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I am an italian citizen . My Brazilian girlfriend came to Italy last year as a tourist, and overstayed the 90-day period by about 6 months. We are getting married next week and we are planning to travel to Brazil soon after. What should happen to her when leaving the EU? Considering that:

  • we'll have a marriage certificate
  • I'd be traveling with her

From our research, the two consequences for overstaying are fines and travel bans. What I was not able to determine is whether and to which extent our marriage certificate can help. It seems to be a gray area, so we are trying to have a rough idea of the likeliness of the outcomes (fines vs. travel ban vs. all good) and also their strength (how much money is a fine? How much time is a travel ban?), even if anecdotal.

Extra details

  • Flight goes from Italy to Brazil with a connection in Portugal . From my understanding, that's where she will be confronted about her overstay.
  • Proof of marriage will of course be in italian.

Clarification

  • I am resident in Italy.
  • We are planning to eventually live here and we have considered applying for a residence permit ("Permesso di soggiorno per motivi familiari"), but the process is known to take up to several months, while we need to travel as soon as possible.
  • I was not aware of the residence card ("Carta di soggiorno per familiare extracomunitario") which seems to be an alternative to the former. I'm now trying to understand how the process works and whether we meet the requirements.
Scott Earle
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natario
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  • The benefit of the card is that a certificate should be immediately issued which you can use for your trip. Otherweise both are the same. – Mark Johnson Jan 24 '22 at 12:29
  • So my girlfriend's right of residence is automatically acquired at the moment of marriage. This right can be documented by the certificate of application to a residence card (issued immediately upon request). Applying does not require special conditions other than being married, and the card itself does not imply that she resides here - it just documents her right to do so. (1/2) – natario Jan 24 '22 at 16:59
  • Informally, it seems to me that there's not a big difference between the certificate of application to the card, and the marriage certificate alone. Would it be right to say that in a perfect world, with immigration officials of infinite knowledge and patience, the marriage certificate itself should be enough for both leaving/returning? Not that I intend to travel this way, we will likely apply. Just out of curiosity. – natario Jan 24 '22 at 17:01
  • @natario as long as you travel together - yes, it should be enough. – littleadv Jan 24 '22 at 17:05
  • The Border Guards of the other Schengen Countries will be more familar with the Article 10 documentation (residence card or certificate), which they deal with every day, than with an Italian Marriage certificate. Keep things simple where possible. Imagine a situatuon if someone gets married in Bulgaria. What would be easier for the Portuguese Border Guard to understand: a residence card or a document written in Cyrillic that may (or maybe not) be a marriage certificate? – Mark Johnson Jan 24 '22 at 20:02
  • @MarkJohnson that's a pretty weird argument you're making... You're telling the OP to change legal status and go through bureaucratic hurdles because... Portuguese border guards are stupid? In no EU directive does it say that the stupidity of a border policemen is a valid argument in legal proceedings. It does however say that marriage certificate is enough. – littleadv Jan 25 '22 at 03:58
  • @littleadv The main goal of the introduction of the Uniform Visa and Common Format Residence documents was to simplify the legal requirement of 3rd country citizens to prove their immigration status anywhere within the EU / Schengen Area. Any person of sound mind should understand that, for family members of Union citizens, the showing of the residence card is much simpler than showing the legal documents that prove what that relationship is (spouse, parents, grandparents, minor children). – Mark Johnson Jan 25 '22 at 07:41
  • @MarkJohnson why is it so complex to you? Is it so rare that people get married where you live? I just don't understand why it is inconceivable for you to accept the fact that not everything is a nail even if you only have a hammer? – littleadv Jan 25 '22 at 07:52
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    @littleadv That you don't understand that this question is about the fulfillment of the Schengen Border Code Article 8(3)(h) Border checks on persons togeather with Directive 2004/38/EC Article 26 and not about people getting married is obvious. – Mark Johnson Jan 25 '22 at 08:16
  • @All, Just a warning. I'm going to start deleting and editing comments if this hostility continues. I just want to let you know in case you happen to come back to this and see that your comment is missing, or saying the same thing - only in a far more polite way. Apologies to the OP. This is highly atypical for this site. – ouflak Jan 25 '22 at 13:44
