UPDATE FROM ITALY ON THE IMPLEMENTATION OF DIRECTIVE 2004/38/EC OF APRIL 29, 2004

The Impact From An Immigration Law Perspective On Non-Union Nationals Of The Implementation In Italy Of Directive 2004/38/Ec Of April 29, 2004 (On The Right Of Citizens Of The Union And Their Family Members To Move And Reside Freely Within The Territory Of The Member States)

1. Introduction

Italy has implemented Directive 2004/38/EC of April 29, 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, by enacting Legislative Decree No. 30 of February 6, 2007 (hereinafter, the “Decree”).

The provisions of the Decree are important from an immigration law perspective for two reasons:

- firstly, because they apply to family members of a Union citizen (i.e. any person having the nationality of a Member State of the European Union), irrespective of the nationality of such family members: this means that non-Union citizens may enjoy a right of entry and a right of residence in Italy substantially different from, and much broader in scope than, the one ordinarily applicable to non-Union citizens;
- secondly, because the enactment of the Decree has represented the occasion to repeal certain provisions of Italian law concerning family members – not having Italian or Union citizenship - of an Italian citizen, wishing to join the Italian citizen in Italy: the Decree, in fact, applies also to the (foreign) family members of an Italian citizen, thus harmonising the provisions valid for all other Union citizens.

For purposes of this paper, in the following the notion of “family member/s” always assumes: (a) that the family member does not have Italian or any other Union Member States nationality; and (b) that the family member has a family tie to either a Union citizen or to an Italian citizen.

2. The status of family members

Pursuant to Article 2 of the Decree, family members are:

- the spouse;
- the direct descendants of the Italian or Union citizen who are under the age of 21, or are dependants on this latter;
- the direct descendants of the spouse who are under the age of 21, or are dependants on this latter;
- the dependent direct relatives in the ascending line of the Italian or Union citizen, and those of the spouse.

3. Right of entry
Family members are granted leave to enter the Italian territory provided they have a valid passport and, where required, a valid entry visa. In such latter respect it must be noted that the citizens of Andorra, Argentina, Australia, Brazil, Brunei, Canada, Chile, South Corea, Costa Rica, Croatia, El Salvador, Japan, Guatemala, Honduras, Hong Kong, Israel, Malaysia, Macau, Mexico, Monaco, Nicaragua, New Zealand, Panama, Paraguay, Syngapore, United States, Uruguay and Venezuela are exempted from an entry visa if the intended duration of their stay in Italy does not exceed 90 days (for purposes other than that of carrying out subordinated or self-employment work activities, whereas these latter cases always require an ad hoc visa).
Citizens of Switzerland, San Marino Republic and Vatican State are always exempted from any visas.

4. Right of residence for up to 3 months

Family members accompanying or joining a Union citizen or an Italian citizen have the right of residence in Italy for a period of up to three months, without any further formalities other than those required at the time of entry.

5. Right of residence for more than 3 months

Family members have the right of residence in Italy when they join an Italian citizen or when they accompany or join a Union citizen who:

- is an employee or self-employed person in Italy; or
- is enrolled at an accredited private or public establishment for the principal purpose of following a course of study or of vocational training; and
- has sufficient resources for himself and the family members not to become a burden on the social assistance system and has sickness insurance cover or other kind of coverage encompassing all risks in Italy.

In such case, family members shall register themselves with the General Registry Office (Ufficio dell’Anagrafe), by providing evidence of their status of family members.

6. Residence card of a family member of a Union citizen

Following 3 months as of the entry in the Italian territory, family members shall apply for the so-called “Residence card of a family member of a Union citizen” with the local Police Office (Questura), by exhibiting a valid passport, a valid entry visa – where required – evidence of the status of family member, evidence of the registration with the General Registry Office.

The residence card of a family member of a Union citizen has a validity of 5 years and exempts the holder to apply for any further visas in case of exit and re-entry to Italy.

Most important, the residence card entitles the holder to take up employment or self-employment in Italy (excluding only those activities that Italian law reserves to Italian nationals).

The validity of the residence card is not affected by temporary absences of the card holder not exceeding six months per year, or by absences of a longer duration for compulsory military service or by absences of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting for work purposes in another State.

7. Permanent residence

Family members who have resided legally in Italy for a continuous period of five years (together with the Italian or Union citizen) accrue the right of permanent residence. Once acquired, the right of permanent residence is lost only through absence for a period exceeding two consecutive years.

Permanent residence is evidenced through a “Permanent residence card of a family member of a Union citizen”, which shall be applied for with the local Police Office (Questura) prior to the expiration of the Residence card of a family member of a Union citizen.

The permanent residence card, of course, entitles the card holder to take up employment or self-employment in Italy (excluding only those activities that Italian law reserves to Italian nationals).


Corrado Scivoletto
Corrado is a lawyer with Studio Legale Associato Simonetti Persico Scivoletto - an Italian law firm with offices in Rome
c.scivoletto@spslex.com