Saturday, October 09, 2010

Your right to a public defender paid by the State

The Italian Constitution guarantees the right to justice and to defence to all people regardless of race, sex, citizenship. This right is also recognized to foreigners whether they are in the country legally or not.

If you are accused of committing a crime, you have a right to choose a personal defence lawyer if you can afford one. If you cannot afford a lawyer, the Tribunal will appoint one to represent you free of charge.

·        Who has a right to a public defender paid by the State
In order to qualify for a public defender paid by the State, one must not have earned more than 10.628,16 Euros in the past year. Income tax returns can be used to prove this.

If the accused lives with a spouse or other family members, the income of all family members must be taken into consideration. If the family income exceeds 10,628,16 Euros, then the accused doesn’t have the right to a public defender paid by the State.

Who is not entitled to a public defender paid by the State

  •       Those charged with tax evasion. 
  •        Those already being defended by other lawyers.
  •        Those who have been sentenced for association with mafia,
  •        Those involved in drug and tobacco trafficking.

·        How to apply for a public defender paid by the State
The application can be submitted personally by the accused person to the Tribunal, by attaching a copy of a valid ID document. It can also be submitted directly by the client’s lawyer or the lawyer appointed by the Tribunal.

The application which must be undersigned by the accused, is to be submitted using a simple paper and must clearly indicate: 
·     The request for a public defender paid by the State.
·    The personal data and fiscal code of the applicant and of all nuclear family members.
        ·      Proof of income for the previous year (this can be self-certified) Proof of income    from abroad and a declaration from the competent consular authorities certifying that the information provided is true. 
        ·     Commitment to communicate eventual change in one’s income which may determine whether one qualifies for the public defender paid by the State or not

It is important to note that even an irregular immigrant; an immigrant whose Permit of Stay has expired, or one who entered Italy illegally has a right to apply for a public defender paid by the State even if he’s not a holder of a fiscal code.

A person held in a prison or detention centre can also apply for a public defender paid by the State. He can directly submit the application to the director of the institute who will forward it to the judge handling the case.

Within 10 days of submitting the application, the competent judge will verify if it can be accepted or not. The judge’s decision will be directly communicated to the lawyer who submitted the application or to the concerned person.

Guardia di Finanza can check the financial situation of those being assisted by the public defenders paid by the State by consulting their bank accounts and credit societies.

False declarations or omission of information and failure to notify the authorities of eventual change in one’s income are punishable by a prison sentence and a fine ranging from 309,87 to 1.549,37 Euros, in addition to refunding all the expenses incurred by the State.

Yes to family reunification for citizenship applicantion.

Court of Cassation: There is need of extensive interpretation of the immigration law,
19th June 2009: Those who have applied for and are waiting to be granted Italian citizenship have a right to family reunification, the Cassation Court has ruled.

The case was brought up by a Brazilian man whose application for family reunification with his wife was rejected by the Provincial Police Headquarters in Trento.At that point he took the case to the Tribunal of Trento who ruled that he had a right to be joined by his wife.

According to the judges, even if the Immigration law doesn’t expressly allow those waiting to be granted Italian citizenship to be joined by their family members, family reunification must be granted in order to avoid the irrational inequality in treatment of holders of different types of permits. It must also be done to safeguard the family unity.

This ruling was confirmed by the Court of Appeal (where the Ministry of Home Affairs had challenged the previous ruling) and finally at the Court of Cassation.

The judges ruled that there is need of extensive interpretation of the Immigration law since the Permit of Stay for waiting be granted citizenship is a more stable permit compared to other types of permits.

Furthermore, treating two substantially identical cases in different ways may lead to a conflict with the principles of the Constitution.

What is matrimonial property regime?

Matrimonial property regimes are rules governing the ownership and ways of managing the property of the couple during marriage and when they separate or divorce. Matrimonial property regime also states the rights each spouse has on the property acquired by either of the spouses, or both.

The spouses may agree on their matrimonial property regime at the time of marriage. If nothing is agreed, the community property regime will be automatically applicable.
·        The community property regime.

Under this regime, all property and rights acquired by a husband and wife during marriage is jointly owned, unless they are personal goods which are exclusively at the disposition of each of the spouses.

·        Goods covered by the community property regime.

According to Italian law, each spouse automatically owns an undivided one half in all commonly owned property acquired together or separately by each spouse during marriage; all income from personal property earned by each spouse and not spent; all income from each of the spouse’s work and business activities established and managed by both during marriage; company shares and State bonds; companies created during marriage and managed by both spouses.

If the company only belonged to one the spouses before marriage but then jointly managed during marriage, only the profits are covered by the community property regime.

