Immigration and Extradition Lawyer in Rome
You shouldn’t be contradicted if you say that the first thing to be done for an immigrant entering Italian territory, is the search for an immigration law specialist lawyer. In fact, the current events show that there is nobody more undefended and lost than a stranger in a strange land despite of concepts like world citizenship, peoples’ equality, liberty and tolerance of the immigrants, spread from the dawn of Democracy as not surprisingly evidenced by Socrate, who used to say: “I am not an Athenian or a Greek, but a citizen of the world”.
Indeed, nothing more opposite to the global citizenship’s concept is happening now, given the immigrant forced to deal with an intricate legal framework that governs immigration in Italy.
Every Nation has its own peculiar immigration law context, tightened by international treaty and statutes principles as well as by customary internal rules entailing social, politic and economic circumstances.
The chance to find an immigration law specialist lawyer is essential for every person entering the State, and should be supported in his research by the Centres for First Assistance. Undeniably, only a specialized legal entitled to plead before courts will guarantee the immigrant with protection for his fundamental human rights, ensuring the correct application of all the rules establishing who is allowed to enter the Italian country and for how long.
Law Firm for Immigration Law in Rome
What the immigrant most frequently asks, when determined to settle in Italy, is somebody on which he can trust to realize and defend his main objectives: to stay, to work and to acquaintance.
Obviously, the immigration law specialist lawyer is a perfect match. Sometimes working side by side with the Centres for First Assistance and Italian Bar Associations in those regions handling large flows of immigration, other times individually working, but always an indispensable help providing both legal advice and administrative assistance, for example filing claims and motions or making available translation of documents in the immigrant’s language.
A leading role not only in the first assistance for the irregular immigrant, the law professional can endorse any need of the foreign person going to start a business, real-estate trading, renewing residence permit or dealing with criminal related issues.
The most relevant legal provisions concerning migration and conditions of third-country nationals in Italy, are gathered in the Legislative Decree no. 286, July 25th, 1998 (Unified Text on measures concerning immigration and norms on the status of foreign citizens) as modified and integrated, that addresses to multiple legal aspects from administrative, civil and penal areas that, along with other international rules set to regulate state-to-state cooperation on migration, are all appropriate for the protection of the migrant and definitely manageable by the immigration law specialist lawyer.
Residence Permit for Employment Purposes
The migration flows toward Italy for work, as regulated by Legislative Decree no. 286, July 25th 1998, are narrowed by a pre-set maximum number of accesses, or quota, determining how many non-EU citizen are admitted as non-seasonal employed workers and self-employed workers, plus some requirements involving the job or, if the case, the prospective employer which must commit himself to hire the immigrant worker on a regular contract for a position otherwise not available in the local job market, to cover the costs of repatriation and to transmit any relevant modification of the job contract.
Hiring a not regular immigrant can be heavily prosecutable as a crime, on the purpose to avoid abuse of the immigrant’s work, whose irregular position can easily open to mistreatments. Moreover, the rules concerning immigration for work are also applied to foreign entrepreneurs wishing to start a new firm or a business in Italy, or to high-level professional aiming to qualified careers, since every migrant must meet the same established requirements to obtain the Entry Visa for Italy.
Job may be not the most important reason that bring a person to Italy, but can be the ultimate goal set by the immigrant that aims to accomplish a course of studies.
Foreign and irregular immigrant minors are always promptly provided by State with basic education, being it an inalienable right. But, as well as it happens for the immigrant seeking employment, enrolling High Educational courses of study is allowed on the basis of a maximum number of non-EU citizens fixed by Decree, when not available exceptions for particular scientific reasons. The student requesting the Visa for study must give proof of Italian language proficiency, of having made arrangements for appropriate accommodation in Italy and of sufficient financial resources to guarantee his maintenance throughout the study experience, at least by winning scholarships.
