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  • An overview of reporting obligations for the public services in Italy since the criminalisation of irregular stay in 2009 until today

    By Margherita Bini

    2026-06-26

    Margherita Bini is a graduating law student at the University of Florence. From April to June 2026, she completed an internship at the Malmö Institute for Migration Studies working partly for the GIVE RIGHTS project. In her free time, she enjoys spending time outdoors when the weather permits. When the weather is less inviting, she is equally content staying in, baking cakes, reading, or watching films.

    On the17th of March, 2009, healthcare professionals across Italy – including doctors and nurses, but also social workers and many others – staged demonstrations in more than twenty cities under the slogan “Noi non segnaliamo”.[1] The protests targeted a proposed law aimed at lifting the ban on reporting irregular migrants who accessed healthcare services. The mobilisation was coordinated by organisations with longstanding experience in the fields of migration and public health, such as the Italian Society of Migration Medicine and Doctors Without Borders. More than 23,000 signatures were collected in an effort to defend the principle of universal access to healthcare and to prevent medical institutions from becoming tools of immigration enforcement. The strength of the protests and the broad coalition behind them forced the lawmakers promoting the measure to abandon the proposal before it could be implemented.[2]

    Although this specific proposal was defeated, the mobilization exposed a deep-seated tension between professional ethics and border control. Understanding this radical response requires examining how Italian law entangled irregular migration with criminal enforcement. This post outlines the evolving legal framework surrounding reporting duties for welfare professionals in Italy. After tracing the historical legislation that shaped current regulations, I analyse how the criminalisation of irregular entry and stay compromises migrants’ ability to exercise their rights, focusing specifically on the statutory obligation for public officials to report crimes encountered in the line of duty.

    The security package

    After years of legal uncertainty and fragmented regulation, the 1990 Martelli Law[3] marked the first attempt to establish a coherent framework for immigration policy in Italy[4] by introducing, for the first time, the requirement for foreign citizens to obtain a residence permit to legally stay in the country.

    In the following years, various legislative initiatives were adopted to regulate migration flows and tackle irregular immigration, leading, in 1998, to the adoption of the Turco-Napolitano Law, better known as the Consolidated Immigration Act.[5] The Consolidated Immigration Act, which is still in force today, has been amended over the years. Both the Bossi-Fini Law of 2002[6] – which, among other things, required a valid employment contract guaranteeing financial support as a condition for entry into Italy and for obtaining a residence permit – and the Security Package of 2009[7] include such amendments.

    In particular, the Security Package introduced, through Article 10-bis[8] of the Consolidated Immigration Act, the criminal offence of irregular entry and stay on Italian territory.[9] In this way, conduct that had previously been treated as an administrative offence was reclassified as a criminal offence. Under Article 10-bis, anyone[10] who unlawfully enters or remains in Italy territory is subject to a fine ranging from €5,000 to €10,000.[11][12] This offence is characterized by a special legal regime. Although it is punishable by a fine, it does not allow for the usual simplified form of settlement available under general law, known as oblazione.[13] At the same time, under Article 16 of the Consolidated Immigration Act, the offence may be subject to an alternative sanction: expulsion from the country, ordered at the discretion of the justice of the peace.[14] In practice, this option is used quite frequently, as many migrants lack the financial means to pay such a substantial fine. Furthermore, if the expulsion order is not carried out, the situation may ultimately lead to detention.[15]

    Why, then, was there a perceived need to introduce this criminal offence at that particular historical moment? The years around 2009 were undoubtedly marked by significant social and economic tensions in Italy, as increasing migratory pressures coincided with the broader effects of the financial crisis. In this context, the measure can be seen as a political response to concerns about employment insecurity and public order. At the same time, the provision also operated as a means of circumventing Directive 2008/115/EC.[16] The so-called “Return Directive” provides that, when a third-country national is found to be irregularly present, authorities should normally issue a voluntary return order rather than enforce immediate removal. An exception applies where expulsion follows from a criminal sanction. Since voluntary return procedures were widely considered ineffective in practice, the criminalisation of irregular entry and stay offered national authorities an alternative legal basis through which expulsion measures could be implemented more swiftly and effectively.[17]

    However, the sources do not clearly indicate whether this effect was intentional or merely a consequence of criminalising irregular entry and stay. When the offence was introduced, the main focus seems to have been on expelling irregular migrants rather than encouraging them to leave voluntarily. At the same time, it should be noted that – although this measure was never adopted – there was an intention to remove the provision in Article 35, paragraph 5, of the Consolidated Immigration Act. This provision exempts doctors and healthcare staff from the duty to report irregular migrants. Overall, this suggests that the government sought to tighten immigration policies, but only partially succeeded. This was likely not due to goodwill or leniency, but rather to avoid losing too much public support.