·        Goods not covered by the community property regime,

Even if the spouses agree on community property regime, not all properties are covered by this regime.Each spouse owns the property acquired before marriage. Such properties are automatically excluded from the community property regime.

The following are also excluded from the community property regime:  properties acquired during marriage through donations, inheritance or legacy; assets personally used by each spouse and their accessories; assets the spouse needs to carry out professional activities, excluding those used to manage the company jointly owned by the couple; properties acquired through payment of damages; pension given for partial or total incapacity to work; properties purchased by income from the spouse’s exclusive  personal property.

·        The conventional community property regime,

This has to do with amendment on some rules governing community property, agreed upon by the spouses, so as to cover even the personal property each one of them owned before marriage or to automatically include all the incomes earned individually by each spouse. It can also indicate the properties to be subject to community property regime or not.

In any case the following must be excluded from the conventional community property regime: assets the spouse needs to carry out his/her professional activities; properties acquired through payment of damages; pension given for partial or total incapacity to work.

This type of agreement must be done by a “public act” which is the document drawn up, with the formalities required, by a public notary or any other authorised public official.

·        Modification or dissolution of community property regime,

In the course of marriage, the spouses can decide to amend the property regime they chose at the time of marriage. For this to be valid, it must be undersigned before a public notary.

In case of nullification or dissolution of marriage (divorce), the community property regime can be dissolved by allocating the properties to each of the parties. Separation or application for separation lodged in a court doesn’t lead to the dissolution of community property regime.

·        Separate Property Regime,

Under the Separate Property Regime, each spouse owns and administers the property acquired before marriage and in the course of it. Neither of the spouses has a right to the other’s property. Therefore, the wife and husband continue to own their property separately during marriage but it doesn’t affect the succession right.

In order to be applicable, each of the spouses must expressly agree to Separate Property Regime. Please note that should only one of the spouses ask for change from community property regime to Separate Property Regime, the case has to be taken to court.

In that case, the court issues a sentence effecting Separate Property Regime which can also be sought in case of interdiction or inability of the spouse, bad management of common property or when one of the spouses doesn’t pay the costs to support the family.

If one intends to buy a property to be co-owned by both spouses after asking for Separate Property Regime, it is necessary to clearly declare it on the purchase certificate, and specify the percentage owned by each spouse.

What happens after applying for regularisation?

The list of documents to prepare before you are summoned to Sportello Unico.
12th December 2009: Law 109 of 2009 made it possible for employers of illegal immigrants in Italy doing domestic work to apply for regularisation of their workers. Employers of all illegal immigrants who had been doing domestic since 1st April 2009 could apply for regularisation of their workers. The deadline for submitting applications was 30th September 2009.

Since there was no limit to the number of domestic workers who could be regularised, all who submitted the application and met the requirements established by the law will be regularised (will be issued the Permit of Stay). Each nuclear family could apply for regularisation of a maximum of three domestic workers (1 housekeeper and 2 caregivers).  Before submitting the applications, each employer had to pay the 500 Euro contribution fee and indicate the details of payment in the application form.

From 1st October 2009, the Immigrations Offices at the Prefecture (Sportelli Unico per l’Immigrazione) and the Provincial Police Headquarters (Questure) received all the applications which were submitted online to the Ministry of Home Affairs.

The Provincial Police Headquarters have to verify if there are reasons that may block the issuing of the Permit of Stay. The following, even if they applied for regularisation, will never receive green light from the Provincial Police Headquarters: Those who had been expelled from Italy for security reasons, public order or terrorism, those who have been earmarked as non admissible to Italy, as well those who have been condemned, even if not definitely, for crimes requiring being caught red handed.

Foreigners who in the past were expelled from Italy because they didn’t have the Permit of Stay or because their permits had expired will be regularised if they applied.

In order to carry out the necessary checks, the Provincial Police Headquarters must have the foreigner’s right personal data (name, surname, date and place of birth, citizenship, sex). In case any of the above was misspelt in the application form, it is very important to notify the competent Immigrations Office at the Prefecture as soon as possible. You can do this by registered mail with return receipt.

If the police officers don’t find anything that may block the foreigner from being issued the Permit of Stay, they’ll clear the application. But if they find a problem, they’ll reject the application.

Having received clearance from the Provincial Police Headquarters that there are no reasons to block the issuing of the Permit of Stay, the Immigrations Office at the Prefecture will summon the employer and the worker to go and undersign the residency contract.

The employer will receive the convocation letter indicating the appointment date, time, place and the documents to bring along.