Strictly related to the right of study is the acknowledgment of foreign titles according to their function: registering for unemployment benefits and job seeking, open recruitments, access to bars of professionals. Equality spirit is applied not only to provisions ruling the work and the study within Italy, but to the ones about sociality too.
Pursuant to the combined provisions of the two Legislative Decrees no. 286, July 25th 1998 and no. 5, January 8th 1997, the regular immigrant that is going to settle in Italy is allowed to reunite with his closed family still abroad and economically at his charge, if he has an appropriate accommodation and an income not under social allowance limits. Application for Family Reunion Visa involves Public Administration’s authorization procedure throughout Prefectures, in order to establish the recurrence of all the requested requirements.
Immigrant Due to Necessity: Refugee Status
Family Reunion Visa can frequently be delayed, denied or submitted to discretionary concerning family relationships or existing ties with the Country of origin, showing immediately the need for legal assistance of the immigrant. Pursuing to international conventions, when an immigrant claims well-founded fear of being victim of persecution, torture and war in his own Country can lodge the refugee status and obtain a special residence permit until a Commission would decide about his right to go under international protection.
The immigration law specialist lawyer’s assistance is highly recommended during the preliminary phase of the asylum claim set before the Immigration Office of the Police (i.e. Questura) but, uppermost, before the Territorial Commission for the recognition of refugee status that will decide either to grant the immigrant with the refugee status or not.
Indeed, summoning before the Commission implies hearing the asylum seeker and exploiting every circumstances that may confirm the fear of persecution, so that the lawyer will provide the immigrant with adequate defence.
If the application is rejected, to avoid the order of deportation, the immigrant by means of his lawyer can appeal to the Ordinary Court of Law with territorial jurisdiction or ask the President of the Territorial Commission to re-examine the application.
Immigration related issues need the extrajudicial assistance of an immigration law specialist lawyer, primarily for the protection and recognition of important juridical positions.
Let’s think about all formalities for entering into benefits and exemptions ensued to accommodation, public expenditure and, most of all, to remain in the territory on a regular basis, assuming whether residence or whatever permit is more suitable to the circumstances.
Non-Contentious Legal Advice and Assistance
Extrajudicial assistance should be assured to the immigrant for the subsequential changes, extension and renewal of their Visas as well as for the formal legal notice to the Immigration Office at the Ministry of the Interior in case of delay of the application.
Citizenship and recognition of other personal rights are certainly the most important issues related to immigration because they make the immigrant on the same level of Italian citizens jure sanguinis.
In fact, the lawyer will carry out the whole procedure to ascertain or claim the citizenship until its declaration or deal with the formalities for the recognition of foreign marriages and legal decisions issued by foreign Courts, concerning international adoptions and separations.
As for the penal extrajudicial assistance, the lawyer will provide with application for formal rehabilitation and extinction of criminal liability to the purpose of the residence permit, up to filing a claim against the expulsion order issued after a crime.
Civil and Administrative Proceedings Before the Regional Administrative Court (TAR) of Rome
Judicial proceedings issued against return decisions, whatever reason is behind the measure, are set on the summary civil judgement’s scheme, as provided for by Legislative Decree no. 150, September 1st 2011.
The legal framework applied is referred to Title I of Book IV, Chapter III bis Code of Civil Proceedings by which the trial opens with the filing of a claim complete with facts and law arguments within the timeline of thirty days from the notification of the forced return decision (60 if the migrant is eventually abroad) and follows with the audience of the immigrant, a fast evaluation of the documented reasons established by the parties and, in the end, the judicial order immediately enforceable.
The procedure is established on deadlines shortened to allow faster definition compared to the ordinary declaratory judgment, namely twenty days from the filing of the appeal.
The functional jurisdiction of the Judge depends upon the measure appealed, forcing the trial before the Court for disputes concerning the rejection of the UE citizens’ claim to stay in Italy and of their familiars too, the rejection of the asylum seeking apply or the denial to provide the Family Reunion or the residence permit for family reasons and, at last, against all the administrative authority’s measure concerning the right of family reunification.
