T.A.R. per la Puglia, order no. 316 of 8 July 2022
Emersione 2020 - Suspension for erroneous assessment of employer's insufficient income
The Apulia Regional Administrative Court, Bari seat, by order of suspension for the purpose of re-examination, granted the application with the following reasoning: "Considering that, after a summary examination of the precautionary phase, the complaint concerning the excess of power of the Public Administration with regard to the incorrect assessment of the employer's insufficient income (pursuant to art. 103, paragraph 1, decree law no. 34 of 19 May 2020, as converted by law no. 77 of 17 July 2020, and Article 9, paragraph 4, of Ministerial Decree of 27 May 2020), taking into account the VAT form produced and the turnover equal to € 39,261.00, as reported in Schedule VE24 of the 2020 VAT Form for tax year 2019;
Noting, furthermore, that the Administration, instead of issuing a measure of acceptance or rejection solely on the basis of the turnover of the year preceding that of the submission of the application, i.e. the year 2019, issued a measure of rejection on the basis of the documentation produced subsequently, which corroborated what was the employer's economic capacity already demonstrated by the documentation produced at the time of regularisation;
Considered, finally, that the Administration should in any case have assessed the applicability in this case of the provision of Article 5, paragraph 11-bis of Legislative Decree no. 109/2022 ("In cases where the declaration of emersion is rejected for reasons attributable solely to the employer, after verification by the Single Desk for Immigration of the existence of the employment relationship, demonstrated by the payment of the sums referred to in paragraph 5, and of the requirement of presence on 31 December 2011 referred to in paragraph 1, the worker is issued a residence permit for awaiting employment. The criminal and administrative proceedings referred to in paragraph 6 against the worker shall be closed. With regard to the employer, paragraph 10 of this Article shall apply');
Noting, as regards the precautionary presumption of periculum in mora, that failure to suspend the aforementioned measure could result in the foreigner being obliged to leave Italian territory and his job;
Considered, therefore, that the necessary precautionary conditions exist for the granting of the requested precautionary measure;
Considering, finally, that in view of the peculiarities of the present dispute, there are just reasons of equity to compensate the costs (...)".
Prof. Avv. Paolo Iafrate
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