    Attempts to decriminalise irregular entry and stay

    Despite these significant consequences, efforts to reverse the criminalisation have largely failed. The issue of criminalisation of irregular stay continued to be a contested issue in Italian politics also after the “Noi non segnaliamo” protests by health care professionals in 2009. In 2014, a proposal to decriminalise the offence of irregular entry and stay was initially put forward by some members of the Five Star Movement.[18] However, not all the representatives of the party agreed at the time, and the issue quickly became the focus of a significant internal debate. This debate ultimately led to a consultation among the party’s registered members, who were called upon to express their views on the matter.[19]

    Subsequently, in 2014, the proposal to decriminalise the offence under Article 10-bis was taken up by the Renzi government and included in its broader justice reform agenda. The reform was intended to alleviate the burden on an overstrained judicial system and to address the serious problem of prison overcrowding and poor detention conditions in Italian correctional facilities, by providing for the decriminalisation of many minor offences.[20] In this context, Parliament adopted a delegation law authorizing the Government to decriminalise several offences, including the one set out in Article 10-bis. However, the legislative decree later adopted by the Government to implement that delegation ultimately did not refer to this offence. The Government did in fact adopt a legislative decree implementing parts of the delegation conferred by Parliament, decriminalising some offences, but it did not decriminalise the offence under Article 10-bis, contrary to what had been provided for in the initial parliamentary delegation law.[21] Why did the Government retreat from the Parliament’s initial delegation law? According to Italian legal scholar Adelmo Manna,[22] the reason was that the Government feared losing electoral support if they were seen as not tough enough against irregular migration.

    Over the years, lawyers and judges have repeatedly challenged this decision, seeking to bring the issue before the Constitutional Court.[23] They argued that the 2016 legislative decree[24] adopted by the Government was unconstitutional, as it did not fully implement the powers granted by Parliament in 2014.[25] More recently, the issue of the failed decriminalisation once again came before the Italian Constitutional Court. In Judgment No. 81/2025,[26] the Court reaffirmed that the legislative decree adopted by the Government pursuant to the delegation law was not unconstitutional. In particular, the Court rejected the claim of unconstitutionality, holding that the Government’s decision not to decriminalise the offence under Article 10-bis ultimately fell within the sphere of political discretion and legislative expediency, rather than constituting a constitutional violation.

    Since then, although protests and criticism against the criminalisation of irregular entry and stay were initially organised, the provision has remained unchanged and the debate appears to have faded. Indeed, a brief review of news and scientific literature from recent years suggests that the discussion on decriminalisation largely lost momentum after the unsuccessful attempt in 2014. In the following years, several mobilisations concerning migrants’ rights took place, such as the “Ero Straniero” campaign, which in 2017 submitted a popular legislative proposal to the Chamber of Deputies. However, these initiatives focused on different priorities. In particular, the “Ero straniero” campaign sought to reform the labour entry system by introducing more flexible and diversified legal migration channels, as well as to promote the regularisation of foreign residents already living in Italy who are socially integrated but remain irregular, for example through employment contracts and the formal recognition of their social integration. Overall, however, the decriminalisation agenda itself does not appear to have regained centrality in either academic debate or public discourse, reinforcing the impression that the issue has gradually receded into the background.

    Reporting obligations

    So, what is the current situation regarding irregular migrants today? Since the conduct constitutes a criminal offence, public officials and public service providers are under an obligation to report them.[27] Articles 361 and 362 of the Italian Criminal Code, in fact, require public officials and public service providers to report offences of which they become aware in the exercise of, or by reason of, their functions, if these offences are prosecutable ex officio.[28] These provisions do not create a reporting duty specifically for irregular migrants. Instead, they apply more broadly to all criminal offences.