Proceedings before the Giudice di Pace (i.e. an honorary, non-specialist, small claims judge) entail extra-UE citizens expulsions and the final judgment is assumed not appealable. The lawyer, whose presence during the hearings is set by law, shall request suspension of enforcement of the order, to avoid the forced return of the immigrant before the trial is set. Any supposed unfounded motive that led to the return decision – enforcement of a judgment of conviction, failure of conditions to stay, reasons of public order and national security – would be exploited within the claim against the rejection.
The proceeding is always funded on the adversarial system, guaranteed by the lawyer’s activities such as the assistance during the hearings and the immigrant’s audience, receiving notifications and assuring the immigrant’s linguistic right with the help of an interpreter.
Extradition Lawyer in Roma
The whole extradition procedure is set on articles 697 e seq. of Code of Criminal Procedure and begins with the submission of a request from a foreign State to the Italian Ministry of the Justice, to surrender a person for the enforcement of a foreign judgment, including a report with the decision depriving personal liberty or the judgment of conviction sentencing to imprisonment which has led to the request itself and with any other useful identification data that may determine the charged crime and the identity of the alleged criminal, in one with all the safeguards to ensure that the criminal act is not punishable with death penalty.
Request received, the General Public Prosecutor attached to the competent Court of Appeal shall order the appearance of the person concerned, who can express his consent to the requested extradition so to avoid the proceeding before the Court of Appeal. After the closing speech of the General Public Prosecutor, the Court of Appeal gathers the information and sets the hearing with the Public Prosecutor and the person concerned, whose lawyer can submit briefs and documents.
The decision whether the conditions for accepting the request for extradition are fulfilled, when favourable, can enclose the order of precautionary detention in prison or precautionary measures.
The favourable decision must be issued only upon serious indications of guilt otherwise the Court of Appeal shall deliver a judgment against extradition, and the conditions should not be considered fulfilled even when the proceeding to which the person will be subject do not guarantee the protection of his fundamental rights or when the judgment to be enforced contains provisions that do not adhere to the fundamental principles of the Italian legal system.
When the surrender of the person is requested for the enforcement of a foreign judgment of conviction sentencing to imprisonment or of another decision limiting personal liberty, the lawyer shall ascertain that the extradition will not be granted for a political offence, and that the person will not be subject to either persecutory or discriminatory offences and will not be sentenced to death for that crime.
Different to extradition for nature but with the same removal effect, is the return decision ordered by administrative or judicial authority that declares a stay of an immigrant to be illegal for reasons of public order and national security, for an irregular entry or following a conviction judgment in Italy.
The return decision itself can be bound to specific requirements but, indeed, peculiarities of the proceeding, immediate and based on discretionary, may involve an assessment of the immigrant personality, in order to value his social dangerousness.
When the return is ordered by the Prefecture, the decision can be motivated with only law based assumptions and not factual circumstances and the immigrant directly notified of the order without further communications of the administrative procedure set to start.
The immigrant regularly staying can ask for the ascertain or claim Italian citizenship if some conditions, provided by law, are met.
The procedure begins with the submission of an application to the Ministry of the Interior or to the Court, in compliance with their different competence due to marriage, iure sanguinis, residence, descent, acquisition and re-acquisition as claimed or requested to be ascertained. Not infrequently, the granting of citizenship is a matter of litigation, both for failure of the Public Administration to reply within the deadline of 730 days and for rejection of the application due to the failure of conditions requested by law and involving discretionary assessment under many aspects as public interest, social integration, tax regularity and income eligibility.
The immigration law specialist lawyer can then assist the immigrant to attain rehabilitation after sentenced to imprisonment for a crime, on the purpose of a successful application to Public Administration for acquisition of citizenship or residence permit. While rehabilitation works with automatic effects at the end of the conviction ex art. 178 of the Criminal Code, the extinction of the crime must be expressly ordered by the penal enforcement judge after a special application, following to an adequate observation timeframe, imposed to the convicted as a result of the plea bargain.
