Scope of this legal opinion is to assess possible criminal profiles in the conduct of companies that
- obtain the entry into Italian territory of a non-EU worker employed by a foreign company of the Group by virtue of a title, specifically a business visa, which does not cover the activity for which the non-EU worker is concretely posted;
- actually employ that person in the performance of work activities not covered by the business visa.
This subject is specifically regulated by the Consolidated Text on Immigration (Legislative Decree 286/1998).
On the offence of aiding and abetting illegal immigration referred to in article 12 of Legislative Decree 286/1998
The first provision that comes to the fore is article 12 “Provisions against illegal immigration”, which provides for a number of aiding and abetting offences, having the nature of crimes of danger.
Paragraph 1 punishes
anyone who, in violation of the provisions of this Consolidated Text, promotes, directs, organises, finances or transports foreigners into the territory of the State, or commits other acts aimed at illegally procuring their entry into the territory of the State, or of another State of which the person is not a citizen or does not hold permanent residence status, shall be punished by imprisonment of one to five years and a fine of EUR 15,000 for each person (paragraph 1).
The legal asset protected by the rule, insofar as it criminalises conduct relating to entry into the State, is that particular aspect of public order and public safety connected with the guarding of borders and the orderly regulation of migration flows.
The offender’s conduct is unrestricted and offence-oriented and may therefore coincide with any act aimed at procuring illegal entry into the territory of the State, irrespective of the actual occurrence of the event. In fact, since it is an offence of danger (which implies strict liability), the offence at hand comes about when the person concerned implements, through his conduct, a condition, even if not necessary, teleologically connected to the potential entry of the foreigner into the territory of the State in the absence of the legal requirements (Criminal Court of Cassation, Section I, 22/05/2014, ruling no. 28819, Pancuni; Criminal Court of Cassation, Section V, 21/01/2004, ruling no. 6250, Vasapollo).
On a subjective level, since this is a criminal offence, willful misconduct is required, i.e. the consciousness and will to perform an act potentially capable of procuring the illegal entry of a foreigner into the territory of the State.
In light of the foregoing, case law has held that the crime in question can be committed by an
employer who engages in activities directed, and therefore even only preparatory and aimed at or directed towards, facilitating the entry into Italy of a foreigner not only in the case of clandestine entry, i.e. carried out covertly, but also in the case of attempted circumvention of the provisions of the Consolidated Text and, in particular, in breach of article 22 of Legislative Decree no. 286 of 1998, and, therefore, also in cases where the entry visa is requested and possibly obtained fraudulently and through simulation of the necessary prerequisites […] (see, Criminal Court of Cassation, Section III, 10/10/2003, ruling no. 40321; accordingly, Criminal Court of Cassation, Section I, 21/10/2004, ruling no. 49258; Criminal Court of Cassation, Section I, 08/05/2002, ruling no. 22741).
More specifically, there is abundant case law, on the merits, too, which has held that the offence referred to in article 12, paragraph 1 exists when the purposes
also with reference to entry into the territory of the State of the foreigner for purposes other than those for which the latter has applied for a visa, [are pursued] by means of false statements or by filing false documentation relating to the actual reasons for his stay in Italy (see Criminal Court of Cassation, Section I, 15/12/2009, ruling no. 2285; accordingly, Criminal Court of Cassation, Section II, 21/09/2004, ruling no. 40789; Criminal Court of Cassation, Section II, 11/12/2003, ruling no. 3406 (1); G.I.P. [Preliminary Investigation Magistrate] of Naples, 28/01/2014, decision no. 187).
Also most recently, the Italian Court of Cassation reaffirmed that
the offence of aiding and abetting illegal immigration is committed also when the foreigner’s entry into the territory of the State is formally regular, but aimed, in reality, at an illegal stay (Criminal Court of Cassation, Section I, 05/02/2020, ruling no.15531) (2).
Therefore, the conduct of a company which, for the purpose of issuing a business visa, draws up an invitation statement indicating the reason for the stay requested and the activity that should be carried out by the invited foreigner which differs from the actual reason for the stay and the actual activity that the foreigner is supposed to carry out, is, therefore, enough for the offence in question.