    However, applying this mandate strictly across all areas of public life would completely deprive migrants of their fundamental human rights.[29] The constant fear of being reported actively deters irregularly residing individuals from seeking critical medical care or going to the authorities when they are victims of a crime. To counteract this, Italian law has carved out vital protective mechanisms. The remainder of this post examines these sector-specific exceptions in areas like healthcare, education, and housing. Relying on insights from authors like Delvino, Corsi, and Taverriti, I outline which services irregular migrants can safely access without triggering a reporting obligation for the professionals who assist them.

    The right to health care

    An important exception to the reporting obligation exists in the healthcare sector: pursuant to Article 35, paragraph 5, of the Consolidated Immigration Act, “access to healthcare facilities by a foreign national who is not in compliance with residence regulations may not entail any form of reporting to the authorities, except in cases where a medical report is mandatory, under the same conditions applicable to Italian citizens”.[30] However, people residing irregularly in Italy may access only urgent or essential healthcare treatment,[31] the definition of which is provided by Ministerial Circular No. 5 of 2020.[32] Irregular migrants accessing these services are not required to present any form of identification and are assigned a regional identification code known as STP (Straniero Temporaneamente Presente, “temporarily present foreigner”). This code is valid nationwide for six months and can be renewed for as long as the condition of irregularity persists. It allows irregular migrants to access the healthcare services to which they are entitled, including the possibility of receiving prescriptions, issued on regional prescription forms, for medicines dispensed by contracted pharmacies.[33] The costs of the healthcare services referred to in Article 35, paragraph 3, provided to individuals lacking sufficient financial resources (who are required to sign a declaration of indigence), are covered by the local health authorities (USL).[34]

    The right to education

    Another sector in which access is expressly guaranteed regardless of immigration status is education. In Italy, the right to education for foreign minors is protected at all levels of the legal order, from constitutional provisions down to legislative and administrative texts. At the constitutional level, Article 34 of the Italian Constitution establishes the principle that education is open to everyone and recognizes both compulsory education and the right of capable and deserving students to pursue higher levels of study irrespective of their economic means.[35] Although the provision does not explicitly refer to foreign nationals, it has consistently been interpreted in light of the constitutional principles of equality and the protection of fundamental rights as applying to all minors present on Italian territory.

    The foundations of this framework were further developed by Article 38, paragraph 1, of the Consolidated Immigration Act, which provides that “foreign minors present within the territory are subject to compulsory education; all provisions in force concerning the right to education, access to educational services, and participation in the life of the school community shall apply to them”. By extending to foreign minors the same rules governing access to education and participation in school life, this provision establishes a principle of substantive equality and affirms that the right to education must be guaranteed irrespective of nationality or residence status.

    This principle was further reinforced by Article 45 of Presidential Decree No. 394 of 31 August 1999, which expressly states that foreign minors present on Italian territory have the right to education regardless of the regularity of their residence status. The decree specifies that they must be admitted to schools under the same conditions applicable to Italian students and that enrolment at any level of education may be requested at any time during the academic year.[36], [37]

    Subsequent administrative measures have consistently reaffirmed these guarantees. In particular, a ministerial circular[38] has clarified that all minors residing in Italy are subject to compulsory education between the ages of six and sixteen. The same approach is reflected in the Guidelines for the Reception and Integration of Foreign Students issued by the Ministry of Education, University and Research,[39] which expressly state that “in the absence of documents, the school shall nevertheless enroll the foreign minor, since an irregular status does not affect the exercise of the right to education. School staff are under no obligation to report the irregular residence status of pupils who are attending school and who are therefore exercising a right recognized by law”.[40]

    Birth and marriage certificates

    The 2009 Security Package also amended Article 6, paragraph 2 of the Consolidated Immigration Act,[41] concerning the requirement to present identity documents. In its previous version, Article 6 explicitly exempted acts relating to an individual’s civil status from this obligation, whereas the new provision appears to have tightened the regime.