Defending the immigrant during the proceeding is carried out by the lawyer, most of all, with a fair trial and by allowing him to know the claims against him, his rights and duties. Therefore, in almost every case issued after an immigrant, whether criminal or civil, it is common to involve an interpreter as a technical adviser or for translating declarations, acts and any other important data related to the proceeding.
The consultant’s work can be referred to subjective data too, so far that it will be designed a psychiatrist to ascertain the immigrant’s violent behaviours or his attitude to be a threat for the public order or, again, when it is needed an assessment of the forced return experience to have compromised or not the immigrant’s existence.
Sometimes is called an expert witness a supervisory of one Monitoring Centre for the international socio-political context, for example when a judge is called to evaluate the political requirements of an international protection application.
Legal Assistance for Entry Visa
The entry flow in a State is always submitted to provisions by law, but the entire framework is often circumvented to evade border controls and entry quotas. Everyone entering without regular Visa or not complying with the time-line fixed for his voluntary return or, again, the expelled one violating the entry-ban, is an illegal immigrant and must face criminal and administrative charges. Until new provisions of the migration related crimes would be released, violation of laws concerning the entry, the stay and the removal of a foreigner can be punished with imprisonment even out of flagrante delicto (border imprisonment) and sentenced by immediate proceeding with detention up to 5 years. In milder cases, like the immigrant delaying his voluntarily returning, the Giudice di Pace can sentence administrative penalties but not imprisonment. Other administrative penalties are applied when the immigrant, even provided with regular Visa or residence permit, does not declare his arrival to the Questura within 8 days. The illegal migration framework has deeply changed due to extreme emergency’s situations. For example, recent law provisions have introduced the new offence of “crime of illegal immigration” criminally charging the immigrant irregularly staying in Italy, together with a new endorsement of repressive measures, so that the results were less removals and more detentions. The widespread criminality of illegal immigration produced an overcrowding of prisons and detention centres, so that progressively and by decisions of the Constitutional Court, the provisions of repression and detention measure were softened and replaced by administrative penalties, as it happens to the immigrant who is staying illegally in Italy, now removed by order of the Questura through accompaniment to the national borders by the police and no more by order of the Public Prosecutor after a trial, in compliance with the decision no. 369 of 1999 of the Constitutional Court.
Relevant rights of the immigrant
Each foreign person staying within Italy should enjoy the same constitutionally recognized rights of the Italian citizens.
Given the regularity of his juridical position, the immigrant must first be guaranteed with the right to reconstitute the family unit, by the entering of his family together or immediately after him.
The State provides adequate accommodation with the inclusion in the rankings of public housing and rent assistance, as long as they prove to be regularly occupied or registered on the employment lists. As it happens for Italian citizens, to the immigrants cannot be denied the right to health care that takes place through national health system, while the irregular migrants, at least to protect public health, can always accede to emergency hospital care. Among the rights recognized by the Universal Declaration of human rights and implemented internally by the Constitution, there is the one of study, for those foreign students with a regular permit, even specific for study purposes.
They are allowed to enrol every course, from basic up to PhD.
Minors, to whom even if irregular or unaccompanied cannot be denied the universal rights of the child, are guaranteed by the State with protection, education, health and participation, keeping them within the territory under the custody of Special Committees and, at the coming of major age and recurring certain conditions, they can obtain a residence permit.
The lawyer controls over the safety of the immigrant’s rights, and entrusts the compliance of the fair trial and effective remedy, especially when decisions are taken upon administrative discretionary assessments. If these rights are saved unalienable for immigrants regularly present, to irregular ones are recognized the most important rights such as access to health care, education, justice and freedom of worship.
the right to compensation in case of refusal of stay
The immigrant can stay in Italian territory and access to all the benefits described above exclusively on a regular permit. If not transient, the immigrant can get the EC for long period, valid indefinitely and without obligation.
