.R.M. project (Welcome Again: Reinsertion of Migrants) 79 born within AENEAS programme in which are involved Municipality of Rome, Caritas Italy and Albania and the Partner for Development (P.f.D.). Even if the project has already ended (it had a 36 months duration, since 1 st January 2006 until 31st December 2008), it gained much appreciation by the Albanian government which proposed it, within the Council of Europe, as an example of “best practice” for the reintegration of migrants. In the nineties, Italy witnessed a large migration flow from Albania, which turns this group in one of the most representative nationalities in the structure of immigration on Italian territory, counting more than 400 thousands units. In comparison with the previous years, the regular dimension of the migration increased, mostly due to family reunifications but also thanks to the increase of the number of returns. In 2006 the number of Albanian immigrants subjects to forced return, as expulsions or because of readmission agreements, reached 2,984 units. To these are added the voluntary returnees due to the economic and political stabilization of the country, the major economic prosperity and the opportunities of integration in the labor market but also due to external factors like the difficulty of the process of stabilization and regularization in Italy. Therefore, the migration flow that enters Italy is accompanied by one who returns without being cyclic. The objective of the project consisted in supporting Albanian immigrants to return because expelled or rejected, or on the basis of voluntary decision, through various training courses, work assistance and/or assistance for the creation of micro-enterprises in the country of origin. The project is based also on the desire to increase the awareness of the Albanian and Italian authorities regarding the return of migrants, to transfer the knowledge and the “good practices” to the Albanian agencies involved in the creation of enterprises and integration in the labor market, to facilitate the reintegration at work for the returned migrants and to sustain the creation of micro-enterprises. Among the activities envisaged in the project: - the preparation and the promotion of the project and the creation of protocols with the Italian and Albanian authorities; - the formation of the Italian staff and Albanian social workers;

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Coslovi Lorenzo, Piperno Flavia, Pastore Ferruccio, Rimpatrio forzato e poi? Analisi dell’impatto delle espulsioni di differenti categorie di migranti: un confronto tra Albania, Marocco e Nigeria, CeSPI Working Papers 13, Rome, 2005. 79 See: Devole Rando, Pittau Franco, Ricci Antonio, Urso Giuliana (eds), Gli albanesi in Italia, Idos, Rome, 2008.

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-the awareness raising of the Albanian potential returnees, in Italy before the return and in Albania before the departure, through an intense dissemination of informative material: 2,800 brochures, 2,000 posters, advertising spots spread within the local and national networks; - the creation of a database based on the interviews and meetings with potential future beneficiaries having as objective to check their socio-economic situation, their professional skills and the experience acquired, the reasons for emigrating and for returning and the professional interests, in order to orientate their formation; - orientation and formation courses in Albania: 200 hours on the labor market, how to write a CV, laws and procedures for initializing a business; 100 hours of training on-the-job intended to transfer specific technical skills regarding the profession chosen by the migrant; - psychological assistance for eventual traumas implied by return; - the creation of a network between WARM Project and the labor institutions. On long term, these contacts, agreements and exchanges with local institutions would lead to structural changes in dealing with emigration and its problems. The numbers80 reveal successes: 512 beneficiaries (objective foreseen 300); 215 trained persons, 109 work insertions (objective foreseen 100), 3 national public tender that lead to the presentation of 96 Business Plans, 12 enterprises created and 24 to be financed (objective foreseen 20). The projects provides indeed, in its initial phase, a non-repayable grant for the creation of micro-enterprises whose distribution is subject to public tenders. Any tender foresees a maximum financing of 7,000 euro per company, that may arrive up to 10,000 euro if the proposal is evaluated as particularly innovative. While the aspect of efficiency of the project proves to be extremely positive, it is not possible yet to make a complete evaluation regarding its sustainability. An evaluation could be made only after some time and when the project would have revealed completely its effects. The strong points of the project have been the creation of a local network which encompasses the network of Caritas Albania (6 Diocesan Caritas, 95 catholic missions on territory), the Chamber of Commerce, the Ministry of Labor and Social Affairs, local institutions as well as local enterprises. Moreover, the data collected through this project represent a rich source of information that allows describing the return migration in Albania, its deep-rooted cause and its effects (that contributes to make the migration policy well targeted). The complexity of the geographical distribution, gender, age and experiences makes the sample significant and useful. The resulting identikit of the Albanian return migrant can be summarized as follows: a male migrant (77.2% of the beneficiaries are) less than forty years old (very often less than thirty), coming from families with rather many members (composed of four, five or six persons). His education level tends to be a middle school level; he has lived and lives in urban areas and returns after a period of residence in Italy that goes from one to three years. The returnees are mostly voluntaries and the motivation for return in their own country is the fear of residing irregularly in Italy which could prevent them from going back to Italy in the future. Another project, addressed to migrants from Latin America is named “Building a Return Network in Latin – America for a Comprehensive, Effective and Sustainable Return Programme Including Reintegration” (RN LATAM) and it is promoted by the Italian Refugee Council (CIR) in collaboration with ACCEM (Spain, leader partner), Soleterre, Strategie di Pace e Opere Riunite Buon Pastore (Italia) and financed by Return Programme of the European Commission. The beneficiaries are nationals of Argentina, Columbia and Ecuador who are provided with an expulsion order or do not fulfill anymore the legal conditions for the residence on Italian territory of who decided voluntarily to return in their home countries. The objective of the project is to create an assistance network encompassing European partners and organizations with activities in migration field in the three countries in question, so 80

Data at June 2008.

