1

I am about to marry a German Citizen who has been living Italy for the last five years. I arrived in Italy on a Schengen tourist visa and we are going to get married in Denmark before my tourist visa runs out.

I will try to apply for residence permit in Italy before my tourist visa runs out, but there is a chance that that will not happen. I have a couple of questions on that:

  1. I've heard that my right to live in Italy (without work permit) gets established when I marry her, not when I get the Italian residency permit. Is that true? So if my tourist visa runs out after I marry her, even if I don't have the residency permit I have a right to stay in Italy.

  2. If I apply for Italian residency permit after my tourist visa runs out, would I be rejected because of that, even though my marriage happened when I was still on my tourist visa?

  3. When I apply for residency permit, would I get a temporary permit on the spot?

  4. If I want to travel outside of EU and come back, by myself, with no Schengen days left but post marriage, would I be able to just present my marriage certificate to come back? Or would I have to present the residency permit?

1 Answer 1

1
  1. That is correct.
  2. No.
  3. I'm not sure, but some questions we've had here and on Travel suggest that you will not.

If I want to travel outside of EU and come back, by myself, with no Schengen days left but post marriage, would I be able to just present my marriage certificate to come back? Or would I have to present the residency permit?

First, a word about terminology: a "visa" is a sticker in your passport that you get from a consulate before traveling. If you are from an "Annex II" country (for example, Japan) then you do not have a visa. I mention this because people often use the word "visa" to mean "permitted duration of visa-free presence," which would make the next paragraph somewhat confusing.

In theory, you do not need any document unless you are from a country whose nationals require a visa for short visits (an "Annex I" country). That you speak of an expiring visa suggests that this might be the case. In this case, however, the visa is primarily necessary for the airline. If you are entering by a land border, you should be able to get in by showing your marriage certificate and establishing that you are traveling to join your spouse.

If you are an Annex II national (no visa required) or if your tourist visa is still valid, you don't need to worry about that.

Now, another word about terminology. EU law is careful to call the document you need a "residence card" instead of a "residence permit." This distinction underscores the fact that the document is not evidence of some authority giving you permission to reside in its jurisdiction. Rather, the card is evidence of a right that flows to you automatically by law. The name "permit" is therefore seen as inappropriate. This is perhaps hair splitting, but it does illustrate a principle that is central to your question.

Critically, the right does not depend on possession of the document, and any penalties related to not having the document must be similar to those imposed on EU citizens who lack an ID card and passport. These penalties cannot extend to removal or exclusion from the country's territory. These penalties cannot be imposed if you apply for the residence card within three months of establishing yourself in Italy, but if you do then there should be no more serious consequence than an administrative fine.

References:

10
  • Hi, thank you so much for your detailed response! On the visa, I should have mentioned this - I am from the US so I don't need a visa to visit less than 90 days in 180 day period. Do you think the airline and the border control would be okay entering with my short term visa exhausted (i.e i've spent more than 90 days) if I have a marriage certificate?
    – phil
    Nov 15, 2022 at 7:11
  • @phil the airline won't pay attention at all. Their only concern is that you don't require a visa; they don't look at your entries and exits or count the days. The border officers might well do that, but they should let you in if you can show that you're married to an Italian citizen and that you are traveling to join your spouse. So you may need, in addition to your marriage certificate, a copy of your wife's Italian ID or passport and some evidence that she is in Italy (proof of residence registration or other proof of address or phone number). They might not ask for that, but they can.
    – phoog
    Nov 15, 2022 at 8:06
  • got it, thank you very much. so i can do this all by myself? i don't have to travel with her, i can enter EU by myself if I have a proof that i am married to a woman who lives in Italy? does it matter that she's actually not Italian, but German living in Italy (but she's of course registered here)
    – phil
    Nov 15, 2022 at 9:39
  • @phil It's actually better that she's not Italian, as I mentioned in the answer (thinking for some reason that she was). She does need to be from the EU (or EEA/CH) which she is. It doesn't matter where she lives, only that you are traveling to join her. In this case, the easiest way to establish that is to show where she lives. I suspect that they won't go into that in detail, but of course you should be prepared for the possibility that they do. You should probably read the first few chapters of the free movement directive or at least the EU's public information pages. I'll add some links.
    – phoog
    Nov 15, 2022 at 10:10
  • 1
    @phil After your marriage apply for the residence card as family member of an EU citizen at local police headquarters (Questura). A certificate documenting that you are a family member of an EU citizen should be issued immediately, the residence card will take longer. Upon return, show the certificate stating that you are joining your spouce. You will then be exempt from the 90 day rule. Nov 15, 2022 at 16:15

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service and acknowledge that you have read and understand our privacy policy and code of conduct.

Not the answer you're looking for? Browse other questions tagged or ask your own question.