  • A small update - I was told by the competent authority that in our situation, they discourage the application to a residence card because, in short, starting the process means that they will potentially check that we are residing at my address, and if they don't find us (cause we might be in ), it can be a "big problem". I was very confused as all he said did not match what I learned here. The process is also very strange (not go there and get a document, but rather send stuff through mail and wait for appointment). Not sure what to do now other than leave and make sure we return together. – natario Jan 28 '22 at 11:06
  • @natario, In my opinion, your 'competent authority' is quite so competent as they perhaps led you to believe. But the advice here, while normally very sound, and often of far higher accuracy than that of what you would get from any helpline, is free. Take it for what it's worth. – ouflak Jan 28 '22 at 12:25
  • @natario That sounds more like the process for the Permesso than the Carta. See also Art.10(5) of the Italian legislation: The residence card remains valid even in the event of temporary absences of the holder not exceeding six months a year... Dlgs 30/2007 - Attuazione della direttiva 2004/38/CE relativa al diritto dei ...: Art. 23.: The provisions of this legislative decree, if more favorable, apply to family members of Italian citizens who do not have Italian citizenship. – Mark Johnson Jan 28 '22 at 13:06
  • I agree. But I got this information from the place (Questura) where I'd have to apply. He was not talking about the card itself but the months-long process to obtain it, during which residency inspections can take place. Maybe they are deliberately discouraging Article 10 cards, maybe just not complying with legislation (not surprising), maybe it'd be easier if I lived in another administrative region, ... Worst thing is that, since the process starts by dispatching documents by mail, we would not even get the application document immediately. I'll keep you updated :-) – natario Jan 28 '22 at 14:55
  • Small update (LMK if unwanted) I've had more luck by sending emails. At first I got the same firm answer I already reported here - application is done by dispatching documents by mail so you get no decent receipt. But after insisting and quoting the exact article, I was told it's actually possible to apply in person. They definitely don't like this option though for some reason. Thanks everyone! – natario Feb 02 '22 at 16:03
  • @natario That would match statements made on (unofficial) Italian sites that at first a Permesso will be offered but then, if you insist, a Carta. Once this process has been compleated, I would add any short summary, that you could make as comment to my answer, so that future readers will be aware of the steps needed. – Mark Johnson Feb 02 '22 at 17:42
  • @natario any updates? Keep in mind that your wife does not need to card to be able to come and go with you or to join you in any EU or Schengen country. You certainly do not need to change your travel plans to accommodate the administrative requirements of the application. – phoog Mar 08 '22 at 11:43
  • @phoog Thanks for asking! We weren't able to apply. Even though I was allowed (by insisting a lot) to apply in person, the first available date for an appointment was a couple of months later. It was very frustrating so I just gave up. We left the EU without any problems, they barely looked at the passport. We won't be able to do everything we wanted though (she wanted to get back to EU earlier than me). – natario Mar 08 '22 at 16:10
  • @natario an often misunderstood aspect of the Schengen 90/180 rule is that it is completely reset by spending 90 days outside of the Schengen area, not 180 days as people sometimes assume. However, the calculation is done differently for people from Brazil. She could certainly return without you after being in Brazil for 3 months, and possibly even sooner. – phoog Mar 08 '22 at 21:45
  • how did you go? I am in a similar situation. overstayed tourist visa. will be married before I fly back to Australia. pregnant and married, but without permission to stay or residency. we plan to try and submit the permission to stay once we are married but we don't have much time. i fly home a week after marriage .. did your wife get fined or banned or was it very easy? was the marriage certificate enough to show the border police. thank you kindly – curious guest Jul 22 '22 at 10:09
  • how did it go? I have same scenario. I’m in Austria now planning to get married in my home country and planning to come back to Austria after the marriage. Will my overstay affect my residence permit application? Thanks – user25466 Sep 22 '22 at 20:42
  • @user25466 you've mentioned in another (now deleted) comment that your fiance is Austrian. This question is therefore not particularly relevant. Your case falls under Austrian national law, not European Union law. You should consider asking a new question. – phoog Sep 23 '22 at 05:53
  • I would be surprised if this situation were not regularised the moment the wedding was registered. Certainly in Germany it would be. – RedSonja Feb 07 '23 at 14:25

4 Answers4

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As the spouse of an Italian citizen, your wife will benefit from freedom of movement rights when traveling with you (or to join you), so no ban will be possible. It's very unlikely that an officer would try to impose a fine relating to an overstay before the marriage (if such a fine would even be lawful),

I don't have much experience with Portuguese border officials, however, so I can't say much about the probability of the (attempted) fine. I suspect it's close to zero, however.