Subsequent paragraphs 3 and 3 ter provide for specific aggravating circumstances [those entailing an increase in punishment](3).
Under paragraph 3 of the same provision, the same conduct is punishable “with imprisonment for a term of five to fifteen years and a fine of EUR 15,000 for each person in the event that:
- the case relates to the unlawful entry or stay in the territory of the State of five or more persons;
- the person transported was exposed to danger to his life or safety in order to procure his illegal entry or stay;
- the person transported was subjected to inhuman or degrading treatment in order to procure his or her illegal entry or stay;
- the offence is committed by three or more persons acting jointly or using international transport services or documents that have been forged or altered or otherwise unlawfully obtained;
- the perpetrators have weapons or explosive materials at their disposal” (para. 3).
The provision may come about in the present case where the offence was committed by at least three persons jointly participating therein.
Finally, under subparagraph 3 ter, “the term of imprisonment shall be increased by between one third and one half and a fine of EUR 25,000 shall be imposed for each person if the offence referred to in paragraphs 1 and 3:
- is committed with a view to recruiting persons to be used for prostitution or otherwise for sexual or labour exploitation, or entails the entry of minors to be used in unlawful activities in order to facilitate their exploitation;
- is committed with a view to making a profit out of them, even indirectly”(4).
Given that, in the case at hand, the (illegal) entry would be aimed at employing the foreigner in a work activity (under economic/salary conditions that are likely to be facilitated), the aggravating circumstance represented by the purpose of profit, as referred to in paragraph 3ter letter b), with the consequence of a significant tightening of the penalties (from one third to one half the prison sentence; to 25,000.00 euro the fine) is likely to occur.
The criminal liability of the legal entities pursuant to Legislative Decree 231/2001.
It should be noted that article 25-duodecies of Legislative Decree no. 231/2001 was amended following the enactment of Law no. 161/2017 (the new Anti-Mafia Code), which introduced new offences in relation to illegal immigration within the range of offences provided for in Decree no. 231/2001.
In particular, the introduction of three new paragraphs punish the offence provided for in article 12 of Legislative Decree no. 286/1998 (Provisions against clandestine immigration) in paragraphs 3, 3-bis, 3-ter, 5.
This is the conduct of those who, unless the act constitutes a more serious offence:
promotes, directs, organises, finances or carries out the transport of foreigners into the territory of the State or carries out other acts aimed at illegally procuring their entry into the territory of the State, or of another State of which the person is not a citizen or does not have the right of permanent residence; in order to obtain an unfair profit from the illegal status of the foreigner, facilitates the permanence of the foreigner in the territory of the State in breach of the provisions hereof.
Therefore, the aggravated cases referred to in article 12, paragraphs 3, 3-bis and 3-ter of Legislative Decree no. 286/1998 also constitute (pursuant to article 25-duodecies of Legislative Decree no. 231/2001) predicate offences for the administrative liability of Entities arising from offences. With the consequence that, in the event of the aforementioned offences, criminal proceedings would be brought not only against the natural persons who materially carried out the aiding and abetting conduct (the so-called top management of the company), but also against the companies for administrative infringement whose the perpetrators of the offence are persons in a senior or subordinate position.
The sanctions would be, in the present case, both pecuniary (from a minimum of Euro 103,200.00 to a maximum of Euro 1,549,000.00) and disqualifying (prevention from carrying out the corporate activity; suspension or revocation of authorisations, licences or concessions instrumental to the commission of the infringement; ban on transactions with the Public Administration; exclusion from facilitations, financing, contributions or subsidies and possible revocation of those already granted; prohibition to advertise goods or services) for a duration of not less than one year.
Entities are, therefore, called upon to assess the actual relevance of such possible conducts in relation to their business by carrying out a specific risk assessment and adopting and/or updating, if necessary, their Organisational Models, integrating the principles of conduct and strengthening the controls preventing offences.
On the offence of ideological forgery in public deeds by inducing a civil servant into error pursuant to articles 48 and 479 of the Criminal Code.
