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-   -   Actual meaning and scope of 'legal entry' (https://www.expatforum.com/expats/italy-expat-forum-expats-living-italy/542969-actual-meaning-scope-legal-entry.html)

huglo 4th September 2014 01:03 PM

Actual meaning and scope of 'legal entry'
Hello guys,

First post here. Nice to meet you all.

I wondered if I could expand the issue briefly mentioned on another post here regarding "legal entry" and what it means for third-country spouses of EU (Italian) nationals.

I'm a Brazilian national and my wife is from Italy. I entered Schengen legally on a 90-day tourist visa in February. We were married in Copenhagen in March and proceeded to apply for a family reunion residence permit in Germany, where my wife is living. That was unsuccessful due to her being unemployed (and therefore not exercising treaty rights), but they did issue a document stating that as the spouse of an EU jobseeker I'm allowed to stay in Germany until November, at which point I either apply for a visa again (if my wife has a job) or leave.

Now we're thinking it'd be easier for us to move to Italy and ask for a PdS there, which should be pretty straightforward from what I gather. My only concern is whether our application may be denied on grounds that I've entered / am staying in Italy illegally, due to my 90-day stay having expired long ago in May. The document issued by the German Immigration Office makes no mention of Schengen, it simply states I'm allowed to stay in German territory until November. Calls to the Italian authorities have been of little help the Consulates in Berlin and Frankfurt don't know how to answer, the police in Cagliari (where we would be applying for the PdS) thinks this won't be an issue but can't say for sure and the Immigration Offices in Cagliari and Rome don't pick up the phone.

Any advice of information would be much appreciated.

Best regards,

BBCWatcher 5th September 2014 08:59 AM

You're fine. Your (current) status in Germany gives you the ability to legally enter Italy (and other Schengen Area countries) for stays of up to 90 days outside Germany, so you would be entering Italy legally. However, since you will not get an Italian stamp in your passport (open Schengen border) you'll need to stop by the questura (police station) to get a "dichiarazione di presenza." You'll need to do that within 8 days of arrival in Italy.

As soon as your wife has established her residence, apply for your PdS. She should establish her residence as quickly as she can because you have a maximum of 90 days from date of entry into Italy to apply for your PdS. But try not to wait that long and cut it too close.

huglo 5th September 2014 02:55 PM

Thanks a lot BBCWatcher.

I actually decided to go to the Immigration Office in Berlin today and see if they could give some information. As expected, they had no idea how Italian authorities would look at the situation, but they did mentioned that the document I had wasn't going to be of any help as it's only valid within Germany. I understand holders of a residence permit in another Schengen country can visit Italy for up to 90 days but, as mentioned, that's not what I actually have. It's a piece of paper stating (in German) that a residence permit was requested but still pending due to a lack of proof of income, which must be provided until November for the permit to be issued, or else my stay in Germany becomes irregular.

With this in mind, I wonder if I could make one last question suppose what I was told at the Immigration Office in Berlin holds up and the questura / imigrazione ignore this document, basically regarding me as a tourist on an expired 90-day visa. Would that mean they're legally empowered to reject issuing a PdS / DdP and tell me I have to leave Schengen or does my status as the spouse of an Italian citizen mean our request may go ahead regardless of those issues?

Apologies for extending the matter, just want to be completely sure we're doing things properly. Not getting the PdS and being asked to leave would be an unpleasant surprise we just want to be completely sure won't happen, as you can imagine.


BBCWatcher 6th September 2014 03:23 AM

If they interpret things that way it means that (at worst) you committed a bureaucratic sin. The penalty for that could be that they get to scold you for a few minutes....And then you get your PdS.

Don't worry about it. You've made every effort to comply with immigration laws in both countries, I assume. Your piece of paper is permission to stay in Germany, but that doesn't mean you're a prisoner in Germany. If you've got any sort of permission to stay in Germany you've also got the ability to enter another Schengen country legally for a temporary stay. You then regularize your temporary stay in Italy.

By the way, I seriously doubt anyone will even question it. You're married to an Italian citizen, and you'll be living with that (opposite sex) citizen in Italy. No problem. Just present that piece of German paper if anybody asks. Italy has something similar: a receipt when you apply for a PdS. (That's the first thing you'll get before your PdS card arrives.) It's functionally the same thing as a PdS unless revoked or expired.

huglo 6th September 2014 08:57 AM

Thanks for all the info BBCWatcher. That's a real relief.


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