    The issue surrounding the issuance of birth certificates subject to the presentation of documents exposed minors to the risk of not being registered, due to parents’ fear of being reported to the authorities. Following an appeal by ASGI (Association for Juridical Studies on Immigration), the Ministry of the Interior issued a circular[42] clarifying that: “For the performance of activities concerning birth declarations and recognition of filiation (civil status birth register), documents relating to residence status must not be requested, as such declarations are made, also for the protection of the minor, in the public interest of ensuring legal certainty of factual situations”. However, the issue remains unresolved, as circulars do not carry the same legal force as legislation. Legislative intervention would therefore be necessary to address the ambiguity in Article 6, paragraph 2, of the 2009 Security Package. In any case, Italian law also provides for the possibility of registering a birth directly at the healthcare facility where the child is given birth, where the prohibition on reporting irregular migrants applies.

    As regards the right to marry, the Security Package of 2009 also amended Article 116 of the Civil Code, introducing the requirement for migrants to present documentation certifying the regularity of their stay in Italy at the time of marriage. However, this amendment to Article 116 was later declared unconstitutional by the Constitutional Court,[43] as it was found to violate the fundamental right to marry.[44]

    Right to housing

    A shadow looms over the possibility for irregular migrants to access housing-related services. Since the prohibition on reporting irregular migrants cannot be extended beyond the categories expressly provided for by law and is therefore applicable exclusively in the healthcare and education sectors, social workers would, in principle, be under a duty to report.

    Nevertheless, as shown by various regional and local documents, irregular migrants sometimes manage to access these services. Indeed, the Guidelines for combating severe adult marginalisation in Italy[45] – adopted through a formal agreement between Government, Regions, Autonomous Provinces and Local Authorities at the Unified Conference on 5 November 2015 – list people without a valid residence permit among the beneficiaries of such measures. Specifically, access is granted to services including showers, meals, night shelters, emergency accommodation, and essential medical assistance.

    This raises a key question: how can the reporting obligation for public officials be reconciled with such provisions? An analysis of available documents suggests that, in order to address this tension, municipalities and regions often delegate the organisation of these services to third-sector entities such as associations and non-profit organisations. In this way, staff working within these organisations, being private actors, are not subject to the same reporting obligation and instead retain only the option to report, as is the case for private citizens in general.

    Victims of crime

    Finally, the question is whether irregular migrants can defend their rights by reporting crimes they have suffered, or whether they risk being reported themselves because public officials are required to report them.

    One possible solution appears to be found in Article 622 of the Criminal Code,[46] which subjects a range of professionals to a duty of confidentiality regarding information acquired in the course of their duties. This provision also applies to lawyers, allowing migrants to report crimes through legal representation without direct contact with public authorities.[47]

    But is it really so simple to contain this problem? As highlighted in the report on the city of Milan drawn up within the framework of the Safe Reporting project[48] – which involves several European cities and universities – while it is true that at the reporting stage an irregular-status victim may avoid direct contact with public authorities through the intermediation of a lawyer, the identification of the victim is often still necessary in subsequent phases to continue investigations and legal proceedings. For this reason, in some courts, judges and judicial police officers have begun to accept any form of identification document or, in some cases, not to request any at all. However, this practice is not applied uniformly across the territory.[49]
    One possible solution to this issue could be the issuance of a special residence permit for reasons of justice. However, as the report highlights, these permits are often granted only if the migrant acts as an informant, not simply as a victim. Even in such cases, authorities can still be reluctant to issue them.[50]

    Conclusion

    In conclusion, the Italian framework governing irregular migration is characterised by a structural and persistent tension between formal criminalisation and the practical need to safeguard fundamental rights. While the offence of irregular entry and stay remains firmly embedded in the legal system, its effects extend far beyond immigration control. It affects how irregular migrants access basic services and whether they are willing to interact with public institutions.

    Over time, much as a result of collective protests by welfare professionals, the system has developed a series of partial safeguards designed to mitigate the harshest consequences of reporting obligations, particularly in the fields of healthcare and education. Yet these exceptions remain sector-specific and unevenly applied, leaving significant areas of vulnerability – most notably in housing and social assistance – where the risk of detection continues to operate as a powerful deterrent for irregular migrants to access their human rights.

    At the same time, the gradual fading of political momentum around decriminalisation suggests a broader normalisation of the current legal framework, despite its unresolved contradictions. This raises important questions for future legal and policy reforms aimed at reconciling migration control with the effective protection of fundamental rights.