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that the return could be linked to the reintegration that is necessary for the sustainability of the whole process. Within a global approach of the phenomenon of return migration, the project aims to offer to the migrant a social and legal counseling on the process of return, actions aiming at facilitating job placement, an orientation for social, educational and economic reintegration, all these guided by the principle of respect and protection for the human dignity. A special attention is given to the vulnerable groups, such as minors, disabled persons and women. Among the new projects planned for voluntary assisted return, it is worth mentioning the projects with territorial character financed by the European Fund for Returns for 2008: RACINE Project by IOM Rome and Centro Studi e ricerche IDOS: a survey on the main immigrant communities in Italy, aiming at identifying the places with a major concentration of irregular immigrants who might opt for voluntary return; RACINE – Information Project by IOM Rome and Centro Studi e ricerche IDOS for strengthening the capacity of informing the immigrants - potential beneficiaries about the options offered according the to assisted voluntary return and reintegration schemes; P.A.R.T.I.R Project by IOM Rome on support for assisted voluntary return and reintegration in the country of origin; Italian Networking for the Assisted Voluntary Return (NIRVA) Project by Italian Association for the Council of Municipalities and Regions of Europe AICCRE, Acli, Caritas Italiana, Cir and IOM Rome for creating a network of reference encompassing social workers, local authorities, NGO‟s, embassies and consulates of the countries of origin. The various projects that sustain the return harmonize with the objectives of the Italian cooperation when focusing on the impact that may have in terms of development in the countries of origin of the flows. The return may indeed be a source of support for the countries of origin, but not quite directly. The projects on assistance of the return aim rather at developing the potential of the migrants as a resource for their own country. In present there are two projects financed by the Ministry of Exterior through the General Direction for Development Cooperation related afferent to migration-development theme: Migration and return (Mig-Ressources, www.migrationretours.org) and Migration for Development in Africa (MIDA). The first project is carried out by IOM in collaboration with CERFE research centre and with Economic and demographic research centre (CERED) of Rabat and Hassan II Foundation. Its objective is to sustain the economic and social development of Morocco by using to advantage the potential represented by the high-skilled migration of Morocco in Italy. The intention is to facilitate a better integration in Italy and, in the same time, to promote an oriented investment of the remittances and the implementation of the return programmes, be it virtual or real. The activity proposed is structured on four main elements: studies and researches, formation activities, support for integration in Italy and testing pilot projects on development, financed by the remittances in Morocco; elaboration of the final form. In accordance with project‟s objectives, 30 potential qualified migrants have been selected in Morocco, they have been given specific formation in view of their integration in Italy, whereas in parallel, 80 high-skilled Moroccan immigrants in Italy received assistance within the implementation of return projects. The second project focuses mainly on the virtual return of the migrant, which, through the promotion of projects on co-development, non financial services of support for the creation of enterprises in order to sustain the star-up of small and medium enterprises in the countries of origin (such as Business Development Services) and innovative mechanisms for the transfer of the remittances, sustains the immigrants from Ghana and Senegal who reside in Italy and are interested in contributing to the economic and social development of their own countries of origin.

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An increasing attention is given, in the Italian context, to the “decentralized cooperation” as innovative form characterized by the reciprocity of the benefits, and capable of creating a working relationship between the local authorities and subjects on territory81 going over the traditional government-government approach. By decentralized cooperation is intended, in Italian context, the activity carried out by local authorities (regions, provinces, municipalities), in partnership with correspondent bodies from the developing countries (PVS) (through territorial, trans-border and local partnership) with the contribution of the civil society from those territories. The engagement of the Provinces in the field of cooperation for development is recent, notable starting with year 2000. In the activities intended to promote the assisted voluntary return, proposed by the municipalities, often co-financed by the European Commission, three factors recur: 1) attention for the research, 2) objectives of economic and entrepreneurial development, 3) irregular immigrants as beneficiaries. Among the projects promoted by the Regions worth mentioning: - Immensity implemented by Region of Marche (www.e-immensity.net), which objective is to stimulate the entrepreneurial potential of the migrants from CADSES area 82 who reside legally on one of the territories of the partner countries of the project (Italy, Greece, Poland, Slovakia, Slovenia, Germania, Albania, Bulgaria) with particular attention for women, and to promote in parallel bilateral trade agreements with the countries of origin, in prospect of an eventual transfer of migrant‟s activity in his own country. The main element is the creation of an information office for the immigrant entrepreneurs and the filling out of “return plans”; - Return of Migrants (Re.M) 83 implemented by Region of Veneto84, which objective is to provide return assistance and support for the regular immigrants of Veneto for setting up enterprises in Senegal, Ghana and Serbia. The project promotes the circular migration and, therefore does not require the formal renunciation to the right to stay in Italy of the immigrants involved, but a real engagement in the management of the business activities and in the transfer of resources and abilities acquired by the migrants during their stay in Italy. A fundamental role in the project have the immigrants associations regularly registered at the Regional Immigration Register; - Migravalue implemented by Region of Veneto and Region of Emilia Romagna 85, which objective is to develop instruments of analysis for making valuable the financial and human capital of the migrants legally residents on the territory with the purpose of promoting the economic and social development of their communities of origin as well as the support for the integration of the regions of departure and destination involved. More precisely, the objective has been pursued through the design of financial instruments which play the role of a system link between the financial availability generated by immigrants and the availability of credits for initiatives of local development, giving particular attention to the trans-national 81

Stocchiero Andrea, I nodi dell’evoluzione della cooperazione decentrata italiana, Working paper CeSPI, no. 37, Rome, 2007. 82 CADSES area encompasses eighteen countries among Member States and Third Countries: Austria, Czech Republic, a part of Germany, Greece, Hungary, a part of Italy, Poland, Slovakia, Slovenia, Albania, Bosnia Herzegovina, Bulgaria, Croatia, Serbia and Montenegro, Former Yugoslav Republic of Macedonia, Moldova, Romania and part of Ukraine. 83 See: Condotta Andrea, Libralesso Davide, Percorsi di sostegno alla migrazione circolare attuati dalla Regione del Veneto: l’esperienza di “Re.M.: Return of Migrants, in “Studi Emigrazione”, no. 174, April-June 2009, pgs 363372. 84 The Region of Veneto distinguished itself through its engagement in the field of immigration, showing a special interest in the theme of return. In addition to the abovementioned project worth being noted the project entitled Vorealci (Voluntary Returns of Albanian citizens from Italy and Greece to their country of origin” carried out within the programme “Return” financed by the European Commission for facilitating the return of 25 Albanian nationals residing illegally in Italy and Greece who held an expulsion provision. 85 The partnership of the project encompasses various states: Italy, Greece, Poland, Slovakia, Hungary, Romania, Bulgaria, Albania.

