4

My wife has an Italian residence card. We recently moved to the UK and she has now been granted pre-settled status and accordingly got her UK residence card.

While waiting for the UK residence card, we travelled in the Schengen area a couple of times while still using her Italian residence card. Now that she got her UK residence card we've finally been able to confirm to the Italian consulate our new address in the UK.

We have more travel planned towards Schengen in the near future (Germany and Italy). We will be travelling together, so this will be covered under the free movement directive for EU citizens and their non-EU family members.

I'm trying to confirm if she'll be able to keep using her Italian residence card, or if she'll have to apply for visas. According to Article 11 of 2004/38/EC:

The validity of the residence card shall not be affected by temporary absences not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

So, I'm thinking that as long as we haven't been outside of Italy for more than 6 months (and as long as we return to Italy once every 6 months), the residence card should still be valid, and we should thus be able to continue using it.

OTOH, that feels a bit against the spirit of the card being provided for the purpose of residing in the country, so I imagine that there could be a process whereby its validity gets terminated.

Is there? I haven't been able to find any information about this anywhere. Would we receive communication about this at our UK address (which the Italian authorities are aware of)?

I've seen that before there have been other questions that entailed the possibility of using a Schengen residence card after leaving the country of residence, though it seems that there hasn't been any conclusive information about my concern, for example a comment states:

do the Swedish authorities know you've moved away? Even if you have, the residence card might still be legally valid. Even if it isn't, it might not have been entered into a database of invalidated documents.

Since in Italy it's not even normally possible to get your address recorded at the register office (anagrafe) until after getting the residence card, it feels like the two systems might be quite decoupled, and thus an update in the register office systems might not even be relevant for causing a change in the immigration systems.

11
  • 2
    "The validity of the residence card shall not be affected by temporary absences not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country." This means that she should in theory be spending MORE THAN six months IN Italy.
    – Ozzy
    Commented Jul 10, 2023 at 8:47
  • 2
    If you have done this through the Registry of Italians Resident Abroad (A.I.R.E.) system, then they will know that both of you are no longer residents. Get a free visa, that should be issued immediately, for family members of EU Citizens. EU Family members – Consolato Generale d'Italia Londra Commented Jul 10, 2023 at 8:53
  • 2
    If she has permanent residence status then she can be out of Italy (but within the EU) for 6 years and if out of the EU for only 12 months. After that, the permanent residence title is lost. see: poliziadistato.it/articolo/…
    – Ozzy
    Commented Jul 10, 2023 at 9:42
  • 2
    @Ozzy Note that a Residence Card for EU Citizens' family members and EC residence permit for long-term residents (quoted in the link) are 2 different things. Or the permit for Family members of an Italian citizen. Commented Jul 10, 2023 at 11:17
  • 1
    Note about your quotation: it is about (temporary absences), which it is not the case you describe. The problem I see, if she keep residence in Italy and Italy requires some document, she must go in person (she is resident), and if grumpy bureaucrat get particularly annoyed, the risk of a ban in Schengen Area is high. Low probability, but high price. It is up to you. Commented Jul 11, 2023 at 15:25

1 Answer 1

3

I assume that your wife isn't a national of an Annex II country such as Canada or Japan; if she is then she doesn't need a visa in any event.

So, I'm thinking that as long as we haven't been outside of Italy for more than 6 months (and as long as we return to Italy once every 6 months), the residence card should still be valid, and we should thus be able to continue using it.

But your absence isn't temporary. You have relocated. You no longer reside in Italy.

But EU law does not specify when a residence permit (or a residence card issued under free movement law) becomes invalid. It only establishes limits within which national law must operate. So Italy can provide that the Italian residence card becomes invalid under whatever conditions it chooses, as long as those conditions comply with the directive. In particular, any automatic loss of validity because of absence must comply with article 11 -- the provision can be more generous, but it cannot be less generous.

But really, you should not worry about what any authorities make of the card, because Article 5(4) of the directive provides

Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

In practice, this means that if the two of you can get to the passport inspector and prove that you are married and that one of you is an EU citizen, the other should be given a visa at the border, if one is required (in practice, this seems to boil down to being admitted without a visa, because the visa is needed for entry -- under article 5. There's no need to have a visa during the visit.

So all you need to worry about is the airline. Will the airline be able to see that the residence card was cancelled (if it has been)? I suppose not.

But the consequences of being wrong about that are fairly severe, and the cost of protecting against that possibility is the time and effort of getting a free visa. I'd only risk traveling with the residence card if I were unable to get the visa for some reason or if getting the visa presented a significant difficulty.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .