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My wife and I are looking to travel Europe for 6 months next year and are finding it very difficult/anxiety-inducing to sort through the visa rules afforded to non-EU spouses of EU citizens.

I am an Australian citizen and my wife is a dual Australian/Italian citizen, both permanent residents in Australia. Our Australian marriage has been registered in Italy through our regional Italian consulate.

Obviously my wife as an EU citizen has right to free travel/residency/work etc. within the EU. I am aware that as an Australian citizen, the 90/180 day rule applies within the Schengen area (i.e. maximum of 90 days within the Schengen area within a 180 day period for travel purposes, visa free). Given we want to stay for 6 months however, we have been investigating the 'Right to free movement' for non-EU spouses of EU citizens.

Our understanding is as follows:

  • For any member state within the EU other than Italy, I have the right to assert that I am a family member of an EU citizen that I am travelling with. As long as I have supporting documentation (i.e. the marriage certificate and a passport), I should be free to stay 'for consecutive periods of up to 3 months per EU country visited. They are not subject to the overall limitation of up to 90 days in a 180-day period that applies in the Schengen area' (see https://europa.eu/youreurope/citizens/travel/entry-exit/non-eu-family/index_en.htm, 'Length of stay' section). Given we are not staying for more than 3 months in any individual country, our understanding is we should also not need to obtain a residence card/visa in that country.
  • In the case of Italy, national rules apply. In this case, my understanding is the 90/180 rule will apply (along with restrictions on working, etc without the appropriate visa) - however, again as long as we only stay within Italy for a maximum of 90 days within an 180 day period, this should also not require us to obtain a residence card/visa (see https://europa.eu/youreurope/citizens/residence/family-residence-rights/non-eu-wife-husband-children/index_en.htm#in-the-home-EU-country-1).

For clarity, our intended itinerary is:

  • Land in Italy and stay for a maximum of 2.5 months
  • Travel to other EU member states such as (both Schengen/non-Schengen) as well as some non-EU states for no more than 1-2 months in any individual country for the remaining 3.5 months.
  • Return to Australia.

We have been in contact with two official sources so far (our regional Italian consulate in Australia and Your Europe Advice) and both have had different advice to the above. They have suggested that on landing in Italy, we would be required to request a 'Carta di soggiorno di familiare di un cittadino dell'Unione' (https://sdg.interno.gov.it/it/d4-prescrizioni-in-materia-carte-di-soggiorno) and go through the process of applying for a residence card.

Notwithstanding the fact that I have seen that processing this application can take between 2-6 months both on this site and in other places, I cannot see how this is necessary in our scenario. We do not intend to stay in Italy for more than 3 months and we are not intending to stay in any other individual EU country for more than 2 months.

Are we correct in our view of the relevant laws and we should have no issues as long as we assert my right to travel with my EU spouse at borders? Or are we completely misconstruing the law here and likely to have issues without a residence card?

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  • How hard is it to just get an Italian passport, I've never had one. With some countries, once you are married it is very easy; other countries, a pain.
    – Fattie
    Commented Jun 20 at 14:57
  • Life on this planet is incredibly easier when you have an EU passport, I would encourage you to get one ASAP. Once you have children it's a total nuisance if you don't have one.
    – Fattie
    Commented Jun 20 at 15:00
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    How long ago have you been married? I looked into it a few years ago and if i remember correctly as a spouse of an Italian Citizen you should be able to get an Italian Passport after three years of marriage (or five, can't remember). if you qualify, it might be worth going that route
    – bracco23
    Commented Jun 20 at 16:55

3 Answers 3

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Given we are not staying for more than 3 months in any individual country, our understanding is we should also not need to obtain a residence card/visa in that country.

Indeed, in states other than the one of citizenship you don't need a residence card for stays up to 90 days.

however, again as long as we only stay within Italy for a maximum of 90 days within an 180 day period, this should also not require us to obtain a residence card/visa

IANAL, but you indeed do not seem to need anything as the Italian government has extended the same rules that are applicable to Family Members of Union Citizens to Family Members of Italian citizens :

DECRETO LEGISLATIVO 6 febbraio 2007, n. 30 - Attuazione della direttiva 2004/38/CE relativa al diritto dei cittadini dell'Unione e dei loro familiari di circolare e di soggiornare liberamente nel territorio degli Stati membri.

Art. 23. Applicabilità ai soggetti non aventi la cittadinanza italiana che siano familiari di cittadini italiani

Le disposizioni del presente decreto legislativo, se più favorevoli, si applicano ai familiari di cittadini italiani non aventi la cittadinanza italiana.

Art. 23. Applicability to persons not having Italian citizenship who are family members of Italian citizens

The provisions of this legislative decree, if more favorable, apply to family members of Italian citizens who do not hold Italian citizenship

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  • Thanks - this appears to align with our reading of the legislation as well.
    – user148843
    Commented Jun 19 at 12:35
  • I have two followup questions 1. The 3 months per individual country - does that reset if we leave the country and come back again? For example if we come to Germany for 2 months and then a month later come back again for another 2 months, would that count as 3 months? Does this change depending on if we leave the Schengen area during that time or not? 2. To confirm, does the 90/180 day rule pause when in a country other than Italy in this case? e.g. on return to Italy (only spending <90 days in Italy within 180, but having spent >90 days in Schengen), will this cause any issues for us?
    – user148843
    Commented Jun 19 at 12:42
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    > To confirm, does the 90/180 day rule pause when in a country other than Italy in this case?: Yes, it does, you are benefiting from the same privileges as your spouse. Commented Jun 19 at 12:55
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    @user148843 "The 3 months per individual country - does that reset if we leave the country and come back again?" In theory, yes, but there is no clear definition of "leave." It will presumably be relative to the degree to which you are established in the first country. For example, if you plan to spend six months renting a house in Vienna, a day trip to Bratislava is probably not going to cut it. If you're staying in different hotels the whole time it might be different.
    – phoog
    Commented Jun 19 at 20:58
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    But one reason there's no clarity on this is hardly anyone gets in trouble for it (nobody is tracking your movements), and if you do it will be a matter of paying a fine that in most countries is going to be fairly small.
    – phoog
    Commented Jun 19 at 20:59
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I've received some obviously incorrect advice from Your Europe Advice on a similar question that I had sent in because someone else had posted a question here about some obviously incorrect advice they'd received from Your Europe Advice. I would not pay too much attention to what they have to say on the question of derivative free movement rights.

I am aware that as an Australian citizen, the 90/180 day rule applies within the Schengen area (i.e. maximum of 90 days within the Schengen area within a 180 day period for travel purposes, visa free).

Not when you're with your wife, it doesn't. The Schengen Borders Code says this explicitly, if somewhat convolutedly. In particular, the 90/180 rule only applies to "third-country nationals." Australians are normally third-country nationals, of course, but in the Schengen Borders Code the term "third-country national" is defined to exclude people who enjoy derivative free movement under directive 2004/38/EC. This means that when you travel with your wife, you are not a third-country national with respect to the Schengen Borders Code. This is true even though you are a third-country national under the plain meaning of the term as well as for most other purposes under EU law.

For any member state within the EU other than Italy, I have the right to assert that I am a family member of an EU citizen that I am travelling with. As long as I have supporting documentation (i.e. the marriage certificate and a passport), I should be free to stay 'for consecutive periods of up to 3 months per EU country visited. They are not subject to the overall limitation of up to 90 days in a 180-day period that applies in the Schengen area' (see https://europa.eu/youreurope/citizens/travel/entry-exit/non-eu-family/index_en.htm, 'Length of stay' section).

Correct, except you are unlikely to need to show proof of marriage; a verbal declaration is likely to be sufficient. On the other hand, if you are asked for formal proof, you'll need not only your own passport but also your wife's Italian passport or identity card (or other proof of her Italian citizenship). In addition to your marriage and your wife's Italian citizenship, you'll also need to prove that you two are traveling together or, if you aren't, that you are traveling to join your wife. For a vacation together that shouldn't normally be difficult because, well, you'll normally be together.

In the case of Italy, national rules apply. In this case, my understanding is the 90/180 rule will apply (along with restrictions on working, etc without the appropriate visa) - however, again as long as we only stay within Italy for a maximum of 90 days within an 180 day period, this should also not require us to obtain a residence card/visa (see https://europa.eu/youreurope/citizens/residence/family-residence-rights/non-eu-wife-husband-children/index_en.htm#in-the-home-EU-country-1).

Yes and no. National rules apply, but as mentioned elsewhere Italy's national rules state that family of Italian citizens must be treated at least as favorably as family of EU citizens. So the 90/180 rule still does not apply.

Are we correct in our view of the relevant laws and we should have no issues as long as we assert my right to travel with my EU spouse at borders? Or are we completely misconstruing the law here and likely to have issues without a residence card?

Yes.

In thinking about these things, people often lose sight of an important element. They concentrate so hard on what they can and can't do that they fail to consider what happens if they violate the rules. This is important even when, as in your case, you will remain well within the rules, because, as you've seen, there is some confusion and disagreement about just what the rules mean. For example, some people seem to think that the derivative right of free movement only accrues to a family member when that person receives a Carta di soggiorno di familiare di un cittadino dell'Unione (even though this is plainly contrary to the provisions of the directive).

But there is always the possibility that you encounter an official who has a different interpretation of the directive or of the Schengen Borders Code and decides to impose some punishment for your actions. What then?

The free movement directive specifies that any consequences for violations must be "proportionate and non-discriminatory." In practice this means that in most countries there is a fine that is the same as the fine for a citizen failing to register or failing to maintain a valid ID document, depending on what that country's specific requirements are. (For example, when the UK was still in the EU, this meant that there was no sanction at all, because there is no obligation to register or to have an ID card or passport.)

But because the deadline for registration cannot be shorter than three months (it can be longer; for example in the Netherlands it was four months the last time I looked), and you're not planning to stay anywhere for longer than three months, you should be able to challenge any inappropriately imposed fine simply by showing that you have been in the country for less than three months.

In any event, in no case can you be expelled for a (purported) violation of the requirement to register, nor can you be restricted from entering the Schengen area in the future.

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What I was told with a similar question:

  1. To enter Italy, you and your Italian citizen wife must follow Italian rules. Any other EU country, you follow EU rules. I know nothing about Italian rules.

  2. Your wife can freely move within the EU. As her husband and following free movement rules, you can enter any EU country and stay for less than three months, and then you have to move to another EU country where you can stay less than three months again, and so on. That’s what I was told, but you better check it. And if you go by airplane, there is always the risk that the airline might not understand the law correctly and refuses to let you travel on their airplane.

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    "but you better check it": isn't that precisely what user148843 is doing by posting this question?
    – phoog
    Commented Jun 19 at 22:22

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