The conduct of a company that draws up, for the purpose of issuing a business visa, a declaration of invitation indicating the reason for the stay requested and the activity that should be carried out by the invited foreigner that differs from the real reason for the stay and the actual activity that the foreigner is meant to carry out, could also entail – together with the offence of aiding and abetting (Criminal Court of Cassation, Section I, 08/05/2002, ruling no. 22741) – the case of ideological forgery in public deeds to induce civil servants (appointed to draft and issue the public deed) into error, pursuant to the combined provisions of articles 48 and 479 of the Criminal Code (possibly alongside with the foreigner who materially files the forged documents).
Actually, the case in question arises when filing ideologically false documentation induces civil servants to erroneously and therefore falsely certify the recurrence of one of the prerequisites necessary to obtain the issuance of a public deed, namely, the entry visa (see Criminal Court of Cassation, Section I, 08/05/2002, ruling no. 22741).
This is an offence punishable by imprisonment of one to six years.
On the case referred to in article 22 of Legislative Decree no. 286/1998.
If, following the issue of a business visa, the foreigner is actually posted as an employee at an Italian company, the offence pursuant to article 22(12) of Legislative Decree 286/1998 would also be committed.
The provision, in fact, punishes
the employer who employs foreign workers without the residence permit provided for in this article, or whose permit has expired and whose renewal, revocation or cancellation has not been requested, within the time limits provided for by la
with imprisonment from six months to three years and a fine of 5,000 euros for each worker employed.
This is therefore a provision that penalises the employment of foreign workers (whether legally employed or not) who are not in order with their residence permit for work reasons, a category to which foreigners with a visa must necessarily fall that does not include, as in the present case, the performance of work activities.
However, it should be noted that, since the provision expressly refers to a residence permit for employment (see heading) and uses the verb “to employ”, it would appear that conduct involving the establishment of self-employment relationships that do not, therefore, require a permit issued therefor, such as in the case of contracts of coordinated and continuous collaboration, etc., would be excluded from the criminal scope of the offence.
In order for the case in question to come about, it will therefore be necessary to verify, in the case at issue, the existence (or the lack) of substantial and concrete indicators (employer/employee relationship and relevant monitoring; absence of organisational autonomy, etc.) (5) that would allow a subordinate employment relationship to be deemed to exist.
The active subject of the aforementioned offence can only be an “employer”, a notion to be construed, however, in a broader and not merely formal sense through reference to the consolidated guidelines developed by criminal labour and case law, especially with reference to consolidated legal literature especially with reference to health and safety at work. (6)
From a psychological point of view, the offence is punishable because of generic willful misconduct, since the will and awareness of employing a foreign citizen irregularly on Italian territory – because he does not have a residence permit – is sufficient. According to some lines of decisions, however, potential willful misconduct (dolus eventualis, in Latin) is sufficient, since it is the employer’s duty to demand and check the residence permit before hiring a foreigner in the work activity.
In the present case, without prejudice to the need to check, in actual terms, the contractual relations between the companies involved, the status of employer (with the consequent likelihood of the offence in question to be committed) could be ascribed to the company that performs management and control activities over the work of the foreign worker, even if they are employed for the performance of temporary activities at another company, which could, therefore, take the role of mere principal.
On the case referred to in article 37 of Law no. 689/81.
As widely known, article 37 of Law no. 689/81 envisages that
unless the act constitutes a more serious offence, an employer who – in order to avoid paying all or part of the social security contributions and premiums provided for by mandatory social security and assistance laws – omits one or more compulsory registrations or reports, or makes one or more compulsory reports – in whole or in part – not in conformity with the truth, shall be punished with imprisonment of up to two years when their conduct results in the omission of the payment of social security contributions and premiums provided for by mandatory social security and assistance laws for an amount not less than the greater of five million per month or fifty per cent of the total contributions due.
It is therefore clear that, if the foreigner is found to be actually employed without the relevant entry visa and the consequent authorisation to remain in the territory of the State, it cannot but be ascertained that the employer failed to pay social security contributions because the necessary application or documents were never filed with the National Institute for Social Insurance (INPS).