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dialogue between the actors involved. As far as regards the actions promoted by the local bodies, “Return SPNR” project promoted by the Municipality of Sassuolo (Modena) has proposed a study on impact, in terms of processes, procedures, persons involved, perceptions and messages of the local press – generated by the management of the return of irregulars on the communities concerned. The project, financed by the European Commission within “Return” programme86 and carried out in collaboration with the Municipality of Collado Villalba in Spain, focused on the analysis of the norms and procedures, on one hand and on the perception of the citizens and subjects involved on return, on the other hand. Successfully concluded at December 2007, the research revealed the difficulties in implementing assisted return processes for irregular immigrants, for organizational reasons as much as for cultural ones. From the organizational point of view, among the critical aspects in the project, has been pointed out the lack of a real and proper governance of the return process: the subjects involved (local bodies, police forces, associations) did not always succeed to establish an efficient collaboration and neither did the institutions from the countries concerned; the operators proved to be sometimes unprepared in front of the necessities raised by the irregular immigrants, especially if belonging to vulnerable groups; the migrants themselves cannot interpret the return as a positive perspective for their own future. From a cultural point of view, instead, the study reveals how 70% of the articles analyzed concerning the foreigners make references to the category of “security and criminality”, with the inherent risk of “exploiting” the image of foreigner . Among the strong points of the study promoted by “Return SPNR” are to be found the integration of various methods of research and the collaboration of various actors involved (study centres, public administration, operators, project partners), the use of focus-group involving operators in this field, Italian citizens and foreigners. Among the critics regarding the implementation of the research there have been emphasized the difficulty of involving foreign nationals, especially if undocumented, and the collection of data on this theme which still has not been investigated enough. From this study emerges a second project, edited by the same Municipality of Sassuolo, which intends to use the indications resulted from “Return” for projecting and implementing integrated actions of assisted voluntary return efficient from an operational and cultural point of view. The information, able to activate innovative processes on themes related to return and immigration, coming from the “Return SPNR” research, covers four fields of action that are: the information systems, the relational dynamics, the actions of integration and research and the normative procedures. The project in question, Integrated Return Management in Action (IRMA) has as main target the irregular Moroccan immigrants on the territory.

86

See: VV.AA., Return SPNR. La gestione dei processi di rimpatrio, Nuovagrafica, Sassuolo, 2007.

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5. Reintegration and sustainability for return

The actions of return, be they forced or voluntary, are placed within the migratory project of the individuals, but without drawing final conclusion. The sustainability of the return and, therefore, the renouncement to re-emigration, is given by a well-constructed complex of factors that are associated with the conditions in which the return takes place, with the situation from the country of return and with personal subjective aspects concerning the migrant. The sustainability is given also by the perception of who returns on his opportunities for a decent living standard and an adequate level of integration. In fact, when these proper conditions of life are missing, the migrant would eventually seek a new emigration contributing in this way to the vicious circle of irregularity. Robert Schuman Centre has investigated more in depth this theme through various studies within the project named Collective Action to Support the Reintegration of Return Migrants in their Country of Origin” (MIREM, www.mirem.eu), which began in December 2005. The research, financed by the European Union and The European University Institute (EUI), in its final report 87, provided an overview of the challenges generated by the return of immigrants in Maghreb (including Morocco, Algeria and Tunisia) in terms of reintegration and development. Because of the difficulty to trace the path of reintegration of the return migrants by statistics means only - which anyway provide estimations regarding their territorial distribution and their total number - the project made use of interviews as the main instrument of the research. The interviews concern about 1,000 return migrants of whom almost ¾ voluntary returnees. In the light of the research results, the main variable for determining the patterns of social and professional integration was the nature of the return, namely the distinction between migrants who have voluntarily decided to return and those who have been constrained to. As we can see, in this study, the concept of “voluntary return” does not correspond with the concept defined at EU level according to which the voluntary departure is however the compliance with a return provision. Furthermore, it is difficult to talk about sustainability in the case of forced return, as there is no free choice of the migrant to return in his own country of origin/transit, regardless of the high costs of the removals and returns faced by the countries of destination. The involuntary interruption of the migration cycle - be it determined by unfavorable circumstances or the compliance with an expulsion order - has a negative impact on the process of reintegration. The critical situations concerning the forced return are especially related to the way expulsions are executed, the duration of the procedures, the crowding in the CIE. The data reveal that more than a quarter of respondents subjects to a forced return declare not to have a job; this data decreases to 6,2% in the case of voluntary returnees. The desire to re-emigrate, sustained by immigrants‟ knowledge of the country of immigration, seems to be stronger among those who did not return and meet difficulties of reintegration. Among these two groups (voluntary and involuntary returnees), the level of education varies as well, those who have chosen voluntarily the return having lower levels of education. Regarding the age of the returnees, according to the study, the average age of the returnees is 46 years and the youngest are the ones who did not choose voluntarily to return. Other important elements, relevant for the process of reintegration and revealed by the study, are the conditions of reception provided by the country of return (be it the country of origin or transit) in particular connection with the political and economic situation, which are as 87

Cassarino Jean-Pierre (edited by), Return Migrants to the Maghreb Countries: Reintegration and Development Challenges, EUI, Florence, 2008.

