Foreigners and Immigration: Can people condemned obtain the release or the renewing of the permission of staying in Italy

As well known fact, the Bossi-Fini law provided that people condemned for serious crimes, concerning drugs traffics, sexual arrassing, illegal imigration or prostitution cannot stay in Italy and cannot renew the permission of staying.

The application of this principle is automatic and it is enough the existence of a jail sentence for one of the crimes as above described to impede the release or the renew of the permission of staying.

However Rex Law can’t help but asking if is not only morally but also ask Eppure Rex Law legally correct to provide an automatic system to deny the permission of staying’s release/renew, based exclusively on the existence of sentences, regardless of actual dangerousness of the immigrant.

According to my point of view, the automatism as above descrive should be reviewed, even in light of recently issued principles expressed by the European Justice Court, pursuant to it’s not possible to proceed with the expulsion of the foreigner from the territory of an European Country if it’s not ensured by a Judge the objective fact that the foreigner person represents a menace for the society.

It follows that the expulsion of the foreigner condemned for above described crimes is possible only in presence of law and order’s reasons, whose existence must be, as previously told, ought to be checked on by a Judge.

This principles were taken in by TAR of Lombardia (Decision issued on april 16th 2008), which stated that new elements come in must be considered in sight of the release or renew of permission of staying, although the jail sentence previously occurred.

Moreover, the Costitutional Court, with decision 27/4/2007 n. 143, according with a previous decision of the Consiglio di Stato (Supreme Administrative Court) 7/6/2006 n. 3412 stated that the regulation of immigration must be read in light of the European Directives 2003/109/CE and 2003/86/CE.

The decision of the Supreme Administrative Court stated that, although the presence of an objective obstacle to the renewing of the permission of staying, represented by a jail sentence, must be given relevance to the come in circumstance that new positive elements occurred in the foreign person’s life who is not an actual menace for the society and has found a job, conducting a regular life.

To be true, in the administrative proceeding, new facts are not usually considered and the decisions are automatically taken in light of the state of facts without considering in any way come in circumstances newly occurred.

Nonetheless, can’t be denied that the Public Administration’s decisions can be appealed and in the administrative sue is checked on the whole claim and the whole demand and not only the appealed provision.

It follows that the most recently issued decisions of the Administrative justice underlined that on subject of permission of staying renewing or release refusing, it’s the law itself (art. 5 law 286/1998) to oblige the Public Administration to check on newly occurred in come new elements which allow the release or the renewing of the the permission of staying, of course if the foreigner person underline the presence of this new elements (cfr. Consiglio di Stato, Sez. VI - 6/5/2008 n. 1990).

In fact, if the criminal behaviour of the foreigner was only episodic – like a once in a life time mistake – and the foreigner has found a job since the moment of his entrance in Italy and after his jail sentence he lived in peace and tranquillity without troubles, showing he is at the time reliable and totally integrated in the society, nothing should impede the renewing or the release of the permission of staying.

For further information contact Rex Law to the following email address: renatomusella@hotmail.com.