Friday, 22 January 2010.
What to do to avoid facing criminal charges.
25th April 2009: According to Immigration Law, and Legislative Decree 286/98, the employer who hires a non-EU citizen without the Permit of Stay (one who has never had the permit in the past, or whose permit was revoked, or never renewed the permit when it expired) can be given a prison sentence ranging from six months to three years with a fine of 5,000 Euros for each illegal immigrant hired.
Attention: The penal sanctions are also applicable in case one hires an immigrant with other types of permits that don’t allow the holders the right to work (for instance, Declaration of presence in case of tourists).
In order to avoid the risk of facing criminal charges for hiring an immigrant without the right to work, it is important for the employer to verify if the worker has a Permit of Stay that allows him/her to work.Unfortunately on the new Permits of Stay this is not indicated. There are plans of introducing new ones indicating the reason why the permit has been issued.
It is therefore upon the employer to check to ensure that he/she doesn’t hire a foreigner without a Permit of Stay that allows him/her to work.This has been affirmed many times by various court sentences, including one by the Cassation Court.
Even if the domestic worker is an illegal immigrant, the employer is still obliged to respect all the labour laws. At the time of hiring, even if it is not formalised at the offices of INPS, an informal contract of work is formalised entitling each party to rights and responsibilities.
The employer is therefore obliged to pay the worker the right minimum wage as established by INPS, and to pay the bonus payment in December called "tredicesima" (the 13th salary).
In case of termination of work relationship, the domestic worker has a right to claim all the money the employer owes him/her. He/she also has a right to present the case to the competent Labour Tribunal in order to claim his/her rights and sort out all controversies between him/her and the employer.
Last February, the European Parliament approved the European Directive against employers of illegal immigrants. Under the Sanctions Directive, employers of illegal immigrants would be penalised while illegal immigrants would be granted legal conditions of employment.
The Sanctions Directive introduce minimum penalties at European level against employers of illegal immigrants. Employers could be fined, forced to pay wages in arrears at legal levels or even banned for up to five years from bidding for public sector contracts or from receiving state aid – whether national or European.
Under the Directive, an employer found guilty of hiring illegal immigrants will have to refund any state aid received the previous year and pay a graduated fine according to the number of illegal immigrants employed.
In addition, he must pay a sum equal to the amount of taxes and other levies he would have paid if the worker had been employed legally and, where applicable, the cost of returning the migrant.
Member States will have to establish lower financial penalties for people using clandestine immigrants as domestic staff, provided the working conditions are not exploitative.
They’ll also be asked to set up mechanisms to enable illegal immigrants to lodge complaints. Irregular immigrants who cooperate with the legal action against their employer will be given a temporary residence permit.
