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I've spent quite a lot of time looking for an answer to the following question, I and also tried to call my local police office but I didn't get a real answer. So hopefully I'll find some help here. Looking on this website I found similar cases to mine, however the police told me something different, so I'd like to be sure about the right thing to do.

I'm Italian and currently in Italy. My wife is Chinese and living here with me. She applied for a residence permit (or, to be precise, what I think is called a "card for a EU family member"), however, as one could expect, we probably will have to wait several months before we actually get the permit. During that time, we are allowed to stay in Italy since we can prove she has booked the appointment for such permit. It is quite clear to me (as explained by the police officer) that, however, she is not allowed to travel to other Schengen countries. This is because even if she has a tourist visa valid until October 2024, clearly she has to respect the 90/180 days rule. Now that she has to wait for the residence permit she will use all those 90 days by staying in Italy and, thus, cannot move through Schengen. I am waiting for a response about a job in Austria, but from my understanding she will not be able to legally step into the country (let's assume they check at the border) until she gets the permit in Italy? This is because after 90 days she is not allowed into the Schengen area anymore, but only in Italy where she booked the appointment for the residence permit. However, looking at answers on this website, it doesn't seem to be the case and she's free to follow me around since I'm an Italian citizen as she is married to me. Also we would like to travel soon and such possibility would come in handy.

P.S. the police office told me she would have to reapply for another Schengen visa when we decide to move to Austria (which would we in the next couple of months in case), but it seems weird as a solution since she has already a valid visa until next October (and I don't see how a new one could bypass the 90/180 in a different way than the old one). Maybe he wasn't aware of the differences for spouses of EU Vs non-EU citizens? Please help me clear up this big confusion ;)

These are the questions: Moving to Portugal while my wife has stayed in Schengen area for more than 3 months on the basis of a pending residency permit application in Finland?

Travel while waiting for Carte de Sejour

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The 90 days in any 180 period rule does not apply to family members of an EU citizen when accompanying or joining the EU spouse.

When together, the family member and their EU citizen spouse are ‘persons enjoying the right of free movement under Union law’ as stated in Article 2(5) of the Schengen Border Code.

So the time spend in Italy and any further travel to Austria togeather fall under the provisions of the DIRECTIVE 2004/38/EC (freedom of movement), where the family member must travel with a valid passport and not the Schengen Border Code provisions of Article 6 (where the 90 days in any 180-day period rule is defined).

An Article 10 residence card (which would be issued in Austria when you move there) or in your case (as an Italian citizen living in Italy) a Permit of Stay (carta di soggiorno), which you do not yet have, is all that needs to be shown.

A Marriage certificate, showing that your wife is a spouse of an EU citizen would have to be shown in Austria if checked.


Sources:

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  • So just to be 100% sure, even without the residence card, we can move around with only the passport now
    – Liuka
    Dec 31, 2023 at 9:37
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    @Liuka Together with proof that she is a spouse of an EU citizen: yes. Dec 31, 2023 at 10:19
  • Since I know now that I had to look for exceptions to the 90/180 days rule, I actually found official documentation for it: europa.eu/youreurope/citizens/travel/entry-exit/non-eu-family/… (under length of stay).
    – Liuka
    Dec 31, 2023 at 10:52
  • @Liuka Yes, that is often the case. I have added that link to the answer. Dec 31, 2023 at 11:10

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