    Footnotes

    [1] “We do not report”. Among the various newspaper articles documenting the event, see “Noi non segnaliamo day,” Vita.it, accessed June 8, 2026, https://www.vita.it/campagne-noi-non-segnaliamo-day/; “Noi non segnaliamo day: il 17 marzo in diverse città,” Melting Pot Europa, March 2009, https://www.meltingpot.org/2009/03/noi-non-segnaliamo-day-il-17-marzo-in-diverse-citta/; “I medici: ‘Non denunceremo gli immigrati illegali’,” Il Tempo, March 18, 2009, https://www.iltempo.it/roma-capitale/2009/03/18/news/i-medici-non-denunceremo-gli-immigrati-illegali-673626/.

    [2] Salvatore Geraci et al., “Trent’anni di SIMM: 1990–2020,” in ABS SIMM 2020: 30 anni (Società Italiana di Medicina delle Migrazioni, 2020), 39, https://simmweb.it/wp-content/uploads/2025/06/ABS_SIMM_2020_30anni.pdf.

    [3] Law No. 39 of 28 February 1990.

    [4] Matilde Rosina, “Criminalising Migration: The Vicious Cycle of Insecurity and Irregularity,” Social Sciences 13, no. 10 (October 2, 2024): 94, https://doi.org/10.3390/socsci13100529.

    [5] Legislative Decree No. 286 of 25 July 1998.

    [6] Law No. 189 of 30 July 2002. In short, the law establishes a direct link between residence permits and employment contracts, increases penalties for smuggling irregular immigrants, introduces immediate refoulement at sea, and requires fingerprinting. See “The Bossi-Fini immigration law…,” La Milano, https://en.lamilano.it/by-the-media/The-Bossi-Fini-immigration-law–still-in-force–was-born-in-2002-with-the-second-Berlusconi-government./.

    [7] Law No. 94 of 15 July 2009.

    [8] The Italian legislature commonly uses interpolated numbering (e.g., Articles 10-bis, 10-ter, 10-quater) to insert new provisions into existing statutes while preserving the original numbering scheme. This technique avoids the need to renumber subsequent articles and maintains consistency in cross-references throughout legislation, judicial decisions, and legal literature.

    [9] The intention of the Berlusconi-led government at the time to combat irregular immigration had already emerged in 2008, with the introduction of a specific aggravating circumstance applicable when an offence was committed by a person irregularly present on Italian territory. (Circumstances are incidental elements of a criminal offence. They are not essential components of the offence itself and therefore do not form part of its constitutive elements; rather, they are added to the basic offence to affect its seriousness. Their function is to ensure that the punishment imposed is more closely proportionate to the gravity of the offence, in accordance with the principle of proportionality. Circumstances may be either aggravating or mitigating, depending on whether they result in an increase or a reduction of the penalty prescribed for the basic offence. See Francesco Carlo Palazzo and Roberto Bartoli, Corso di diritto penale (Turin: Giappichelli, 2021), 493, 499). However, in Judgment No. 249 of 8 July 2010, the Italian Constitutional Court declared the aggravating circumstance unconstitutional, holding that it amounted to a general and absolute presumption of greater dangerousness for irregular migrants, in violation of Articles 3 and 25 of the Italian Constitution. The full text of the judgment is freely available on the official website of the Constitutional Court, https://www.cortecostituzionale.it/scheda-pronuncia/2010/249.

    [10] Article 10-bis, paragraph 6, of Legislative Decree No. 286/1998 provides for a series of exceptional cases in which the proceeding is suspended or the judge must issue a nonsuit ruling.

    [11] Nicola Delvino and Sarah Spencer, “Irregular Migrants in Italy: Law and Policy on Entitlements to Services” (Oxford: COMPAS, University of Oxford, 2014), 4, https://www.compas.ox.ac.uk/publication/pr-2014-irregular_migrants_italy.

    [12] It is important to note that the original proposal envisaged imprisonment ranging from six months to four years for the offence in question. However, the significant controversy it generated, both at the international and domestic levels, ultimately led to its amendment and to the adoption of the penalty currently in force. Rosina, “Criminalising Migration,” 95 – 96.

    [13] The legal mechanism known as oblazione, set out in Articles 162 and 162-bis of the Italian Criminal Code, is designed to reduce the workload of the courts and speed up judicial proceedings. In practical terms, it allows a defendant to avoid continuing a trial by voluntarily paying a sum of money within a relatively short time frame. This amount is lower than the standard financial penalty that would otherwise apply. One key advantage is that payment through oblazione leads to the extinction of the offence and all related criminal consequences. However, this option comes with an important trade-off: by choosing to pay, the defendant gives up the opportunity to defend themselves in court. In other words, the defendant accept paying a reduced amount but also waive the possibility of being acquitted – and therefore of paying nothing at all if found not guilty at the end of the trial. Palazzo and Bartoli, Corso di diritto penale, 603.

    [14] In Italy, the justice of the peace is a specific type of judge who deals with less serious disputes, both in civil and criminal matters. However, justices of the peace are not career magistrates in the strict sense, as they have not passed the competitive public examination required to become an ordinary judge. Instead, they are classified as honorary judges. This means they have a legal background but typically pursue another profession – often as lawyers – and take on judicial duties for a limited period of time.

    [15] Raffaella Niro, “Spunti sul diritto speciale dei migranti e l’eclissi dei diritti,” Giurisprudenza Costituzionale, no. 1 (February 1, 2021): 203.

    [16] Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32008L0115.

    [17] Alberto Di Martino, La Criminalizzazione Dell’immigrazione Irregolare: Legislazione E Prassi in Italia, (Pisa: Pisa University Press, 2013), 35, https://www.torrossa.com/it/resources/an/2941142.

    [18] The Five Star Movement (abbreviated as M5S) was founded in 2009 as an association of citizens linked to Beppe Grillo and his blog, active since 2005 and widely followed thanks in part to Gianroberto Casaleggio. From the outset, it stood out for its criticism of political corruption and for organising demonstrations such as the V-Day events, which expressed widespread public discontent. The idea of the “Five Star civic lists” emerged from the blog, based on five core themes: connectivity, environment, water, development, and transport. After initial local successes in 2009, the movement grew rapidly, eventually becoming the largest party in the 2018 general elections with over 32% of the vote. It later formed a government with the League, led by Giuseppe Conte. In 2021, the Movement adopted a new statute and elected Conte as its president, defining the structure, roles, and values of the organisation. See “Movimento 5 Stelle,” Treccani, Enciclopedia Online, https://www.treccani.it/enciclopedia/movimento-5-stelle/.

    [19] The debate on the decriminalisation of irregular entry and stay was initially triggered by an amendment introduced by M5S senators Andrea Cioffi and Maurizio Buccarella. As reflected in the statements of Andrea Cioffi, the intention to decriminalise the offence of irregular entry and stay was primarily driven by the aim of achieving positive results in terms of public spending savings and speeding up the justice system.

    This did not imply allowing unrestricted access to the national territory. Rather, the proposal envisaged maintaining the administrative expulsion procedure as a means of sanctioning those who violate the rules governing entry and residence in the State. Moreover, Cioffi described Article 10-bis as both harmful and unjust, referring to the Lampedusa tragedy of 13 October 2013, in which more than 300 people lost their lives and even the survivors were subjected to criminal investigation. See Movimento 5 Stelle, “Depenalizzazione reato di clandestinità: la parola agli iscritti del M5S,” January 13, 2014, https://parlamentari5stelle.it/2014/01/13/depenalizzazione_reato_clandestinita_la_parola_agli_iscritti_del_m5s/.

    [20] See Martina Castigliani, “Abolizione reato immigrazione clandestina, gli iscritti M5S votano sì al referendum”, Il Fatto Quotidiano, January 13, 2014, https://www.ilfattoquotidiano.it/2014/01/13/abolizione-reato-immigrazione-clandestina-gli-iscritti-m5s-votano-si-al-referendum/841806/; “Immigrazione, la base M5S dice no al reato di clandestinità,” la Repubblica, January 13, 2014, https://www.repubblica.it/politica/2014/01/13/news/grillo_su_reato_clandestinit_decidono_gli_iscritti_attacco_di_campanella_a_casaleggio-75805398/; Judith Sunderland, “Comunicato: Italia cancella il ‘reato di clandestinità’,” Human Rights Watch, April 3, 2014, https://www.hrw.org/it/news/2014/04/03/258461.

