This question regards the possibility for non-EU citizens, holding a so-called stable or renewable visa (permesso di soggiorno) to work in Italy, to access other EU countries. We have been asked if the holder of these types of visas can relocate and work in another EU country (Ireland in this case). The person who asked this question is married to an Italian citizen.
First of all, the law does not abide the possibility for non-EU citizens to relocate to another EU country in order to work, without applying for new authorizations in the destination countries. Non-EU citizens holding a regular visa (permesso di soggiorno) in Italy can only work in Italy and the fact that he or she regularly resides in Italy does not grant him or her preferential treatment to relocate and work in any other EU country.
At the moment, the Italian renewable visa can be used as a substitute tourist visa. Non-EU citizens holding a renewable visa in one of the member countries of the Schengen Agreement (refer to the Convention for the application of the Schengen Agreement, 19 July 1990) can access the other countries of the Schengen area (Including all the EU countries—except the United Kingdom and Ireland—as well as Iceland and Norway) without having to obtain a tourist visa.
In other words, holding a visa in one of the countries within the Schengen area allows travel within Schengen countries for short periods of time basically as a tourist, but not to work. This implies that visa holders do not have to follow the different rules regulating the access and stay in each EU country, hence, they do not have to declare their presence upon their arrival.
However this situation is going to be modified, creating a sort of freedom of movement within the EU of legally residing citizens. This is stated by the directive 2003/109/CE of the European Council, 25 November 2003 regarding the status of non-EU citizens legally residing in a EU county for a long period of time (GU L 016 23/01/2004,pp 43-53). This directive should be included within national regulations of EU countries before the 23rd of January 2006 (art. 26).
Article 4, paragraph 1 of this directive states that the member states of the EU grant the status of long term residents to those non-EU citizens who have legally resided for five years without interruption within their territory, before submitting the pertinent application. Moreover, EU countries issue to their non-EU residents an EC long-term visa. Its validity lasts at least five years, and after the visa holder submits the appropriate application, is automatically renewed after its expiration (art.8). According to this directive, long term visa holders have the right to stay within the borders of any of the EU countries for more than three months……the right to stay to a) practice a commercial activity as a self-employed worker or freelancer b) attend degree or job training courses c) other purposes.
This will be possible without having to apply for a new visa (as if leaving the home country for the first time).
This directive dedicated to long- term visa holders, is still a law with a programmatic content which obligates the Italian legislator (and all the other EU countries legislators) to include this new form of freedom of movement within the date established.
The person who posed the question asked about the case of the spouse of an Italian citizen. Spouses are legally entitled to the extension of EU rights, hence the right to be treated as a EU citizen, but only if their right to move and reside freely in any of the EU countries (as regulated by the art. 39 ss. EC Treaty and related laws) is exercised together with the person transmitting the right of free movement.
In other words, this right of free movement is recognised—according to the EU law and related jurisprudence of the European Court of Justice—only if the person concerned—a non-EU woman married to an Italian citizen—relocates together with her husband.
Only if both spouses relocate together can they both be considered EU citizens. Otherwise—at least until new sentences from the Court of Justice recognise this right—non-EU citizen spouses cannot be considered EU citizens and must wait until EU countries include within their national legislation the aforementioned long-term visa holders directive.
Translated by Daniele Faieta