However, should the authority decide for the failure of conditions, the application may be rejected or, when it comes to the renewal of the permit, revoked.
That happens, for example, when the foreigner is considered dangerous for public order and national security because charged with crimes related to sexual freedom, drug trafficking, illegal immigration. In the assessment of the requirements for a residence permit under the provisions of the Unified Text on Immigration, there are subjective circumstances to be considered, such as family and social ties with the country of origin, alleged danger to public order and national security or the magnitude of the sentence and the dangerousness of the charged crime. This means that, in the absence of objective parameters to whom the assessment should be linked, the decision may be inaccurate, even under the investigation undertaken by the police.
Therefore, if the erroneous assessment of the facts upon which the permit is denied, depends on Government's fault, for legally established violation of impartiality, propriety and in good faith principles, the refusal is unlawful.
That does not preserve, just before the appeal is claimed, the power of the authority to enforce the measure ordering the immediate removal of the became irregular immigrant. The erroneous removal, when the judge ascertained the related administrative order as illegal, is able to expose the Government to the risk of compensation claims from those immigrants forced to remove from their social context, family and work, suffering hedonic and economic damages. The Ministry of the Interiors can be sued before the Court for the compensation, in a proceeding ruled by the ordinary framework of the Code of Civil Procedure and external to the one issued for the appeal of the denial.
The compensation’s measurement depend on factual evidences such as loss of job chances and costs incurred for repatriation and retention in the country of origin as for the economic damage, while the hedonic one can be just presumed and valued discretionally by the judge, just considering the possible loss of requirements for the application of a new Visa. Many administrative Courts have repeatedly decided about the illegality of certain denials, stating over the case of an individual, unemployed because unable to work, but also self-sufficient by means of amounts received as compensation for suffering an accident ("must be considered illegitimate the non-renewal of a residence permit to an alien legitimately in Italy resident, motivated by the failure to carry out work if he, who has suffered a serious accident that made him unable to work with civil disability in high percentage, has been compensated for the damage, in a very substantial amount. There is no doubt that, in this case, he has an income (since that concept entails the amount of the compensations)" Central Administrative Court, sect. VI, 6/23/2008, no. 3149) or over the assessment of the immigrant’s dangerous behaviour based on judgment, even related to third parties, not yet definitive.
immigrant, Directorate for immigration and asylum, judge
Just after the entry, the immigrant, when irregular, is housed in Reception Centres managed by Directorate for immigration and asylum through Prefectures, in order to check their legal position and decide to apply for international protection or deportation, in the latter case, prior judicial validation of the detention order.
Asylum seekers are instead detained in special centres, Reception Centres for Asylum Seekers, where they will be provided with every essential services, managed by the Directorate that provides also information and assistance in submitting asylum requests.
The Directorate should act as an intermediary with the research of an immigration law specialist lawyer for the immigrant, which would ensure the access to a full defence right during the trial for the judicial validation of the detention order and now for its subsequent extension hearings before the Giudice di Pace, who has functional competence on detention orders at the Reception Centres, a stage where the contradictory is absent despite having been affirmed by the Supreme Court in its judgment No. 4544 of February 24, 2010: "To the judicial proceedings on the request of the extended permanence in a detention Centre of the alien, already subject to such a measure, shall be applied the same guarantees of the fair trial, involving the participation of the defender and the hearing of the immigrant, to whom this principles are explicitly provided for, pursuant to art. 14, fourth paragraph, of the legislative decree no. 286 of 1998, in the proceedings issued for the validation of detention within the firs framework, according to an interpretation constitutionally oriented of the following fifth paragraph referred to the extension, otherwise it would harm the immigrant violating art. 3 and 24 of the Constitution“.
