Resource, Enemy or Refugee? Depiction of the Foreigner and Models of Immigration Criminal Law

Migration to Italy is recent, dating back to the early nineties. For a few years, however, a laissez faire attitude was adopted, and migration flows – despite steadily increasing – were not even administratively disciplined. Subsequent and sectorial interventions on the labour law side have since then at least tried to regulate the work done by the alien, considering him a resource for the Italian economic system. It was only in 1998 that, with the so-called Turco-Napolitano law, an organic framework for the discipline of migratory flows was finally created. Criminal offenses were also introduced, albeit they were only marginal ones mainly conceived to protect administrative functions. That legislative text underwent subsequent modifications, especially through the much criticized “Bossi-Fini” law, and the so-called “Security packages." These developments, which culminated in the criminalization of “illegal migration” and in the structuring of illegal permanence as an aggravating circumstance for any crime committed by a foreigner, have gradually brought to a clear distinction, from a criminal law perspective, between the regular and the irregular foreigner. Moreover, the foreigner has recently also become the central figure of other representations. Reference is made here to the discipline dedicated to the recognition of international or humanitarian protection that has direct impact on national migration law, on the management of migration flows and, at the same time, on the penal system. In the last twenty years different representations of foreigners have therefore been presented through the law, and the latter has moved from being mainly considered as workforce, in period of economic growth, to becoming the dangerous illegal stayer of the typical “criminal law of the enemy” perspective. The security-logic has then cyclically been juxtaposed to the ‘humanitarian’ one that inspired the latest measures related to the protection of the so called refugees. The paper intends to dwell on how these representations of migration, often partial and stereotypical, are deeply affecting the imagination of the Italian community, and how this phenomenon can also determine some normative choices, which though, even at a distance of more than twenty years from the intensification of migratory fluxes to Italy, still do not seem to be able to manage immigration properly, nor to regulate the complex dynamics of multiculturalism.