Advice needed for Aussie with Italian partner, hoping to move to Italy from the UK

[PeatD]

Hello! Hope everyone is well and keeping safe during these strange times. I'm in need of some advice regarding a bit of a complex situation regarding immigration for both the UK and Italy. I had hoped to post in both the "UK non-tier" and "immigration to other countries" forums as I wasn't sure which was most appropriate, however it seems duplicate posts are deleted. So will try the UK section first.

So a bit of background. I moved to London in 2014 on a tier 5 YM visa, with my partner. I'm from Australia and he is from Italy and in 2016 I was granted a residence permit to remain in the UK (as an "extended family member" of an EU citizen) until 2021. Earlier this year I received pre-settled status and my partner got settled status, and I was planning to apply for settled status/permanent residency next year, as I would be eligible to apply when my permit expired. 

However with Brexit looming and now the pandemic, we find ourselves re-assessing our lives and priorities and no longer feel it's right for us to stay. So we are now looking to relocate to my partner's home in Sardinia, where we have a family network and a home to live in free of charge. 

We both have full time jobs with UK employers which we'd like to keep, however are in discussion with our employers to see if we can work remotely, from overseas on a permanent basis. Or at least on a temporary basis for the moment, as we've both been advised that we won't be back in the office until at least October. We're currently awaiting an answer from our employers, but have also since received a notice to vacate our rented London flat by September. So this has accelerated our plans and put some pressure on us now, as we do not want to be locked into a new 1 year rental contract.

So I'm not really sure what I need to do to make things legally sound, in terms of immigration for both Italy and the UK.

What does this mean for my UK residence permit? Could I even still work for a UK employer? I believe as an Australian, I can be in Italy for no more than 90 days and won't have any rights to work. So if I make sure I leave every few months, and remain employed in the UK, is that still technically legal if I maintain my UK bank account and can provide a UK address? Or would I be breaching immigration rules?

Additionally, I will need to get immigration sorted for Italy too, but there doesn't seem to be an option for non-married partners? And I don't seem to qualify for any other options. So I'm not quite sure what to do for Italy. We are considering getting married but that also seems rather complicated and I'm not even sure that would entitle me to residency in Italy either. And of course, with the added uncertainty of Covid-19 and travel, there are a ton of services and regulatory bodies that are just not operating either, so we're not even sure we can sort out Visa/immigration permits before September. It's all a little overwhelming, however I'm very conscious that we are in a very privileged situation.

I'd be super grateful for any advice anyone could share, as I'm really not sure where to start, or what this all means in terms UK and Italy immigration. If further clarity is needed for my situation or there are any questions at all, please feel free to let me know.

Thank you in advance!

[ALKB]

First things first - as an Italian moving to Italy, your partner can't bring a non-EEA family member under EU rules (which you are under in the UK) unless he uses the 'Surinder Singh' route. This means he lived in an EU country that he doesn't hold citizenship of with his non-EEA family member and then both move together to the country of citizenship. So far so good, this applies to you.

The problem is, a) you are an extended family member, not a family member and as such, you don't have automatic rights. B) I don't know how Italy treats EEA applications in practice - maybe somebody else will be along and have more info about that - but by EU rules, they can take up to 6 months to process a residence card application and that would mean you'd potentially be without work rights for several months.

Now, working. It's legal to work for a UK employer while being outside the UK. You don't need a UK work permit for that, you need work authorisation for the country you are physically resident and tax resident in = Italy. You'd also have to pay into Italy's social systems. So, most probably, your UK employer would have to pay your salary before taxes and you'd have to sort out taxes and social contributions in Italy on your own.

You can't do a visa run every three months and hope the Italian tax authority won't catch you. It's 90 days in 180 days, so 3 months in, 3 months out. Yes, they will notice.

Lots of countries do not accept unmarried partnerships for immigration purposes.

Unless you can find an employer in Italy who would be able and willing to sponsor you for a work visa, getting married and either trying to still go the Surinder Singh route (not sure what will happen to that in 2021 for cases in which treaty rights were exercised in the UK) or get a spouse visa under Italian domestic rules.

If your Italian partner permanently leaves (=moves away) the UK, your EEA permit is automatically invalidated. Leaving now may well close the doors back to the UK. What if Sardinia on a daily basis is not as great as when you visit?

You are only a year or so from settled status and then another year from being able to apply for naturalisation. Have a think about whether it might be better to go for that.

[PeatD]

Hi @ALKB, thank you so much for your detailed reply. OK so I think I understand, as it stands, in my current situation, the only legal route I'd have to relocate to Italy would be to a)get married and apply for a spousal visa in Italy or b)obtain a work visa in Italy via employer sponsorship. However this may mean I lose my rights for the UK, as my partner is no longer residing in the UK.