    [21] Rosina, “Criminalising Migration,” 100 – 101.

    [22] Adelmo Manna, “Le fattispecie criminose in materia di immigrazione clandestina fra Corte Costituzionale e Sezioni unite penali”, Diritto penale e processo, no. 12, (2021).

    [23] See Italian Constitutional Court, 21 March 2019, No. 64, in DeJure; Italian Constitutional Court, 14 May 2024, No. 88, in DeJure.

    [24] Legislative Decree No. 8 of 15 January 2016.

    [25] Under the Italian constitutional system, legislative decrees (decreti legislativi) and decree-laws (decreti-legge) do not follow the ordinary parliamentary legislative procedure. Since they are exceptional and expedited law-making instruments, their adoption is subject to specific constitutional requirements. This framework reflects the fundamental principle of the separation of powers, which constitutes a cornerstone of the rule of law. Under the Italian Constitution, legislative power primarily belongs to Parliament and is exercised through the enactment of statutes. Only under specific conditions and in exceptional circumstances the Government can exercise legislative functions through decree-laws and legislative decrees. In particular, pursuant to Article 76 of the Constitution, legislative decrees can be adopted only based on a delegation law enacted by Parliament, and must comply with the principles and guiding criteria established therein, as well as with the defined subject matter of the delegation. These constitutional constraints are designed to prevent the Government – and, consequently, the political majority of the moment – from appropriating the legislative function through the enactment of ad hoc rules, thereby safeguarding the constitutional balance among powers and preventing authoritarian tendencies. Accordingly, legislative decrees that fail to comply with the principles and guiding criteria established by the delegation law may be declared unconstitutional.

    [26] Italian Constitutional Court, Judgment No. 81 of 19 June 2025, available at: https://www.cortecostituzionale.it/scheda-pronuncia/2025/81. Turning to the facts of the case, S.H. had been convicted under Article 10-bis of the Consolidated Immigration Act and subsequently appealed the decision. In adjudicating the appeal, the judge (the second-instance court in the Italian judicial system is responsible for reviewing judgments rendered at first instance) referred a question of constitutional legitimacy concerning Article 3 of Legislative Decree No. 8 of 15 January 2016 – adopted pursuant to the enabling legislation enacted by Parliament in 2014. Specifically, the court challenged the provision insofar as it does not provide for the repeal of the offence of unlawful entry and stay in the territory of the State and its reclassification as an administrative offence.

    [27] Sara Bianca Taverriti, “Safe Reporting of Crime for Victims and Witnesses with Irregular Migration Status in Italy”, (Oxford: University of Oxford, 2019), 11, https://air.unimi.it/retrieve/b888eecf-cb44-4869-b8e8-40889e6c5fd2/SR19-Italy-country-report.pdf.

    [28] Article 50 of the Italian Code of Criminal Procedure establishes the general rule that criminal offences are prosecutable ex officio, meaning that criminal proceedings are initiated by the judicial authorities irrespective of the victim’s wishes. However, certain offences are prosecutable only upon complaint by the injured party (querela), meaning that the initiation of criminal proceedings is contingent upon the victim filing a formal complaint. Such offences are generally regarded as less serious in nature or as primarily affecting private rather than public interests.

    [29] Salvatore Geraci et al., “La salute degli immigrati: una salute di tutti,” in

    Osservatorio Romano sulle Migrazioni, VI Rapporto (Roma: Caritas di Roma, 2010), 135.

    [30] Geraci et al., “La salute degli immigrati,” 134 –135.

    [31] As set out in Article 35, paragraph 3 of Legislative Decree No. 286/1998: “Foreign citizens present on the national territory who are not in compliance with the rules on entry and residence are guaranteed, within public and accredited healthcare facilities, outpatient and hospital care that is urgent or in any case essential, including continuous care, for illness and injury, and are included in preventive medicine programs aimed at safeguarding individual and public health. In particular, the following are guaranteed:
    a) social protection of pregnancy and maternity, on equal terms with Italian citizens, pursuant to Laws No. 405 of 29 July 1975 and No. 194 of 22 May 1978, and the decree of the Minister of Health of 6 March 1995, published in Official Gazette No. 87 of 13 April 1995, on equal terms with Italian citizens;
    b) protection of the health of minors in the implementation of the Convention on the Rights of the Child of 20 November 1989, ratified and implemented under Law No. 176 of 27 May 1991;
    c) vaccinations in accordance with regulations and within the framework of preventive public health campaigns authorized by the regions;
    d) international prophylaxis measures;
    e) prevention, diagnosis and treatment of infectious diseases, including any necessary measures to eliminate related sources of infection”.