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important as the duration and nature of the migratory experience. The fact that for almost half of the voluntary returnees the decision to return has been a result of a positive evaluation of the economic situation in the country of return, comes to confirm this tendency. In the analysis of reintegration the duration of migration experience has been considered a variable which explains the socio-economic integration. The optimum duration of the migratory process cannot be determined a priori, but is deeply correlated to both perception of the migrant on the contexts of reference or the changes and reforms in the country of origin (for example the availability of the domestic market in front of private investments). In this respect, it is very significant that only 12% of the respondents reported being unemployed before emigration and the most recurrent reason for emigration was the search of better living and working conditions. As a matter of fact, the migration seems to have improved the economic situation of the returnees, which may be measured in terms of professional advancement. Since the early nineties, the link between return migration and development has been subject of dialogue and confrontation among international and regional bodies. The number of researches88 increased, underlining the contribution of migration for various actors involved: the country of destination, the country of origin as well as the migrant itself. The connection between remittances and development or, in other words, between the emigrated communities and the countries of origin has been strongly emphasized. Nevertheless, the return migration starts to have its own importance especially due to the increasing interest in circular migration and temporary work schemes. The return of the migrant may be associated with a return in terms of cash contributions to the economic system and “know how”, especially if used to create new opportunities of development and modernization of the country of return. The return may provide a solution to the problem of “brain drain”, that is the emigration of high-skilled nationals, especially in the health sector, which leads to the pauperization of the country of provenance of the flow. Anyhow, the return, as well as the remittances, are meant to complete and not to replace the development policies. Still, the return itself does not provide development. As a matter of fact, the impact of the return flow may lead to unwanted effects not only for the migrant itself but also for the county of return, especially when the return process is not properly managed or when the economic, political and social level of the country of origin does not allow the integration of the returnees within the socio-economic structure. This is what emerges from the research of Van Houte e Davids89 on the sustainability of return migration and on its impact on development. This research is based on two studies: a pilot study of 2006 on 131 voluntary and forced return immigrants from Western Europe towards Angola, Guinea, Bosnia-Herzegovina e Somalia, and a monitoring study of 2007-2008 on voluntary assisted return on 178 return migrants towards Sierra Leone, Togo, Armenia, Bosnia-Herzegovina, Afghanistan and Vietnam. Within the study, the return concept is associated with a process of identification of the migrant with the society which welcomes him, which allows him to participate socially and economically, having developed the sense of belonging to that community. When the country is characterized instead by a strong social instability, associated with a weak economy and a fragile welfare (situation which prevails in post-war periods), a strong pressure of return migration can generate conflicts with the population already present on the territory. And this situation is even more acute when migrant‟s return is not the result of his free choice. The difficulties and the 88

Newland Kathleen, A new surge of interest in migration and development, Migration Policy Institute, February 2007; OECD, International Migration Outlook, 2007, Paris, 2007, pgs 120-123; OECD, Policies for migration and development: a European perspective, Paris, 2006. 89 Van Houte Marieke, Davids Tine, Development and Return Migration: from policy panacea to migrant perspective sustainability, in “Third World Quarterly”, vol. 29, no. 7, 2008, pgs 1411-1429. For further information see also: Black Richard, Saskia Gent, Sustainable return in post-conflict context, in “International Migration”, 44 (3), 2006, pgs 15-38.

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bewilderment inherent in the process of reintegration, in the absence of structured services intended to satisfy the needs of the returnees, are cushioned by the social network which helps the returnees to find their own place within society. The process of identification of the return migrant with the society that receives him, depends also on the type of migration experience that precedes the return, and especially on the living conditions in the country of destination: the more restrictive the living conditions in the country of destination are, the more difficult migrant‟s (re)identification with the country of return will be. The difficult challenge posed by the return migration, according to the research, could be better handled by assisting the migrant before and after the return, so that he would be continuously supported in the creation of sustainable living conditions. Another significant element that influences the level of integration of the returnee and, therefore, the sustainability of the return is the accurate collection of data and resources during the period that precedes the departure, fact confirmed by many other studies as well. The preparation should not regard only the migrant‟s will but also the feeling of being ready to leave the country, in order to be conscious of his choice to return 90. In this context, the assistance for the departure acquires major significance when the return comes as a result of an obligation to leave the country. The resources required for the preparation could be both material (for example economic support) and immaterial (for example human and social capital, information about the opportunities in the country of return). In the same direction, IOM, taking advantage of its experience in the field of management of return projects, notices that the return is more sustainable whenever the decisions of the migrant is taken into account and when it is preceded by a sufficient time for the preparation of the return itself. If instead of voluntary return we consider the forced return, we should add that an eventual stigmatization of the returnee, especially when derived from misleading simplifications that associate him with a criminal, may have negative repercussions on his reintegration in the country of origin/transit. The assistance to the voluntary assisted return provided by IOM programmes continues in the country of return as well, through different interventions aiming at the socio-economic reintegration of the beneficiaries of return programmes. Among the objectives aiming at reintegration may be identified professional courses and trainings, micro-entrepreneurial projects as well as more immediate goals like the reconstruction or renovation of the returnee‟s house, the acquisition of professional equipment and necessary goods and medical assistance. The IOM staff competent for individual cases elaborates an integration plan for the beneficiary, followed directly by IOM in collaboration, where possible, with other international organizations, non governmental organizations or local administrations. The monitoring consists in evaluating the implementation of the reintegration plan, therefore a percentage of the total amount is granted for the implementation of the first planed actions; the rest is granted instead after the presentation of the documentation regarding the expenses required for the completion of the reintegration plan. The final phase consists in the monitoring or the verification of the effective reintegration of the returnee. The MIREM study comes to underline the limited awareness and commitment in supporting the reintegration of the returnees, and this to the detriment of the possibilities to contribute at country‟s development. Two sets of factors may explain this: 1) the countries of origin consider migration as an escape valve for the domestic pressure on the labor market and for the resulting high unemployment rate; 2) the countries of destination are focused on effective actions of control of the territory and its security. The support and the assistance are intended as useful instruments not only for the major protection of migrants‟ rights but also for the positive effects for the sustainability of the return itself. The enlargement of the base of beneficiaries of assisted voluntary return, including even 90

Cassarino Jean-Pierre, Condition of Modern Return Migrants – Editorial Introduction, in “International Journal on Multicultural Societies”, 10, 2008, pgs 95-105.