phoog
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    That's actually incorrect. Being a spouse of an Italian citizen doesn't give the wife "freedom of movement rights". It's the EU citizen's right to be able to travel freely with their spouse, not the spouse's. So she will probably be able to travel within Schengen with the citizen, or to Italy, if the husband lives there, but she on her own won't have any inherent freedom of movement and her visa will likely be revoked. – littleadv Jan 24 '22 at 01:49
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    @littleadv Italy has a law that guarantees the family members of its citizens rights at least as favorable as those granted to the citizens of other EU countries. Regardless the officials here will be Portuguese, not Italian, so not in a position to enforce Italian law even if it would impose restrictions on her stay in Italy, which it won't after the marriage. Also, she doesn't have a visa because she's Brazilian, so there's nothing to revoke. – phoog Jan 24 '22 at 07:34
  • So Italy has a law, but Portugese shouldn't be affected by it, so how would that law help her? You're contradicting yourself. As I wrote in my answer, Italy is actually the least problematic case. – littleadv Jan 24 '22 at 07:35
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    @littleadv For the Portugese the only thing that matters is that the spouse of an EU citizen are travelling togeather. As long as the marriage can be proved nothing else matters. The freedom of movement right overrides the entry/exit rules for 3rd country nationals. – Mark Johnson Jan 24 '22 at 08:17
  • @MarkJohnson noone suggested otherwise. I'm just saying that phoog's claim that a Brazilian citizen has automatic unconditional freedom of movement in the EU is absolutely false. – littleadv Jan 24 '22 at 08:22
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    @littleadv the Italian law makes no difference to the Portuguese because they're not Italian; they only care about directive 2004/38/EC. They see an Italian citizen leaving with his Brazilian wife and they stamp her out of the Schengen area. They're not going to ask how much time she spent where nor whether she was authorized to stay for more than 90 days, and they're probably not going to ask for documentary evidence of the marriage, so they won't know when it occurred. The last statement is based on dozens of experiences of EU citizens crossing the Schengen border with non-EU family. – phoog Jan 24 '22 at 08:23
  • @phoog yes, but that's not what you wrote in your answer, is it. As I told you before, if you want others to be absolutely correct for every possible case (as I am in my answer), you have to hold yourself to the same standard. You don't. Your answer is factually incorrect. – littleadv Jan 24 '22 at 08:24
  • @littleadv correct, the right is not unconditional. I've edited the answer to clarify. – phoog Jan 24 '22 at 08:25
  • @phoog thank you for admitting you were wrong. Now please remove your retaliatory downvote. I'd suggest you remove your answer altogether, since it adds absolutely nothing to the answers already provided by Mark and me. – littleadv Jan 24 '22 at 08:26
  • @littleadv This answer, in its original form, stated that they 'benefit' from the freedom of movement and that a ban is not possible (which is correct). It never stated 'has automatic unconditional freedom of movement in the EU'. Those are your words, not his. Such misrepresentation of other peaples statements is not very productive and very shortsighted since others can read what was originaly written. – Mark Johnson Jan 24 '22 at 09:43
  • @MarkJohnson I'm not at all convinced that a ban is not possible. From the documentation I found (and cited in my answer) it is very much possible. You seem, again, to assume that the wife will necessarily apply for residency in Italy, I'm not making such an assumption. As to benefit of free movement - as I explained (and phoog agreed), that statement was incorrect. – littleadv Jan 24 '22 at 09:44
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    @littleadv Care should be taken with schengenvisainfo.com: the information there is often outdated or misleading. In this case the page does not apply to Family members of EU citizens, therefore your conclusions based on the information contained on that page are false. – Mark Johnson Jan 24 '22 at 09:54
  • @MarkJohnson you're claiming that by virtue of being married to a EU citizen a foreigner gains absolute non-deniable rights. That was the original claim phoog made as well, I was able to convince him to be wrong. Being married to a EU citizen means nothing when crossing Shengen border, unless you are crossing with the EU citizen, or to join the EU citizen. The residence card that you refer to proves the intent of joining, but for that both the EU citizen and the foreign spouse have to actually reside in the EU. So no, it is not false. – littleadv Jan 24 '22 at 10:02
  • @MarkJohnson I've summarized all these discussions at the top of my answer. – littleadv Jan 24 '22 at 10:07
  • @littleadv Again your are failing to understand that the freedom of movement rules overrides any corresponding rules of the Schengen Border Code. For bans starting with Article 27 (1). Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. – Mark Johnson Jan 24 '22 at 10:19
  • I have added more details in the question if it helps. I'll think and research a bit more before accepting an answer, thanks for your help! – natario Jan 24 '22 at 12:28
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    @natario "I'm now trying to understand how the process works and whether we meet the requirements": after you're married, you will unambiguously meet the requirements for the residence card. Before you're married, you may or may not meet them, depending on how Italy treats de facto partners and whether you meet the criteria. An important point is that the card is called a card rather than a permit because the right of residence exists independently of the card, even before the card is issued. – phoog Jan 24 '22 at 13:51
  • @natario Inside Italy the difference may not be important, but in other EU countries the residence card documents a right (as apposed to a privilege/permission) that other 3rd country nationals have with a residence permit. – Mark Johnson Jan 24 '22 at 14:07
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    @All, Just a warning. I'm going to start deleting and editing comments if this hostility continues. I just want to let you know in case you happen to come back to this and see that your comment is missing, or saying the same thing - only in a far more polite way. Apologies to the OP. This is highly atypical for this site. – ouflak Jan 25 '22 at 13:49
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The simplest solution is, after the marriage has taken place, is to go to the Italian Immigration office (or local Anagrafe) and apply for an Article 10 residence card (Family member of a Union citizen). Italy, as apposed to some other EU countries, will issue a Article 10 card to the spouse of an Italian citizen.

DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

Article 1
Subject
This Directive lays down:
(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.

Article 2
Definitions
For the purposes of this Directive:

  1. ‘Union citizen’ means any person having the nationality of a Member State;
  2. ‘family member’ means:
    (a) the spouse;
    (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
    (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
    (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

...

Contrary to opinions expressed elsewere, a Brazilian citizen, who is a family member of an Union citizen, will have certain rights that other Brazilian citizens, who are not a family member of an Union citizen, will not have.

Article 9
Administrative formalities for family members who are not nationals of a Member State

  1. Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.

...
Article 10
Issue of residence cards

  1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called ‘Residence card of a family member of a Union citizen’ no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

Once this card (or certificate) has been issued, the documented right of residence in Italy exists and therefore there will be no problems when leaving or entering the Schengen Area.

Any possible fine, due to a previous overstay, would be delt with when the application for the Article 10 residence card is being made. Since the marriage at this point has taken place (and thus the right of residence allready exists), the officials may come to the conclusion that it is not worth the effort (but with bureaucracies you never know).

With the Article 10 residence card the spouse can also work, so this card will be needed anyway sometime in the future so you might as well get it done now.

Mark Johnson
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  • But doesn't that require any evidence of actually living in Italy? Can she have the residence card even if she actually lives in Brazil? (Not sure what the actual situation is, the OP doesn't tell anything about their intentions of residency either way) – littleadv Jan 24 '22 at 07:39
  • @littleadv The OP is getting married in Italy, thus is a resident. The spouse will then become a resident. – Mark Johnson Jan 24 '22 at 07:44
  • Or maybe they're planning to move to Brazil? We don't know, the OP seems to be concerned about going through Portugal on the way to Brazil, not on the way back. Would your answer still be correct in such a case? Besides, spouses living in different countries is not unheard of... – littleadv Jan 24 '22 at 07:53
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    @littleadv We do know they are getting married in Italy and therefore the right of residence exists immediately. Getting that documented is the simplest solution. Don't make complicated matters more complicated than they need be. – Mark Johnson Jan 24 '22 at 08:08
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    I may not have explained myself. The right exist, but the card is only given to those living in Italy. The OP has not said anything to suggest that they intend to do that, in fact the OP suggested they're flying to Brazil and didn't mention any planned travel back to Italy. See this site: https://www.smartdualcitizenship.com/blog/require-your-5-years-residence-card/: *Remember*: Residence cards are for families residing in Italy. In order to obtain it, both you and your Italian citizen family member need to move to and reside in Italy.. You are making an assumption here – littleadv Jan 24 '22 at 08:18
  • @littleadv The OP writes that his girlfriend has overstyed the 90 days by 6 months (= 9 months). There is no reason to believe that the OP is not a resident. Then the OP writes that they will travel (not moving) to Brazil. From this text it is clear that both didn't arrive from Brazil only to get married, so the residence condition is extremly likely. – Mark Johnson Jan 24 '22 at 08:50
  • Maybe. Maybe not. Good thing that I provided a more comprehensive answer without making any assumptions. – littleadv Jan 24 '22 at 08:59
  • I have added more details in the question if it helps. I'll think and research a bit more before accepting an answer, thanks for your help! – natario Jan 24 '22 at 12:27
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You can absolutely leave safely. The problems may occur when she returns. As mentioned in the other answer - if you both intend to live in Italy, the simplest solution would be to apply for the Italian residence permit before leaving. While there may be a potential fine assessed during that application (maybe? probably? unlikely? Who knows...), the residence permit is guaranteed if you intend to reside in Italy and will serve as evidence to her right to arrive to the Schengen area if she travels alone.

