LA CONDIZIONE DI PRECARIETÀ DEL MIGRANTE: UNA PROSPETTIVA GIUSLAVORISTICA

This doctoral thesis focuses on the employment relationship of non-EU nationals and studies its peculiarities, with particular attention to the legal position that the foreigner holds in the Italian legal system and the effects that this condition produces on the employment relationship. The first part of the thesis traces the legislative framework that regulates the entry and stay of non- EU nationals in the Italian legal system, taking up the classification adopted by the legislation of migration for humanitarian reasons and migration for economic reasons. This distinction, which has been widely criticized by the scholars, entails the attribution of different statuses to the non-EU nationals, reflecting different legal regulation and differential protections. The first chapter reconstructs the legal regulation of migration for humanitarian reasons, which is based on international protection and other forms of complementary protection, to investigate the extent to which the legislation and the interpretation of it by case law, affect the labor relationship and the status of the non-Eu worker. The second chapter focuses on economic migration and the cumbersome legislation that regulates it, introducing a series of entry and stay requirements that have no other effect than to incentivize migrants to use irregular channels to enter the host country. Finally, the examination of the legal regulation of migration concludes, in the third chapter, with that having to do with irregular migration, characterized precisely by the failure to meet the requirements for entering the host country, which produces legal effects on the condition of the foreigner, both as a person and as a worker. The reconstruction of the legal framework reveals the existence of a link between residence permit and labor relationship. The link is evident – in the case of migration for humanitarian reasons – from the valorization by case law of the existence of an employment relationship for the purpose of issuing a residence permit for special protection and – in the case of migration for economic reasons – from the legislation itself which gives a central role to the employment relationship, not only because it represents the reason for the act of migration, but also because the existence of an employment relationship and the income derived from it are necessary elements for the foreigner's long-term stay in the receiving country. The outcome of configuring the aforementioned nexus is to place the foreign worker in a condition of extreme contractual weakness. Therefore, the effects that this link has on the contractual balance are addressed in the fourth chapter, highlighting how the position of power assumed by the employer can condition the worker's stay in the receiving country. This reflection makes it necessary to investigate the framing of the aforementioned power, tracing the evolution of employer powers, which from de facto powers have been "juridicized" by the legislator and it is brought back into the realm of legal powers. The ulterior effects of the exercise of the termination power on the migrant worker raises the question of the reasonableness of equal treatment of Italian and non-EU workers. This, having the effect of ignoring in the employment relationship the diversity between the legal status of the foreigner, linked to a conditional right of residence, and that of the citizen, considers irrelevant the detrimental effects that can be produced on the foreign worker as a result of the withdrawal. Thus, an overall rethinking of the labor relationship involving the non-EU national is required in light of the outlined imbalance, which places the worker in a position of weakness because of the effects that such power can produce on his/her intimate sphere. The research therefore aims to investigate what correctives could be adopted to counter this asymmetry. Within this framework, a particular space will be devoted to political rights, which seem today to constitute one of the ways to mitigate the precarious condition that connotes the non-EU worker.