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irregular migrants on territory for example, could turn, on log term, into a winning and sustainable strategy. Going from “the bottom” perspective that tends to focus on individuals‟ migratory experience, to “the top” perspective that focuses on the structural elements of the countries of reference and their relationships, we shall not underestimate the challenges posed by the return, in terms of reception and integration capacity of the countries of transit and origin, usually countries with a strong migration pressure or still in post-conflict situations. Moreover, if on one hand the return of the migrants might represent a potential development in terms of qualified human capital, on the other hand this implies the decrease of the remittances flow. According to International Organization for Migration, which in 2008 dedicated the International Dialogue on Migration forum to the theme of return migration as challenge and opportunity, this theme calls for a global approach which should involve all the actors concerned and every single phase of the return. This cooperative strategy goes in two directions: one regarding the bilateral cooperation between the governments, and the other regarding the active engagement of the stakeholders, namely the local communities, the Diaspora and the civil society. Therefore, the effectiveness and the success of the return depend on the cooperation between the countries of emigration and return as well. This may be achieved through regional and bilateral agreements of readmission, cooperation for the identification of the migrants and release of the documents for the trip and strengthening of the receptive capacity of the countries of origin. As emphasized by international bodies as well 91, the cooperative approach rather than the unilateral one allows a more effective and productive management of the phenomenon. In the Italian case, the bilateral approach has led to optimum results, which is proved by the decrease of the irregular flows from Albania. The bilateral relationships are part of the national migration policy and they concretize for example in granting favored quotas within the annual flow decrees as an incentive for the complete collaboration of the countries of origin 92, and may strongly influence the readmission policy as well. The Law no. 189/2002 emphasizes the bonds between programmes for interventions with humanitarian goals concerning non EU countries and the engagement of these countries in preventing irregular emigration, human trafficking and the irregular return in Italy of the expelled citizens. Since 1996, Italy has concluded various bilateral agreements financed for the readmission on the territories of origin or transit of irregular immigrants and for the cooperation between police forces. To these we may add the agreements related to immigration and border control. The obligation of readmission concerns the persons who do not meet (or no longer fulfill) the conditions required for entry and residence in the contracting states in accordance with different procedures depending on the agreements, some of which do not undergo the approval of the Parliament but a simplified procedure, as indicated in Art. 9 (4) of Law no. 40/199893. Italy has currently 30 bilateral agreements of readmission (Third countries: Albania, Algeria, Bosnia Herzegovina, Croatia, Egypt, Philippines, Georgia, Macedonia, Morocco, Moldova, Nigeria, Serbia, Sri Lanka, Switzerland, Tunisia. UE States: Austria, France, Greece, 91

IOM, International Dialogue on migration 2008. Return Migration: Challenges and Opportunities, Geneva, 10 November 2008. 92 Within the seasonal flow decree of 2009, the quotas of EU foreign nationals admitted in Italy have been subdivided between various countries, among which the signatory States or States that would sign cooperation agreements in matters of migration: Tunisia, Albania, Morocco, Moldova and Egypt. 93 Art. 11 (Law no. 40/98) provides that the Ministry of Foreign Affairs and the Ministry of Interior would promote necessary initiatives in agreement with the countries concerned, in order to hurry the completion of the verifications and the release of the documents eventually necessary in order to improve the efficacy of the provisions stipulated within the Consolidated Text and for the mutual collaboration for counteracting illegal immigration. In this purpose the collaboration agreements may provide for the transfer, free of charge, to the authorities from the countries concerned of mobile goods and equipments specifically chosen within the limits of the functional and financial compatibility as defined by the Ministry of Interior, in agreement with the Ministry of Finance and Economic Planning and, when dealing with goods, equipments of services supplied by other administrations, with the competent Ministry”.

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Spain, Cyprus, Estonia, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, Hungary, Bulgaria, Romania). There are then cooperation agreements between police forces in the field of irregular immigration and human trafficking that concern in particular countries from the Balkans, North Africa, Sub-Saharan Africa and the Middle East such as: Albania, Bosnia Herzegovina, Serbia and Montenegro, Romania, Tunisia, Libya, Egypt, Nigeria, Lebanon, Syria and Turkey. Over the last years the network of liaisons officers abroad has been reinforced, which lead to the strengthening of the Balkan area. Negotiations are in progress with other countries among which: Ukraine, Lebanon, Syria, Turkey, Senegal and Columbia. It is worth mentioning especially during the last years the conclusion of the readmission agreement with Egypt (January 2007), the ratification and implementation of the cooperation agreement with the Kingdom of Saudi Arabia on counteracting criminality (November 2007), the conclusion of the bilateral agreement with Slovenia on the trans-border cooperation on security and counteracting irregular immigration (August 2007), the ratification and the implementation of the agreement with Bulgaria on the transfer of the sentenced persons subjects to measures of expulsion or accompaniment at the border (March 2008). A strategic importance, even if subject to heated controversies, is given to the collaboration with Libya 94, considerably strengthened during the last years, culminating with the development of the diplomatic relationships between the two states, initiated in 2000 with a cooperation framework agreement on counteracting organized criminality and trafficking of illegal drugs and irregular immigration. In December 2007 an agreement on the control of irregular migration was signed, recovered then by friendship and collaboration agreements undersigned at Tripoli in August 2008 and finally ratified by the Italian parliament in February 2009, by Law no. 7/09. The objective of a more efficient migration flows control encompasses concrete and efficient initiatives, such as the delivery by the Italian govern of six patrol boats to Tripoli intended to counteract the irregular flows from that country (which is the country of provenance of most of the irregular immigration in Europe, coming also from Egypt and Morocco, especially after the increase of the controls in Straits of Gibraltar and the closure of the sea routes from Suez Chanel and Turkey) and to carry out joint patrols along the Mediterranean coast. The cooperation pays special attention to counteract and prevent irregular migration and does not explicitly provide for the readmission of third country nationals in Libya. However, the aspects regarding the treatment that return immigrants get in Libya and their possibility to benefit from international protection remain problematic. In terms of multilateral cooperation, apart from Italy‟s engagement in EU actions 95, we should note a significant step ahead in the adaptation of the Italian law at the counteract of irregular immigration, that is the ratification at 24 th of June 2009 of the Prüm Treaty, undersigned at 27 th of May 2005 by some countries of European Union (Germany, Spain, France, Austria, Belgium, Netherlands and Luxemburg) aiming at strengthening the trans-border police within the fight against terrorism, trans-border criminality and irregular immigration. A national database of DNA and of a correspondent central laboratory is therefore created for this purpose. Ultimately, in order to have a complete management of the return migration, two objectives must guide the migration policies: on one hand the effectiveness of the return interventions, namely the concrete implementation of return actions and on the other hand, the sustainability of the return, namely its long-lasting character. Especially the second element, which follows chronologically and randomly, is the essence of the return policy since it prevents the creation of a vicious circle which characterizes re-emigration. The sustainability cannot, however, ignore the individual experience before and after the return and neither the ways in which the return takes place, which would influence the process of reintegration in the country of 94

Pastore Ferruccio, Migrazione e relazioni italo-libiche. Come uscire da questa impasse, CeSPI Rome, June 2008; Coslovi Lorenzo, Brevi note sull’immigrazione via mare in Italia e in Spagna, CeSPI, Rome, January 2007. 95 Infra, chapter 3.