Thank you also for explaining the legalities of working for an UK employer, from abroad. On that point, I think I understand the issue of "temporarily" working in Italy for my UK employer, would likely entail problems with the Italian tax authorities due to the rules only allowing me to be there for 90 days out of 180 days. Rather than doing 3 months in and out, my employer has said they imagine an agreement where I would need to be in our London offices for 2 weeks of the month and 2 weeks remote working. If this is the case (and what my employers miraculously agree to) I am considering renting out a small room in London, so I will technically still be a resident in the UK but a "frequent traveller" to Italy... do you think that could work/be legal?

I understand the point you've made too, about my partner moving away from the UK permanently resulting in an automatic invalidation of my current permit. Similar to my work situation, what if he is still employed by his UK employer and returns to London regularly.. and we both end up renting this room for a 2 week stay in UK and then return to Italy for 2 weeks to work remotely, would that perhaps allow us to maintain our UK residence legally..?

Weighing up what we know as certain and the things that are far from certain and still to be answered, we are now considering sticking it out in London a bit longer in all honesty. I also just found out that my partner is eligible to apply for UK citizenship in the later half of this year, which I didn't realise. And we've learnt that getting in married in Italy is probably going to be too hard, so we're looking into doing that whilst still in London, but of course will be dependent on when those offices re-open.

So if he gains UK citizenship and we are also able to get married here in the UK, do you think it would make the rest a bit easier? We're hopeful this may speed things up a bit more for my immigration bits in Italy, but still keep the UKs doors open to us both. Do you think that sounds feasible at all?

Thank you for all your help, your advice has been so helpful!

[ALKB]

Hi @ALKB, thank you so much for your detailed reply. OK so I think I understand, as it stands, in my current situation, the only legal route I'd have to relocate to Italy would be to a)get married and apply for a spousal visa in Italy or b)obtain a work visa in Italy via employer sponsorship. However this may mean I lose my rights for the UK, as my partner is no longer residing in the UK.

Thank you also for explaining the legalities of working for an UK employer, from abroad. On that point, I think I understand the issue of "temporarily" working in Italy for my UK employer, would likely entail problems with the Italian tax authorities due to the rules only allowing me to be there for 90 days out of 180 days. Rather than doing 3 months in and out, my employer has said they imagine an agreement where I would need to be in our London offices for 2 weeks of the month and 2 weeks remote working. If this is the case (and what my employers miraculously agree to) I am considering renting out a small room in London, so I will technically still be a resident in the UK but a "frequent traveller" to Italy... do you think that could work/be legal?

I understand the point you've made too, about my partner moving away from the UK permanently resulting in an automatic invalidation of my current permit. Similar to my work situation, what if he is still employed by his UK employer and returns to London regularly.. and we both end up renting this room for a 2 week stay in UK and then return to Italy for 2 weeks to work remotely, would that perhaps allow us to maintain our UK residence legally..?

Weighing up what we know as certain and the things that are far from certain and still to be answered, we are now considering sticking it out in London a bit longer in all honesty. I also just found out that my partner is eligible to apply for UK citizenship in the later half of this year, which I didn't realise. And we've learnt that getting in married in Italy is probably going to be too hard, so we're looking into doing that whilst still in London, but of course will be dependent on when those offices re-open.

So if he gains UK citizenship and we are also able to get married here in the UK, do you think it would make the rest a bit easier? We're hopeful this may speed things up a bit more for my immigration bits in Italy, but still keep the UKs doors open to us both. Do you think that sounds feasible at all?

Thank you for all your help, your advice has been so helpful!

Okay, first thought: there are rules about how many days one can have spent outside the UK within 12 months before applying for UK naturalisation:
"You should also not have:

spent more than 450 days outside the UK during those 5 years
spent more than 90 days outside the UK in the last 12 months"

Source:

https://www.gov.uk/apply-citizenship-eea

So, both for him and you, if you want to naturalise in about two year's time, this will be in conflict with your UK/Italy bi-weekly travel plans.

Secondly, I think it sounds utterly expensive, exhausting and risky.

90 days in 180 days is not a right, it's the maximum that may or may not be granted. If border forces think you are spending too much time in Italy for not to be working illegally, this can get you into trouble and mess up plans you have for the future.

Your partner should check with the Italian tax authorities about rules of tax residency and such - if it's for instance just a certain number of days spent in Italy, that could also complicate things - apart from the working without a work permit and not paying social contributions.

Getting married will make things easier in a lot ways, but not necessarily right now. It would make immigrating to Italy as a spouse possible, it would make it possible to move to any EEA country (apart from Italy unless Surinder Singh and who knows what will happen to that in regards to treaty rights exercised in the UK) under EU freedom of movement rules.

Getting UK citizenship for you will probably make it easier for you to migrate to Italy in the future but we don't know yet how easy.

[PeatD]

Thanks for your advice @ALKB! You're right, the plan to travel back and forth between London and Sardinia fortnightly is ridiculous, even in non-pandemic circumstances, its not feasible and unsustainable on all fronts.