The criminal offence referred to in article 37 of Law 689/81 is therefore likely to come about (obviously in the sole case of exceeding the punishment threshold provided for by the law), given that the offence itself – unlike the offence of failure to pay social security contributions – substantiates irrespective of the actual payment of a salary, as recently set forth in ruling no. 5042 of 9 February 2021 of the Court of Cassation. In line with the orientation already mentioned (Court of Cassation, ruling no. 56077 of 15/12/2017), with the said recent ruling, the Court confirmed that the prerequisite of the offence
is the establishment of an employer/employeerelationship […] and not by the actual payment of the salary.
Therefore, the moment at which the obligation to pay contributions arises and, consequently, to file the relative notifications or registrations required by law (such as the UNIEMENS declaration), coincides with the establishment of the employment relationship, since this relationship is not linked to the social security one. Such autonomy, in the Court’s opinion (Court of Cassation, ruling no. 56077 of 15/12/2017), is based on article 2116 of the Italian Civil Code, according to which the employee is entitled to social security benefits even if the employer has not regularly paid contributions, as well as on article 1 of Law no. 389/89, which provides for the payment of mandatory contributions regardless of the payment of a salary, the latter constituting only the taxable amount on which to calculate the amount of contributions due.
Notes
1- “On the subject of immigration, the offence provided for in article 12(3) of Legislative Decree No 286 of 25 July 1998 is not excluded by the fact that the foreigner whose entry into Italian territory is conceived holds a passport and an entry visa, when it is established that this visa was obtained by means of false statements or documentation, for a purpose other than that actually pursued”.
2- In Riv. Cassazione Penale 2020, 11, 4269. Established case law (see Sec. I, 26 November 2013, no. 50895, in C.E.D. Cass., no. 258349; Sec. I, 10 October 2007, no. 42985, in this journal, 2008, p. 3029; Sec. VI, 16 December 2004, no. 9233, ibid., 2006, p. 1566).
3- Criminal Court of Cassation, Unified Sections, 21/06/2018, ruling no. 40982: “the cases provided for in article 12, paragraph 3, of Legislative Decree no. 286 of 25 July 1998 constitute aggravating circumstances of the crime of danger referred to in paragraph 1 of the same article”.
4- “By “indirect profit” is to be understood an expectation of enrichment, even if not economic, but nevertheless identifiable in a material advantage, not necessarily connected with the entry of the foreigner in breach of the law” (Criminal Court of Cassation, Section I , 19/03/2013, ruling no. 15939).
5- See on this point, Court, La Spezia, 28/03/2013, ruling no. 276: “The offence of employment of foreign workers without a residence permit is committed not only by the person who directly provides for the employment, but also by the person who, although not having acted directly in this regard, makes use of them, exercising tasks of superintendence and control over their work, regardless of whether the employment relationship is occasional or fixed-term”.
“Also the unauthorised employment of foreign workers without a residence permit also constitutes the hiring of a labourer for the work of a single day, with no relevance to the fact that the employment relationship is occasional if it is characterised by the performance by a subordinate person without autonomous organisation”.
Court, Nocera Inferiore, 03/10/2011, ruling no. 1414: “With regard to provisions on the stay of non-EU citizens, the term employer is to be understood as meaning anyone who hires a person to carry out subordinate work; for this purpose, the use of a vehicle registered in the employer’s name, even in places distant from the place of residence, is an indicator of the subordinate relationship”.
6- Criminal Court of Cassation, Section I, 04/04/2003, ruling no. 25665: “For the purposes of the offence provided for by article 22, paragraph 10, legislative decree no. 286 of 25 July 1998 – which punishes the hiring of non-EU citizens without a residence permit – the “employer” is not only the entrepreneur who professionally manages an organised work activity, but also the simple citizen who hires one or more persons to carry out subordinate work of any kind, for a fixed-term or an open-ended period, as in the case of domestic helpers or caregivers”.
Criminal Court of Cassation, Section IV, 16/04/2013, ruling no. 31288: “The offence provided for by article 22, paragraph 12 of Legislative Decree no. 286 of 25 July 1998, which punishes the employment of foreign workers without a residence permit, is an offence that can only be committed by the employer (case in which the offence was excluded against the employer of building works who had hired a non-EU worker)”.