    [32] Cecilia Corsi, “Il diritto alla salute alla prova delle migrazioni,” Istituzioni del Federalismo 1 (2019): 52 – 53.

    [33] Gianpiero Coletta, “L’accesso alle cure degli immigrati irregolari”, BioLaw Journal – Rivista di BioDiritto, n. 4 (2021): 141.

    [34] This principle is grounded in Article 32 of the Constitution, according to which “The Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent”. See Corsi, “Il diritto alla salute alla prova delle migrazioni”, 53.

    [35] Article 34 of the Constitution: “Schools are open to everyone. Lower education, provided for at least eight years, is compulsory and free of charge. Those who are capable and deserving, even if lacking financial means, have the right to attain the highest levels of education. The Republic shall make this right effective through scholarships, allowances to families, and other benefits, which shall be awarded through competitive procedures.”

    [36] Article 45 of Presidential Decree No. 394 of 31 August 1999: “Foreign minors present on the national territory have the right to education regardless of the regularity of their residence status, under the same forms and conditions provided for Italian citizens. They are subject to compulsory education in accordance with the provisions in force on the matter. The enrolment of foreign minors in Italian schools of every level and type takes place according to the procedures and conditions established for Italian minors. Enrolment may be requested at any time during the school year. Foreign minors lacking civil registry documentation, or possessing irregular or incomplete documentation, shall be enrolled conditionally”.

    [37] Ludovica Manna, “Il diritto alla sanità e all’istruzione degli immigrati irregolari,” in La politica dell’Unione in tema di immigrazione, ed. ELSA Napoli (Napoli: ELSA Napoli, 2018), 186.

    [38] Ministry of the Interior, Circular letter No. 101 of 30 December 2010.

    [39] Ministry of Education, University and Research, Circular letter No. 28 of 10 January 2014.

    [40] Delvino and Spencer, “Irregular Migrants in Italy,” 17 –18.

    [41] Article 6, paragraph 2 of the Legislative Decree No. 286 of 25 July 1998: “Except for measures concerning sports and recreational activities of a temporary nature, those relating to access to healthcare services referred to in Article 35, and those relating to compulsory educational services, the residence-related documents referred to in Article 5, paragraph 8, must be presented to public administration offices for the purpose of issuing licenses, authorizations, registrations, and other measures of interest to the foreign national, however denominated”.

    [42] Ministry of the Interior, Circular letter No. 19 of 7 August 2009.

    [43] Italian Constitutional Court, Decision No. 245 of 2011. The full text of the judgment is freely available on the official website of the Constitutional Court, https://www.cortecostituzionale.it/scheda-pronuncia/2011/245.

    [44] Delvino and Spencer, “Irregular Migrants in Italy,” 30 – 32.

    [45] Guidelines, https://www.fiopsd.org/wp-content/uploads/2022/06/Guidelines.pdf.

    [46] Article 622, paragraph 1, of the Royal Decree of 19 October 1930, No. 1398: “Whoever, having knowledge of a secret by reason of their status or office, or of their profession or art, discloses it without just cause, or uses it for their own or another’s benefit, shall be punished, if harm may result from the act, with imprisonment for up to one year or with a fine ranging from three hundred to five thousand lire”.

    [47] Taverriti, “Safe Reporting of Crime for Victims and Witnesses…,” 14.

    [48] https://www.safereporting.eu/project/.

    [49] Marco Maria Scoletta et al., L’accesso alla giustizia per le vittime di reato con status migratorio irregolare in Italia: Percorsi di denuncia sicura nella città di Milano (Safe Reporting, October 9, 2023), 10 – 12, https://www.safereporting.eu/safe-milano/.

    [50] Scoletta et al., L’accesso alla giustizia, 20 – 21.

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