Here’s the list of documents
  •       The original €14.62 revenue stamp whose bar card was indicated in the application form (those who’ve lost it can present a new one).
  •       Employer’s original ID document plus two copies of the same document (foreign employers must also present the copy of the Permanent Resident Permit or receipt issued when they applied for it).
  •      Two copies of the foreigner’s valid ID document (passport or any other equivalent document).
  •      Copy of the employer’s income tax returns (modello Unico or modello 730), in case of hiring of a housekeeper (colf). If the employer’s income is not sufficient and he needs to top it with those of other family members living with him, then he also has to present income tax returns of those other family members. 
  •      Copy of the medical certificate from a doctor or Local Health Office (Azienda Sanitaria Locale-ASL) showing that the person to be assisted was not self-sufficient at the time the work relationship was established (in case of hiring of a caregiver - badante).
  •      Original copy of the Modello F24 proving the payment of 500,00 Euros.
  •      Original certificate of family status (the employer can self-certify this).
  •     Original and copy of the certificate of suitable accommodation (certificato di idoneità alloggiativa) issued by the technical office of the City Council. One can also apply for this certificate at the competent ASL. Those who have not yet received it can show the receipt they were given when they applied for it.
  •       Two copies of the rent contract, title deed, etc of the accommodation indicated in the application formBefore undersigning the residency contract, the officer at the Immigrations Office at the Prefecture together with the officer from the Provincial labour Office will check to ensure that the following conditions are met.
  •     The employer who applied to hire a housekeeper has the minimum income required by the law which is 20,000 Euros. This is the minimum income an employer must have if he is to regularize an illegal immigrant without adding the income of other family members. But if the employer’s income doesn’t reach that amount, then he is free to add the income of other family members living with him. In this case, the minimum income requirement is raised to 25,000 Euros per year.
  •      The employer who applied to hire a caregiver or two must present the medical certificate from a doctor or ASL showing that the person to be assisted was not self-sufficient at the time the work relationship was established. This can also be proved by presenting the Invalidity certificate. In case of hiring a caregiver, There is no minimum income requirement,
  •      The officers will have to verify the payment of 500,00 Euros and availability of suitable accommodation for the worker (in order to undersign the residency contract, it is enough to show a receipt proving that one has applied for it).
  •     If all the required documents are in order, the employer and the worker will finally undersign the residency contract, after which the worker will be issued the Modello 209 for applying for the Permit of Stay for work at the post office.

What to enclose in the application kit 
  1.       A €14.62 revenue stamp together with the following documents: 
  2.      The original Modello 209 issued by the Immigrations Office at the Prefecture for applying for the Permit of Stay.
  3.      Copy of all pages of the passport.
  4.      Copy of the residency contract undersigned at the Immigrations Office at the Prefecture.
  5.      Copy of the Fiscal code.
  6.      Receipt of payment of 27,50 for the issuing of the electronic Permit of Stay .

The fee for sending the application kit is 30 Euros.

After receiving the application kit, the post office officer will issue the foreigner a receipt showing that he has applied for the Permit of Stay. He’ll also fix for the applicant the appointment to go to the Provincial Police Headquarters to submit the passport size photos and for fingerprinting.

At this stage the employer has to formalize the hiring of the domestic worker by notifying INPS of the hiring using the Modulo Comunicazione Obbligatoria di Assunzione. This must be within 24 hours of undersigning the residency contract at the Immigrations Office at the Prefecture. It can also be done at the same time of undersigning the residency contract if an officer from INPS is available at the Immigrations Office at the Prefecture or in case the residency contract is undersigned at the INPS's office.

What are my rights if I lose my job?

What happens to my Permit of Stay?
30th January 2010: Losing one’s job, regardless of the reason, doesn’t lead to withdrawal of the foreigner’s Permit of Stay. It also doesn’t lead to the withdrawal of the Permits of Stay held by the foreigner’s family members. The Italian law allows the foreigner who has lost his/her job, to remain in the national territory in order to look  for another job.

If a foreigner who still holds a valid Permit of Stay, or has an expired Permit of Stay but has applied for its renewal, loses his/her job due to resignation, dismissal, or expiry of the contract, he/she can: 

 look for another job, and do any type of work (either self-employed work or subordinate work).

      Register with the Employment Centres for the remaining period of the permit’s validity, or in any case for a period not lower than six months.

The foreigner has to register with the Employment Centre (Centro per l’Impiego) within 40 days of losing the job. He/she has to report the previous work done, and declare willingness to carry out any work available.  In order to be registered with the Employment Centre, the foreigner is required to show the valid Permit of Stay or the receipt issued at the post office at the time of applying for renewal of the expired permit.

