T.A.R. for Liguria, judgment no. 152 of February 24, 2022
In this case, the foreign citizen to whom the Questura of Imperia refused the request for regularization on the national territory, regarding the issuance of a residence permit for emersion from the irregular employment relationship.
According to the Police Headquarters, the sentence handed down by the Court of Imperia in 2016 would be an obstacle.
In this regard, the Regional Administrative Court notes that the applicant filed on March 24, 2021 the request for rehabilitation pursuant to art. 179 of the Criminal Code, and on February 1, 2022 attached the evidence of the positive conclusion of this procedure.
Court of Foggia, sentence of February 23, 2022
In the case in question, INPS rejected the applications for agricultural unemployment for fixed-term agricultural workers who were non-EU citizens in the absence of a valid residence permit covering the two-year insurance period of reference to access the benefit
The Court of Foggia - Labor Section dealt with this issue by recalling certain pronouncements made by the Social Security Institution.
In the case under consideration, the Inps rejected the applications for agricultural unemployment submitted by temporary laborers who were seeking international protection, claiming that the relative residence permit was equivalent to a residence permit for seasonal work.
This assumption was not shared by the Court of Foggia, which criticized the erroneous overlap made by the Inps between seasonal work permits and "permits of less than nine months" (including residence permits for asylum seekers, also considered "short permits"). It is clarified that, beyond the duration and the supposed "shortness" of residence permits, only residence permits for seasonal work are not covered by unemployment and family treatments (ex art. 25, paragraphs 1 and 2, Legislative Decree 286/1998) and, therefore, residence permits for asylum request (provided instead by Legislative Decree 142/2015) allow access to these forms of income support.
Another interesting aspect concerns the burden of proof incumbent on the parties: the Labour Court establishes the principle by virtue of which, even if the residence permit held by the applicant is valid only for a period of the two-year period for which the benefit is due, it is still the responsibility of the Social Security Agency to object and document in court that the working days carried out are outside the period of time in which the foreign citizen could legitimately carry out work activities.
It is appropriate, therefore, to remember that
the asylum seeker is such as he/she has manifested the will to apply for international protection in any form and until a final decision on such application is taken by the competent Territorial Commission or Court (art. 2, Legislative Decree 142/15);
his regular stay is attested even only by the formalization of the request for protection (art. 4, par. 3, Legislative Decree 142/15); after 60 days from the manifestation of willingness to apply for protection, the asylum seeker can legitimately work in Italy, regardless of whether the competent authorities have promptly proceeded with the issuance of the residence permit or not (art. This right is maintained even if the competent authorities are waiting for the renewal of the residence permit, since the regular stay derives directly from the manifestation of willingness to apply for asylum and the delay of the Public Administration does not affect in any way the rights of the asylum seeker.
Therefore, there is the right of the holders of residence permit for asylum to receive the agricultural unemployment benefit because, unlike seasonal workers who have the authorization to carry out work in the national territory up to a maximum of nine months in a period of twelve months, asylum seekers, pursuant to Article 22 d.l.vo 142/2015, can carry out work after 60 days from the submission of the application, with no time limit.
Prof. Avv. Paolo Iafrate
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