Flight goes from Italy to Brazil with a connection in Portugal . From my understanding, that's where she will be confronted about her overstay.

Unlikely. Both Italy and Portugal are within Schengen area and there are no immigration checks between them. She will also be traveling with her EU-citizen husband - as long as you're together she's entitled to the right of passage by virtue of being your spouse (see details here).

Proof of marriage will of course be in italian.

You should probably keep around a notarized translation and have it apostiled, but technically (according to the same page), it's not strictly necessary.

From our research, the two consequences for overstaying are fines and travel bans.

Reading the same site and this page, the consequences may be:

  • Nothing.
  • Travel ban. In this case, she (according to this) will always be entitled to enter the EU country where you (the citizen) live, or when you both are traveling together, as long as she can prove you're married. However, she may end up banned when traveling without you to a country where you do not live or are not currently present, at least in theory. That may change if she becomes Italian resident.
  • Fine - her being your wife doesn't seem to preclude her from being penalized for the overstay. At least, I couldn't find any sources to suggest that being married to you would exempt her from penalties for prior immigration violations.

How likely any of that is to happen is hard to tell. I'd suggest chatting with a EU-based immigration attorney for just in case.

Note about the extended comments and downvotes here: there are apparently very strong feelings amongst the EU folks about their freedom of movement in Europe.

But the commenters keep forgetting that the person we're discussing isn't a EU citizen. So while I've been attacked by numerous commenters claiming that I misunderstand how freedom of movement for EU citizens work and this answer was downvoted due to their animosity - I just want to remind everyone again that Brazil is not part of the EU.

I've asked the moderators to clean up all the irrelevant comments and will remove this note once that is done.