After registration, the foreigner’s name will be included in the register of the Employment Centre as long as his/her Permit of Stay is valid, and in any case, for a period not less than six months.
  • Permit of Stay for Job Search

If the Permit of Stay for work expires before the holder finds another job, he/she can apply at the competent Provincial Police Headquarters (Questura) for the renewal of the permit. The application is to be submitted using the application kit available at the post office. The certificate of enrolment at the Employment Centre must be attached together with other documents while applying for renewal of the Permit of Stay.
The Provincial Police Headquarters will issue a Permit of Stay for Job Search valid for six months. This permit cannot be renewed.  If within this period the foreigner succeeds to find another job, he/she has to undersign the new Residence Contract (Modello Q) and send it to the competent Immigrations Office at the Prefecture by registered mail with return receipt.

After doing this, the foreigner can apply for the conversion of the Permit of Stay for Job Search into one for subordinate work. The application is to be submitted using the application kit available at the post office. 

But if the foreigner fails to find another job within these six months, he/she will be forced to return to his/her home country since the Permit of Stay for Job Search cannot be renewed.
  • Permit of Stay for Family Reasons

Foreigners who are holders of the Permit of Stay for Family Reasons have a right to work and in case they lose their jobs, can continue to retain their permits. At the expiry of the permit, they’ll have to apply for its renewal using the application kit available at the post office. In order to show that they have the required income, they must enclose a declaration of responsibility (dichiarazione di presa a carico) from the person responsible for their stay in Italy and a copy of that person’s income tax returns.
  • Holders of the EC long-term residence permit

Losing one’s job is not a reason that justifies withdrawal of the EC long-term residence permit. It can, however, be withdrawn for the following reasons:
  • §  If it was obtained fraudulently.
  • §  If the holder is expelled because he/she is a security threat.
  • §  If the holder is away from the European Union for 12 consecutive months.
  • §  If the holder is issued a EC long-term residence permit by another EU Member State .
  • §  If the holder is absent from Italy for more than 6 years.

  •      Right to be paid all the unpaid wages

Just as Italian citizens, a foreigner who loses his/her job has a right to be paid all the unpaid wages prior to the loss of the job. The worker therefore has a right to all the due pay, allowance for untaken paid holidays, the severance indemnity (trattamento di fine rapporto – “TFR”), the 13th Month Salary (La tredicesima mensilità) accumulated up to the time of losing the job. The foreigner also has a right to unemployment benefit if he meets therequirements. Workers who willingly resign for justified reasons also have a right to receive the unemployment benefit. The same is also valid for foreign workers without the Permit of Stay.

The New Italian Citizenship Law.

How it is applied to old and new applications,

27th November 2009The Security Law Number 94/2009 which entered into force on 8th August 2009, substantially changed the rules for obtaining Italian citizenship. Here are the main changes.


Citizenship through marriage 
A foreigner or a stateless person who marries an Italian citizen can only obtain Italian citizenship if after marriage, he/she has been a legal resident in Italy for at least two years, or after three years if they are living abroad. This will be reduced by half if the couple has children (natural or adopted). This means that if a foreigner marries an Italian and they are living in Italy, he/she can apply for citizenship after residing legally in the country for one year. If they are living abroad, then he/she can apply for citizenship after one a half years of marriage.

If there is separation or divorce after submitting the application for Italian citizenship at the Prefecture, the application will be rejected. Under the new law, they must be married throughout the process of application for citizenship.

On the day the new law entered into force, a new problem emerged. There were those who had submitted their applications for citizenship and were still waiting for them to be processed.

In order to clarify how the old applications were to be handled, on 6th August 2009 Ministry of Home Affairs issued a circular letter stating that:


 The old citizenship law which allowed a foreign spouse of an Italian citizen to apply for citizenship after six months of legal residence in the country, is to be applied to the applications for citizenship through marriage if they were submitted more than two years ago (before the new law entered into force). The law states that applications for citizenship must be fully processed within two years. After that period, the applicant acquires right to be granted Italian citizenship. 


 The new citizenship law is to be applied to all applications submitted less than two years ago. All the new requirements are therefore to be applied to the applicants.
  
 Document you can’t self-certify,
While applying for Italian citizenship, it is no longer possible to self-certify the family status, residence, and any other requirements. The applicant must enclose all the required documents to support the application. Failure to do so would lead to rejection of the application. This is applicable also to the European Union citizens.

Citizenship through residence 
The Ministry’s circular letter states that if one applied for citizenship through residence in the past but has not yet been summoned for interview (which is necessary to access the applicant’s level of integration), he/she will have to submit all the original documents which were self-certified while submitting the application in the past (residency certificate, family status certificate, income tax returns, etc).