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return. Even if the assisted returns analyzed above may facilitate the stay of the returnees in the country of origin, their impact is limited as they involve a small percentage of returnees 96.

96

OECD, International Migration Outlook 2008, Paris, 2008.

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Conclusions: best practices and lessons learned

The present study allows the identification of those factors which, more than others, would influence the success of the return in the country of origin of the migrants, be it the result of a voluntary choice or the result of an expulsion provision. The efficiency of the return, in terms of sustainability, cannot ignore the reintegration of the migrant in the socio-economic structure of return country. This reintegration in the society of origin and in its economic structure becomes significant for avoiding the insecurity of the return and, therefore, an eventual failure and a loss for the destination country in terms of engagement of the authorities. The preparation for departure must aim at strengthening the effective wish to return, the feeling of being ready to leave the country, the awareness regarding the obstacles which would occur, all these being pre-conditions for a more sustainable return on long term. In the light of this analysis, Italy seems to engage itself in using completely the positive potentialities of the instrument of assisted voluntary return which, on one hand allows an easier return and on the other hand assure that the return of the beneficiaries is done in absolute compliance with the human rights and dignity of the individual, often already victim of social exclusion. The Italian legislation provides for specific measures of assisted voluntary return for certain more “vulnerable” categories of foreigners: asylum applicants, refugees, trafficking victims, holders of residence permits for humanitarian reasons or temporary protection, non accompanied minors and ex Dublin Convention cases. What actually lacks in the Italian context is the possibility to provide similar actions for irregular immigrants, inter alia taken into consideration by the European Fund for the Returns, for whom apply the sanctions provided by the Consolidated Text (Lgs. Decree no. 286/1998). The experiences of several European countries have shown that the immigrants who tend to re-emigrate are rather the irregular immigrants since the forced return is perceived by the migrants and by the community of origin as a failure which leads to the desire to re-emigrate in the country they had to leave. In order to counteract irregular immigration there are two significant aspects: the legality of entry flows and the effectiveness the return flows. The rejections as much as the expulsions may acquire significant roles in counteracting irregularity, in terms of prevention and repression respectively. The action of rejection, the bilateral agreements on returns and the strengthening of coast patrolling represented for sure an obvious success regarding the demand of a direct action intended to counteract the impressive migration flow, in particular the irregular one, that generated, during the last years, security problems and an enormous burden for the state. Still, this immediate success cannot be considered long-lasting and decisive, since the migratory pressure is determined by other complex causes and requires a structured and organic policy of the countries of destination, which demands not only counteract actions but also a common and shared commitment of these countries in order to ensure an efficient return policy. The bilateral agreements with the countries involved contribute to the realization of this commitment. Italy has recently strengthened the relationship with the countries of the northern-shore of Africa in relation to both irregular immigration and border control and effectiveness of readmissions. Coming to the conclusion remarks, it is important to pay attention to the ideas derived from the positions taken by the European Commission and Parliament and by the international 54

organizations as well as by the most recent studies on migration which regards more and more all the Member States. On one hand, despite a certain control of the demographic trend, the developing countries know a surplus of labor which they expect to be placed in the developed countries and they are disappointed to see that the chances of integration in those countries have decreased. On the other hand, the developed countries, even if continue to need a constant influx of foreign workers, feel almost besieged seeing that the number is above their expectations. Therefore, a prior importance acquires the necessity of global actions which should involve all the actors who participate at the phenomenon of migration towards Europe, for which Italy represents one of the entrances. The passage that leads to a conscious and complete vision on migration phenomenon, able to enrich and harmonize the international cooperation and, in the same time, to make the European migration policy more efficient and stable for all, stands precisely in the specificity of these structures (EU, Member States, Ngos) and in the socialization of their competences. The EU indications for the management of the irregular immigration sustain a new framework of assisted voluntary returns which emphasize the strengthening of the voluntary ones and the inclusion of irregular immigrants among beneficiaries. The recent Directive CE/115/08 and the creation of the European Fund for Returns represent the normative framework and offer a financial support for promoting the implementation of such policy in the Member States. In this context, the indications of the quoted “De Mistura Report” on the encouragement to use assisted voluntary return also for irregular foreigners, are still valid. The rapport, as well confirmed that “the first step for a proper management of migration phenomenon should be the creation of more sharp and realistic paths of regular entry, for both work and family reasons and international protection reasons. It would be possible, in this way, to prevent irregular entries and to decrease the number of foreign nationals who - often with real sacrifices and risks for theirs lives - try irregular ways of reaching the country of destination”. The migration issue is an important element in the policies to be ruled at global level, but not the only one: it must be linked to factors of development in loco, global commerce, cooperation, investments and other factors. Still no one can deny that migrations are, for various reasons, a factor of development. Within the migration issue, the assisted returns acquire a positive function as well, since they may enforce the relationships between the developing countries and the developed countries. The assisted return, from an action that otherwise would limit itself to counteract, may thus turn into an incentive for development. The most careful considerations and the most advanced experiences have shown that the flow control can be combined with encouraging the development in the countries of return. This is the great objective to be followed attentively, especially because it would make release and assign substantial resources to the development.