littleadv
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  • Would appreciate the downvoter to comment as to what they think is incorrect – littleadv Jan 24 '22 at 07:36
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    I didn't downvote this, but your answer is over complicated. They are getting married in Italy, thus the Italian citizen is a resident. It is then natural for the brazilian spouse to get their right of residence documented through the residence card. – Mark Johnson Jan 24 '22 at 07:54
  • @MarkJohnson I tried to cover all the eventualities, you seem to only be assuming one possible way of this unfolding. There's nothing in the OP's post to suggest that the wife intends to settle in Italy. But even if she does, they may have other considerations due to which taking the approach you're suggesting may not be feasible before their planned trip. – littleadv Jan 24 '22 at 07:55
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    The right of residence is automatic and a certificate documenting that right must be issued immediately. It doesn't matter if she exercises it later. – Mark Johnson Jan 24 '22 at 08:02
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    @MarkJohnson "The right of residence is automatic" even without living in Italy? You seem to be missing my point. – littleadv Jan 24 '22 at 08:20
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    Yes, it is automatic. The getting the residence card, which can serve as proof anywhere, is the simplest solution. Your 'maybe this and maybe that' is only making thing more complicated. Appling for the residence card is far simpler than getting married (even in Italy). – Mark Johnson Jan 24 '22 at 08:34
  • @MarkJohnson I'd like to see some reference. From what I could find, you're wrong. The residence card will only be given to those actually living in Italy. In any case, I explicitly called this option out in my answer as well. – littleadv Jan 24 '22 at 08:38
  • Marriage of a foreign citizen in Italy - Insurance Italy Once married to an Italian citizen, the foreign citizen has the right to be issued a residence permit for family reasons, even if before the marriage he/she was an irregular citizen. – Mark Johnson Jan 24 '22 at 09:06
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    @MarkJohnson again - not disagreeing that the right exists if they intend to reside in Italy. That same website specifically talks about "family reunification", i.e.: family residence permit is intended to the family to reunited with the Italian citizen. But what happens if they don't in fact reunite? – littleadv Jan 24 '22 at 09:11
  • I have added more details in the question if it helps. I'll think and research a bit more before accepting an answer, thanks for your help! – natario Jan 24 '22 at 12:28
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    Which part of the Europa.eu website do you have in mind? What would change if the spouse becomes an Italian resident? As far as I can tell, the only place where there is a suggestion that a ban could be possible are the usual exceptions for reasons of "public policy, public security or public health". – Relaxed Jan 24 '22 at 16:38
  • @Relaxed the one I linked to. – littleadv Jan 24 '22 at 16:57
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    @littleadv OK, sorry, I did use the link, I meant which part of the page. I think the next sentence should have made that clear. – Relaxed Jan 24 '22 at 16:57
  • @Relaxed the one that says "You don't have a residence card as an EU national family member - issued by an EU country - or a residence document - issued by an EU country - You must have a visa". – littleadv Jan 24 '22 at 16:58
  • @Relaxed For the case where the foreigner has a residence card from a schengen country and wishes to travel to another Schengen country that same page says: "You do not need a visa if you have a residence document (national residence permit) issued under national rules by a Schengen country and you are travelling to a Schengen country.", which suggests that getting Italian residence card does in fact change the situation. – littleadv Jan 24 '22 at 17:00
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    @littleadv I thought we were talking about bans. This has nothing to do with it. Also, the Commission website is being a little imprecise here, this obviously doesn't apply to annex II nationals. – Relaxed Jan 24 '22 at 17:03
  • @littleadv I see where your mistake comes from. A residence card does exempt a person persons enjoying the right of free movement under Union law from any Schengen visa requirement when it does exist in the first place but that's completely unrelated to what we are discussing here. – Relaxed Jan 24 '22 at 17:07
  • @Relaxed the term "visa" in this context doesn't necessarily mean "explicit sticker in the passport", but rather "conditional approval of entry". In case of prior violation of conditions of entry, many countries require visas for the new entries even if the person would otherwise be visa-exempt. Even if the Schengen country doesn't require pre-clearence (visa) ahead of arrival, the entry is still conditional and a ban is still possible at the discretion of the immigration authorities. I'm not sure why you're confused about this. – littleadv Jan 24 '22 at 17:10
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    Of course, a visa requirement adds extra checks and bureaucratic hurdles prior to reaching the border but the webpage is about “Travelling in the EU with your non-EU family members“. As detailed down below, any visa would be issued under freedom of movement rules (free of charge, etc.) so the exact same standard and exceptions (namely not being a threat to "public policy, public security or public health") apply than to residence card holders. – Relaxed Jan 24 '22 at 17:13
  • @Relaxed I quoted directly from the page, what are you trying to say? If visa is required it literally means that no freedom of movement applies. – littleadv Jan 24 '22 at 17:15
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    @littleadv I know this is how it works in the US and other places and I repeatedly see people suggesting a similar approach for Schengen area. That's not how it works there however. You cannot apply for or be granted a uniform Schengen visa if citizens of your country do not require one to begin with. There are no provisions for this anywhere. You also cannot apply for a visa as a way to lift a ban or an alert in the SIS. In fact, it works the other way around: If you do need a visa, you need to dispute the ban and get it lifted first to have any chance of not getting an automatic refusal. – Relaxed Jan 24 '22 at 17:18
