Illegitimate refusal of the PdS: the request for renewal was in substance aimed at converting the PdS from seasonal to subordinate work - T.A.R. per la Puglia, sentence no. 480 of 11 April 2022
The Albanian citizen entered Italy with a multiple entry visa for subordinate work lasting 270 days, thanks to the nulla osta obtained by the employer from the S.U.I. of Bari. The same signed the residence contract for subordinate work and, consequently, obtained a residence permit for seasonal work.
The employer communicated to INPS with Model UNI-LAV the transformation of the contract from seasonal to open-ended; before the natural expiry of the residence permit, the applicant turned to Patronato Epas as he needed to regularise his position in the territory in order to continue the new employment relationship.
The Police Headquarters in Bari adopted a measure of inadmissibility of the application based on the applicant's error consisting in having submitted an application for renewal (no longer possible) instead of an application to convert the residence permit for seasonal work into a residence permit for permanent employment.
"In fact, as correctly pointed out by the applicant, the Administration unlawfully failed to communicate both the notice of initiation of proceedings under Article 7 of Law no. 241/1990, and the notice of rejection under Article 10-bis Law no. 241/1990 (in relation to which, following art. 12, paragraph 1, lett. i) decree-law no. 76 of 16 July 2020, converted, with amendments, by law no. 120 of 11 September 2020, the provision of art. 21-octies, paragraph 2 law no. 241/1990 no longer applies).
If (...) had been duly informed in advance of the negative conclusion of the proceedings, he could have easily pointed out to the authorities that the request for renewal submitted by him was essentially aimed at converting the residence permit for seasonal work into a residence permit for permanent employment.
As noted by T.A.R.. Lombardy, Milan, Sez. I, 25.8.2020, no. 1597 "The appeal must be accepted, since, according to established case-law, in the absence of an express provision regarding the applicant's obligation to obtain the certificate of availability of a quota, the Administration must proceed with this fulfilment ex officio, and therefore the refusal of a residence permit based on the failure to submit the application for verification of the entry quota is illegitimate (T.A.R.. Lombardy, Milan, Sec. I, 12.4.2018 no. 987, T.A.R. Lazio, Rome, Sec. II, 1.6.2016, no. 6458, T.A.R. Toscana no. 1327/2014, T.A.R. Marche, Sec. I, 4.4.2013, no. 269), as took place in the present case.". More precisely, "The seasonal worker, who has regularly worked in the national territory for at least three months, and who is offered a subordinate work contract for a fixed-term or open-ended period, may request at the Single Desk for Immigration the conversion of his residence permit into a subordinate work permit, within the limits of the quotas referred to in Article 3, par. 4") to the existence of the conditions for the conversion of the residence permit for seasonal work into a residence permit for subordinate work for a fixed-term or open-ended period (unlike the previous art. 24, par. 4, legislative decree no. 286/1998: "He may also convert the residence permit for seasonal work into a residence permit for subordinate work for a fixed-term or indefinite period, if the conditions are met") must be understood in the sense of the non-requirement of the applicant's return to the country of origin.
It follows that, in the present case, it could have been held that the conditions existed for the conversion of the application for renewal of a residence permit for seasonal work into an application for a residence permit for indefinite work in consideration of the documentation produced by the person concerned'.
Prof. Avv. Paolo Iafrate
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