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Ricci Antonio, Allargamento UE, nuove dinamiche e nuovi confini, in “Affari Sociali Internazionali”, no. 2, 2006, pgs 33-43. Ricci Antonio, I Romeni in Italia: immigrazione, radicamento e ritorno, in “Societatea reala”, special issue “Traiectorii migratore intre Romania si Italia”, vol. IV, 2006, Bucharest, pgs 25-53. Scalisi Antonino, Sicurezza: sulle impronte ai minori nomadi un conflitto con la Convenzione di New York, in “Guida al Diritto”, no. 29, 2008, pgs 8-9. Senato della Repubblica, La direttiva europea sui rimpatri, Dossier no. 6/DN, Rome, 2 nd July 2008. Servir, Rimpatrio: tornare a casa in sicurezza e dignità. Realizzare un rientro sostenibile, Roma, September 2007. Silvestrini Angela, I minori stranieri in Italia, in “Minori Giustizia”, no. 3, 2008. Sistema di Protezione per Richiedenti Asilo e Rifugiati, I numeri dell’accoglienza. Compendio statistico del Sistema di protezione per richiedenti asilo e rifugiati. Anno 2007, Rome, 2008. Sistema di Protezione per Richiedenti Asilo e Rifugiati, Moolaadé. Indagine sulla condizione delle richiedenti asilo, rifugiate e titolari di protezione umanitaria accolte nello SPRAR, Rome, 2008. Sistema di Protezione per Richiedenti Asilo e Rifugiati, Raccolta normativa in materia d’asilo, Rome, 2008. Sistema di Protezione per Richiedenti Asilo e Rifugiati, Rapporto annuale del sistema di protezione per richiedenti asilo e rifugiati 2007/2008, Rome, 2008. Stile Annalisa, Espulsione dello straniero e processo penale, in “Giurisprudenza costituzionale”, no. 2, 2006, pgs 1336-1342. Stocchiero Andrea, I nodi dell’evoluzione della cooperazione decentrata italiana, Working paper CeSPI, no. 37, Rome, 2007. Tani Massimiliano, Stéphane Mahuteau, Migration, Returning and Working Choices, Mirem Analytical Report, Florence, 2008. UNHCR, Global Appeal 2009 Update, 2008. UNHCR, Global Report 2007, 2008. UNHCR, Statistiche sulle richieste d’asilo presentate nei paesi industrializzati 2008, Geneva, 2009. Urso Giuliana, Per una strategia globale: migliore migrazione e maggiore sviluppo, in “Affari Sociali Internazionali”, no. 3-4, 2008, pgs 79-88. Van Hout Marieke, Davids Tine, Development and Return Migration: from policy panacea to migrant perspective sustainability, in “Third world quarterly”, n. 29/2008, pgs 1411-1429. VV.AA., “Decreto sicurezza”: tutte le novità, IPSOA, Milan, 2008. VV.AA., Return SPNR. La gestione dei processi di rimpatrio, Nuovagrafica, Sassuolo, 2007. Vassallo Paeologo Fulvio, Obblighi di protezione e controlli delle frontiere marittime, in “Diritto, immigrazione e cittadinanza”, no. 3, 2007, pgs 13-34. Viganò Francesco, Vizzardi Matteo, “Pacchetto sicurezza”ed espulsione: intenti legislativi e vincoli europei, in “Diritto penale e processo”, no. 7, 2008, pgs 813-816. Vizzardi Matte, Illecito trattamento del clandestino: la legge non consente “spirali di condanne”, in “Diritto penale e processo”, no. 12, 2006, pgs 1538-1545. Zanfrini Laura, Kluth Winfried, Policies on Irregular Migrants: Italy and Germany, Consiglio d‟Europa, Strasbourg, 2008. 61

Statistic appendix Bilateral readmission agreements in Italy State Albania Algeria Austria Bosnia e Herzegovina Bulgaria Cyprus Croatia Egypt Estonia Philippines France Georgia Greece Latvia Lithuania Macedonia / FYROM Malta Morocco Poland Serbia Moldova Nigeria Romania Slovakia Slovenia Spain Sri Lanka Switzerland Tunisia Hungary

Readmission agreements Signed Came into force 1997 1998 2000 2006 1997 1998 2004 2007 1998 1998 2002 2003 1997 1998 2007 // 1997 1999 2004 2005 1997 2000 1997 // 1999 2001 1997 1997 1997 1998 1997 1997 2001 2002 1998 // 1991 1994 2003 2005 2002 2004 2000 // 1997 1998 1998 1999 1996 1997 1999 2001 2001 2001 1998 2000 1998 1998 1997 1999

SOURCE: EMN ITALY/ The Presidency of the Council of Ministers , June 2008

62

ITALY. Landings of foreign citizens (1998 - 2008) Year

Apulia

Sicily

Calabria

Sardinia

Total

1998 1999 2000 2001 2002 2003 2004

28,458 46,481 18,990 8,546 3,372 137 n.a.

8,828 1,973 2,782 5,504 18,225 14,017 13,594

848 1,545 5,045 6,093 2,122 177 n.d.

n.d. n.d. n.d. n.d. n.d. n.d. n.d.

38,134 49,999 26,817 20,143 23,719 14,331 13,635

2005

38

22,824

176

16

23,054

2006 2007 2008

243 61 127

21,400 16,875 34,540

282 1,971 663

91 1,548 1,621

22,016 20,455 36,951

SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on Ministry of Interior data ITALY. Rejections, expulsions and returns (1999-2008) 1999

2000

2001

2002

2003

Border rejections

48,437

42,221

41,058

43,795

27,397

Expelled/Readmitted

23,955

23,836

34,390

44,706

37,756

Total removed persons

72,392

66,057

75,448

88,501

65,153

Non-compliants

40,489

64,734

58,207

61,282

40,586

112,881

130,791

133,655

149,783

105,739

64.1

50.5

56.4

59.1

61.6

Tot. involved % removed on tot. involved

2004

2005

2006

2007

2008

Border rejections

24,528

23,878

20,547

11,099

6,358

Expelled/Readmitted

35,437

30,428

24,902

15,680

17,880

Total removed persons

59,965

54,306

45,449

26,779

24,238

Non-compliants

45,697

65,617

78,934

47,983

46,391

105,662

119,923

124,383

74,762

70,629

56.8

45.3

36.5

35.8

34.3

Tot. involved % removed on tot. involved

SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on Ministry of Interior data