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    @littleadv That's incorrect, you can check the paragraph entitled “Applying for an entry visa for short stays up to 90 days”, the directive itself or the Schengen Borders code. It is sometimes necessary to get a visa even when freedom of movement rules apply. – Relaxed Jan 24 '22 at 17:21
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    That's also why the website adds “Your non-EU family member should clearly indicate on their visa application form that they are applying for an entry visa as a family member of a mobile EU citizen. If this is not clear they may be issued with the wrong type of visa for which they will be charged.” In other words: Make sure to apply for a visa under freedom of movement rules, otherwise you may be treated like a regular applicant. – Relaxed Jan 24 '22 at 17:21
  • @Relaxed again, not sure what you're trying to claim. Even if you're a citizen of annex II country, your entry is not a right but a privilege. A privilege at the discretion of the member state where you're seeking entry. Without being a EU resident, the family member visa is for travel with or to join the member citizen spouse. What confuses you? – littleadv Jan 24 '22 at 17:22
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    @littleadv Sure but that's unrelated to my specific claims. A citizen from an annex II country cannot get a Schengen short-stay visa, period. There are no provisions for that, it's not how things work in the Schengen area. Any decision is made at the border and any discussion of visa requirements for spouses of EU citizens is, obviously, about those who do require a visa in the first place. Apart from the freedom of movement right issues, if there is a ban then applying for a visa is not way to get relief, you will just get a quick refusal citing the SIS alert, plain and simple. – Relaxed Jan 24 '22 at 17:29
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    Consequently, none of this (admittedly somewhat confusing) discussion of visas on the EU website says anything about bans. That's an inference you made based on your familiarity with countries where bans are handled differently. – Relaxed Jan 24 '22 at 17:30
  • @Relaxed and how what you said differs from what I wrote in my answer? – littleadv Jan 24 '22 at 17:31
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    Now, in one of your comments you made a related incorrect claim. Considering it might help dispell some of the confusion. You wrote “If visa is required it literally means that no freedom of movement applies”. That's completely wrong. To check that, you can refer to directive 2004/38/EC, specifically articles 1, 2, 3, and 5. Depending on their citizenship, some people who do enjoy freedom of movement rights under Union law can be required to get a visa. Do you understand that? – Relaxed Jan 24 '22 at 17:36
  • @Relaxed you're contradicting yourself. If the person is free to move into a place - they do not need prior clearance and approval to move into a place. So if visa is required it literally means there's no free movement. You may want to argue that for some cases entry is guaranteed, but that's not "free movement". – littleadv Jan 24 '22 at 17:38
  • @Relaxed As to Annex II - here's a report that shows that Annex II individuals can most certainly be denied entry at the discretion of the member state where they are seeking admission. – littleadv Jan 24 '22 at 17:38
  • @Relaxed from your link, article 5, it literally says: "Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law." – littleadv Jan 24 '22 at 17:40
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    @littleadv Yes they certainly can but that's completely unrelated to the visa issue. That's why I took pains to explain how bans are handled in the Schengen area. I never denied that, you could have spared you the effort by reading carefully what I actually wrote. – Relaxed Jan 24 '22 at 17:41
  • @Relaxed then I'm still missing what it is that you were disagreeing with in my answer – littleadv Jan 24 '22 at 17:43
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    @littleadv I am trying to stick to the specific legal terminology to avoid this kind of evading tactics (you already tried to pull that with the word “visa”). I am not contradicting myself, I am talking about “persons enjoying the right of free movement under Union law“, as defined in article 2(5) of the Schengen Borders Code. Do you understand the meaning of that phrase? Do you realise such a person can, in fact, be required a Schengen short stay visa to enter the Schengen area? – Relaxed Jan 24 '22 at 17:44
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    Here again it's the other way around: Entry is never absolutely guaranteed (there is always the possibility to invoke "public policy, public security or public health") but EU free movement does apply (any naive understanding of the phrase “free movement” notwithstanding). That's why such a visa must be free of charge and issued expeditiously (which is definitely not the case for a regular Schengen visa). – Relaxed Jan 24 '22 at 17:48
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    What I am disagreeing with in your answer is that the EU webpage you linked to implies that a ban is possible in this this case and the notion that a residence card would make any difference. Since these misunderstandings seem to be rooted in a series of misconceptions about some basic concepts of EU law that became evident in your comments, it seems I have to peel them off one by one to help you understand what this page is actually about. – Relaxed Jan 24 '22 at 17:52
  • @Relaxed no, I explicitly said that the ban is not possible in this case. Read again this sentence: "She will also be traveling with her EU-citizen husband - as long as you're together she's entitled to the right of passage by virtue of being your spouse". This matches directive 2004/38/EC that you linked to and also explicitly limits the rights it discusses to not nationals of a Member State, accompanying or joining the Union citizen (See articles 6 and 7). – littleadv Jan 24 '22 at 17:55
  • Let us continue this discussion in chat. – Relaxed Jan 24 '22 at 17:56