But if the applicant has already been summoned for the interview, before being notified of the order granting him/her Italian citizenship, he/she will have to submit all the original documents which were self-certified while submitting the application in the past.

  200 Euro application fee 
The new law has also has introduced a fee of 200 Euros to be paid for each application for citizenship. This fee is only applicable to applications submitted after the new law came entered into force.

The Italian Government has opened a postal current account to be used in making payments of the citizenship application fees.

Payment is done at the post office. The account name is: “Ministero dell’Interno DLCI – cittadinanza”. The Italian post office has already begun distributing the printed forms to be used in making the payment. The forms can also be obtained from Immigrations Offices at the Prefecture.


 Documents to attach to the application,
Apart from the usual documents such as birth certificate and criminal record certificate (which must be translated into Italian and legalised), the following documents must be attached to the application for citizenship.


 Application for citizenship through marriage
  •       Proof of legal residence in Italy (registration with the City Council’s registry office) for the at least two years after marriage.
  •      Certificate of criminal records and pending charges.
  •    Certificate of family status showing the presence of children (either natural or adopted).
Application for citizenship through residence ,
  •    Proof of legal residence in Italy (registration with thCity Council’s registry office)     for the period required by law.
  •  Proof of family status.
  • Certificate of criminal records and pending charges
  • Income Tax Returns for the last three years.

Security Package: How it affects family reunification and cohesion

Law Number 94 of 2009, the so-called Security Package introduced several changes to immigration rules. Some of them  affect the  requirements and family members one can apply for family reunification and family cohesion with. Here are some of the changes. 

·        Amendment to Article 116 of the Civil Code,

In order to discourage marriages of convenience between foreigners and Italians, the new law has banned irregular immigrants from marrying in Italy.In the past, some foreigners in the country illegally used to pay money to Italian citizens in order to marry so as to regularize their status in the country.

Following the amendment to the Article 116, in order to contract a recognised civil marriage in Italy, a foreigner must be in the country legally. This doesn’t necessarily mean that the foreigner must have the Permit of Stay. What matters is that the foreigner must have entered the country legally and still be present in the country legally.

The following are considered to be in the country legally and can therefore marry: foreigners who are in Italy for tourism reasons or for any other short visit which doesn’t require them to be issued the Permit of Stay (with entry visa); those who entered Italy from other Schengen States and made a declaration of presence; those whose Permits of Stay have expired and have applied for renewal; and holders of residence permits issued by other EU States).

·        Changes to family cohesion rules,

The only difference between family reunification and family cohesion is that family reunification is meant for family members living abroad while family cohesion is meant for family members already living in Italy.

The Security Package also changed the rules governing applications for family cohesion.Previously, an irregular non-EU immigrant who was a family member of and was living with an Italian citizen could not be expelled from Italy. This was applicable to up to fourth grade non-EU foreigners who were family members of Italian citizens (it included distant cousins).

This rule has been changed and it is only applicable to up to second grade non-EU foreigners who are family members of Italian citizens. This means that only these people can now apply for family cohesion with their Italian family members.
Changes to family reunification rules

The law governing family reunification has been amended so many times in the past years (Legislative Decree. Number 5 of 2007, Legislative Decree Number 160, 2008, and finally the Law Number 94 of 2009). The changes affect relatives with whom one can apply for family reunification and the procedures.
Currently, one can apply for family reunification with: 

·        Spouse if not legally separated and aged not less than 18 years
·        Minor children, even those of the spouse or born out of marriage, on condition that the other parent (if alive) gives his/her consent,
·        Adult dependent children, who cannot take care of themselves due to health problems which lead to total invalidity .

 Dependent parents if they don't have other children in the country of origin, or parents aged over 65 years if their other children in the country of origin cannot take care of them due to documented health reasons.Apart from the spouse, in all other cases, family relationship can also be proved through a DNA test.

As a way of discouraging cases of polygamy and bigamy, the Security Package expressly prohibits application for family reunification with a dependent spouse if the applicant is already married to someone else in Italy.Polygamy and bigamy are criminal offences in Italy punishable with up to five years in    prison.

Anyone applying for family reunification must prove to have suitable accommodation that meets hygienic standards. This can be done by presenting the certificate of suitable accommodation issued by the City Council.In case of application for family reunification with a minor child under the age of 14, it is sufficient to present a letter of hospitality from the owner of the apartment where the child will stay.Previously the nulla osta (authorization) for family reunification was issued within 90 days but now that has been doubled to 180 days.