63

ITALY. Transited persons in CIE since 1/1/05 until 31/12/07

CIE Agrigento – Lampedusa Bologna - Ex Cas. Chiarini Brindisi (Restinco) Caltanissetta Catanzaro (Malgrado Tutto) Crotone Lecce "Regina Pacis" Milano (V. Corelli) Modena (la Marmora) Ragusa (via Colaianni) Roma - Ponte Galeria Turin (v. Brunelleschi) Trapani Total

TOT. 1,197 519 217 1,141 687 308 645 1,042 389 35 2,244 1,003 220 9,647

Political asylum 0.3 3.3 0.9 1.1 1.2 1.3 0.5 1.3 0.5 11.4 1.1 0.5 2.7 1.1

Returns Released 45.7 31.1 40.7 24.1 28.1 45.2 62.4 25.2 50.7 38.3 20.1 61.4 46.8 35.0 55.9 29.8 36.2 49.6 5.7 45.7 34.5 38.9 65.0 15.3 29.1 42.7 46.2 33.2

Absconded 5.7 6.2 1.8 4.6 1.0 1.0 3.9 0.3 2.6 2.9 0.4 1.0 8.2 2.5

SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on Ministry of Interior data

Non C.A.G. 6.3 15.4 6.5 3.0 0.0 0.0 2.0 3.9 3.1 8.6 7.2 6.4 2.7 5.2

Various reasons Arrested Deceased 9.6 1.3 0.1 10.0 0.4 0.0 16.6 0.9 0.0 2.6 1.1 0.0 8.4 0.4 0.0 16.2 0.0 0.0 11.6 0.2 0.0 7.8 1.1 0.0 6.7 0.8 0.5 25.6 0.0 0.0 17.3 0.6 0.0 10.4 1.5 0.0 10.5 4.1 0.0 10.9 0.9 0.0

ITALY. Transited persons in CIE in 2008

CIE Bari - Palese Bologna - Ex Cas. Chiarini Caltanissetta

TOT. 1,238 854 800

Political Asylum Repatriated Released 10.0 40.2 36.3 3.4 43.3 33.0 20.4 27.3 33.1

Absconded 2.3 1.2 5.3

Non C.A.G. 1.0 12.8 2.3

Various reasons Arrested Deceases 5.7 4.4 40.2 5.2 1.2 43.3 10.9 0.9 27.3

Catanzaro (Malgrado Tutto) Gorizia - Gradisca D'Isonzo Milano (Via A. Corelli n.28)

773 1,198 1,360

38.3 53.8 2.0

22.5 14.8 54.2

26.9 16.4 31.1

1.8 1.9 0.7

0.6 0.8 5.5

9.6 12.0 5.7

0.3 0.2 0.8

22.5 14.8 54.2

Modena (La Marmora) Roma (Ponte Galeria) Turin (Via Brunelleschi)

447 2,653 967

0.4 9.5 4.0

51.7 45.1 61.6

34.7 30.5 19.6

3.1 0.5 0.0

4.0 7.8 3.9

5.8 6.1 9.3

0.2 0.6 1.3

51.7 45.1 61.6

249 10,539

4.4 15.1

49.8 41.0

32.9 29.0

0.8 1.5

2.4 4.7

8.4 7.6

1.2 1.1

49.8 41.0

Trapani (Serraino Vulpitta) Total

SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on Ministry of Interior data

ITALY. Assisted voluntary return beneficiaries through “Azione di Sistema” and International cooperation (2001-2009) Year I Year II Year Year IV International Cooperation TOTAL (2001 (2003III (2005-2006) (2007-2009) 2002) 2004) (20042005)

Albania Algeria Afghanistan Angola Argentina Bangladesh Belarus Bolivia Bosnia Herzeg. Brazil Bulgaria Cape Verde Chile China Colombia Congo CIS Cuba Egypt Ecuador Estonia Ethiopia Philippines F.Macedonia Ghana Guinea Bissau India Yugoslavia Lithonia Liberia Libya Lithuania Mali Morocco Mauritius Mexico Moldova Nigeria Panama Pakistan Paraguay Peru Poland Czech Rep. Domin. Rep.

Traffic king 1

5

Humanita rian cases 1

Tot al 2

1 1

1 1 1 0 4 5

Traffic king

1 3 1

8

5

7

3 4

1 1 2

1

10 13

2 1

Humanita rian cases 1 1 1 1 11 5

Tot al 1 1 1 1 12 5

5

5

14 3 1 2

24 16 1 2

1 1

1 1

1 1 11

1 1 11

2 2 8

2 2 1 8

10

13

1 2

1 2

1 12 1 1 5 12 1

1 13 1 1 6 31 1 1

5 2 1 1

5 3 1 1

2

1

1

1

1 1 1 1 1

1 1 1 0 1

1

1

3 1

3

2 1

11

3 10

3 11

8

1 5 2

1

1

2 4

2 12

1 2 1

1 3 1

1 19 1

1

8 1 1 1 12 6 4 6 0 28 41 1 4 1 1 1 2 1 1 12 1 2 2 1 9 1 14 3 2 1 3 2 1 13 1 1 25 64 1 1 1 8 11 3 1

Romania 24 52 46 50 43 93 51 Russia 3 1 3 4 3 Senegal Serbia Slovakia 3 2 1 1 Somalia Sri Lanka Thailand 15 15 Tunisia Turkey Ukraine 12 5 2 3 4 7 6 Hungary 1 Uruguay 1 2 2 1 Uzbekistan 3 1 1 2 1 Yemen 91 75 113 TOTAL 80 80 78 166 SOURCE: Caritas/Migrantes Immigration Statistic Dossier. Calculations on IOM data

51 1 4 8

102 4 4 8

1 2

1 2

11 1 8

11 1 14

8

9 1 1 336

1 223

317 11 4 8 6 1 2 15 11 1 40 1 12 6 1 740