  • @Relaxed I'm not interested in continuing this discussion. I've shown that your claim is contradicted by your own sources. As I've shown to others before (and I know that for EU folks it's really hard a reality to accept), just being a spouse of a EU citizen doesn't on its own give you much rights unless you are traveling with your EU citizen spouse, or residing in the EU. – littleadv Jan 24 '22 at 17:58
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    @littleadv What claim would that be? If anything, you're the one who overestimates the extent of EU freedom of movement (as you seem to think it entails a complete exemption from any visa requirement, which is not the case). I certainly never claimed being the spouse of an EU citizen gives you any absolute right to enter (I already detailed the limits and caveats in countless answers on this site and on travel.SE) but I can see why it's easier to beat that straw man given the level of confusion in your comments. – Relaxed Jan 24 '22 at 18:05
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    There is another small mistake in your last comment, residing in the EU is irrelevant as such. For EU law to apply, you must reside with your EU citizen spouse and they must be making use of their own right to freedom of movement (even that is not absolute). That distinction is especially important for EU citizens residing in their country of citizenship for many countries are more restrictive than Italy. It's ironic you would forget that given how much hay you make of any occasion where another user forgets to mention the exact conditions in which EU freedom of movement applies. – Relaxed Jan 24 '22 at 18:16
  • Comments are not for extended discussion; this conversation has been moved to chat. – Scott Earle Jan 25 '22 at 01:23
  • @ScottEarle why have you moved comments so selectively? If you want to remove comments - remove all of them. Why have you left comments attacking me or my answer and removed the comments where I defend myself against these attacks? – littleadv Jan 25 '22 at 03:59
  • @Relaxed How is residing in EU irrelevant with regards to residence permits? – littleadv Jan 25 '22 at 04:03
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    I told it to move ALL comments to chat. You don't think I went through all of that and carefully selected which ones to move, did you? :) Please continue the discussion in the chat. – Scott Earle Jan 25 '22 at 05:34
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  • As it has been pointed out in other answers, there will be no problem to leave the Schengen area, but there may be problems returning.
  • The 90 day period applies to the Schengen area, however some countries have bilateral agreements between them, allowing the visitors to stay longer. Specifically, you have to check whether such agreements exist between Italy and Brazil.
  • If your girlfriend is not legally present in Italy, it is not clear how you could get married at all. The marriage recognized for visa purposes is, of course, only the marriage recognized by the state.
  • Normally, after the marriage one has to solicit a spouse visa or a corresponding change of the visa status. Many states require that one applies for such a visa in one's home country - it is therefore a good idea to check with the Italian embassy in Brazil (via email or by phone).
  • Finally, being in an irregular situation is never a good idea - at least not unless your life and death depend on it and/or when you simply have nothing to lose by breaking the immigration law(as in the case of many illegal immigrants).
  • Finally, there is a chance that your situation will earn some clemency from the immigration officials, but the sooner you get in the clear, the better. Please don't aggravate it beyond repair.
Roger V.
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    "it is not clear how you could get married at all": does Italy require proof of lawful presence of couples seeking marriage licenses? Many countries do not. "Many states require that one applies for such a visa in one's home country": such a requirement is inconsistent with directive 2004/38/EC so it cannot be imposed in this case. – phoog Jan 25 '22 at 10:29
  • @phoog I don't know about specifics about marriage in Italy, but in most EU states it requires a great deal of paperwork - identity cards, birth certificates, proof of residence, proof of being single, etc. Many of them have to be obtained from one's country's embassy in the EU. So slipping past with an invalid residence permit may be hard. Moreover, marriage will be a documented proof that one has overstayed one's visa. There are also witnesses who will vouch for its legality by presenting their documents (identity cards or passports). – Roger V. Jan 25 '22 at 10:45
  • @phoog Having to apply for spouse visa in one's home country is a fact of life. Whether it contradicts to 2004/38/EC is not clear to me, since the directive applies to the citizens of the European comunity and some selected countries - not to Brazil. As I said, in my answer, checking for bilateral treatieas and getting teh first-hand information from the relevant government offices/embassies is a must. – Roger V. Jan 25 '22 at 10:47
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    Typically those countries that require proof of residence only require one partner to be resident, for reasons that should be obvious, and that requirement is met by the Italian spouse in this case. The Brazilian partner will have a passport with an outdated entry stamp, but if they use the passport only as proof of identity, that won't be a problem. Nothing on Rome's page suggests that they check immigration status. – phoog Jan 25 '22 at 10:52
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    Directive 2004/38/EC applies to third-country nationals who are family members of EU citizens. The bilateral thing is unlikely to help as those typically allow a stay of three months, and they only allow an extension of a stay in Schengen if the 90 Schengen days were used in other Schengen countries. – phoog Jan 25 '22 at 10:56
  • @phoog I meant proof fo address, not the proof of citizenship. – Roger V. Jan 25 '22 at 10:56
  • @phoog I am a non-EU citizen married to a French. So for a fact regarding bilateral treaties: I could stay in the Schengen zone for 90 days and 90 days in France according to the bilateral treaty with my home country. Total 180 days - if I stay 90 days in France and 90 days elsewhere in the zone. Of course, no one really checks, where you physically are... unless there is an administrative trace. Same about having to apply for the spouse visa abroad. – Roger V. Jan 25 '22 at 11:01
  • Let us continue this discussion in chat. – Roger V. Jan 25 '22 at 11:10