The link you shared was helpful, however it lead me onto this page: https://www.gov.uk/apply-citizenship-in ... -to-remain . There seems to be slightly different circumstances for those who have been granted Settled Status, as opposed to Permanent Residence. So i think if i understand correctly, he will lose the right to apply, only if he is away from the UK for more than 5 years? And also the below, which i think he is ok:

"Residency requirements
You should have lived in the UK for at least 5 years before the date of your application. [Yes because he's lived here since Sept 2014)
...
You should also not have:

spent more than 450 days outside the UK during those 5 years [we've had several holidays, and he travels for work, but I'm sure this has been well under 450 days]
spent more than 90 days outside the UK in the last 12 months [this one may cut it close...]
broken any UK immigration laws (for example living illegally in the UK) [n/a]

As it stands, all registry offices in London are still closed so we will just need to wait and see when we can apply to get married. And will most likely travel back to London for that, as it seems like there are more requirements to get married in Italy, as an Australian citizen.

We will continue our research on the European forum now, as it seems like the issue at hand now is really the legality of my move to Italy. Thank you for your guidance, its been super helpful!

[PeatD]

I've realised i have posted this in the European forum, not the UK no-tiered forum as i thought. D'oh!
So on that note, I have been reading about how to live in Italy with my unmarried partner and it seems I need to obtain a "long-stay visa" and then apply for a residence permit, once i'm in Italy.

However it seems I can only apply for this from my home country... which is an awfully far lol!

https://visaguide.world/europe/italy-vi ... ce-permit/

Alternatively, I've been reading that i could potentially apply for a family visa, but its not clear if my UK residence permit will be accepted as proof of our relationship - as mentioned we are unmarried, so I've been granted UK rights as an extended family member. However the physical biometrics card i have states "family member- eu residence" and at the bottom "Residence card of a family member of a union citizen".... it also seems like I need to obtain a "Nulla Osta".. which i can only get from the Australian embassies in Rome or Milan I think...

I'm unsure what to do here and am going to try and contact the Italian embassy here in London perhaps.. But we're also in contact with some friends who work with Italian Immigration to understand whats needed.

Would you or anyone here have any knowledge or advice for this route?

[ALKB]

I've realised i have posted this in the European forum, not the UK no-tiered forum as i thought. D'oh!
So on that note, I have been reading about how to live in Italy with my unmarried partner and it seems I need to obtain a "long-stay visa" and then apply for a residence permit, once i'm in Italy.

However it seems I can only apply for this from my home country... which is an awfully far lol!

https://visaguide.world/europe/italy-vi ... ce-permit/

Alternatively, I've been reading that i could potentially apply for a family visa, but its not clear if my UK residence permit will be accepted as proof of our relationship - as mentioned we are unmarried, so I've been granted UK rights as an extended family member. However the physical biometrics card i have states "family member- eu residence" and at the bottom "Residence card of a family member of a union citizen".... it also seems like I need to obtain a "Nulla Osta".. which i can only get from the Australian embassies in Rome or Milan I think...

I'm unsure what to do here and am going to try and contact the Italian embassy here in London perhaps.. But we're also in contact with some friends who work with Italian Immigration to understand whats needed.

Would you or anyone here have any knowledge or advice for this route?

That would be the Surinder Singh route that I mentioned several times. In general, a European national can only bring non-EEA family members under EU law to countries that that the EU national does NOT hold citizenship of. So, an Italian in Italy can not use European law to bring non-EEA family members, they have to meet the requirements of Italian domestic law (same for a German in Germany, a Greek in Greece, etc.)

The Exception is, if the EU national and their non-EEA family member have lived together in an EU country that the EU national does not hold citizenship of (your Italian partner in the UK) and the EU national has 'exercised EU treaty rights' = been employed, self employed, a full time student, self-sufficient. Then, the EU national can be seen as an EU national in their own country and can use EU freedom of movement rules to move to their home country instead of the stricter domestic immigration law.

The tricky bits are

a) as an unmarried partner you are an extended family member and have no automatic rights like direct family members

b) Italy does not accept unmarried partnerships for immigration purposes

c) The UK has left the EU and is in the transition period and I am simply unaware how Italy treats Surinder Singh cases in general and what their view is regarding Surinder Singh cases coming from the UK after 01.01.2021 when the transition period most probably ends.


Regarding applying for a long stay visa, generally, one can apply from a country one either holds citizenship of or is a legal resident of, I'd be surprised if Italy would have different rules, but do ask the Embassy.


You might want to post in the naturalisation sub section of the forum too, where you will find people who are very knowledgeable about the rules and process.

[PeatD]

Hello ALKB, thank you so much for your response. Apologies for my delayed reply. I think i now understand what you mean by "the EU national can be seen as an EU national in their own country and can use EU freedom of movement rules to move to their home country instead of the stricter domestic immigration law.". I had struggled to understand what the Surinder Singh route actually meant, but i think I understand now..

We have now been in Italy since the end of July, so I'm not sure I'd be able to apply for any long stay visa now? I was unable to get any info from the embassies in London before we left, but am still looking at our options.

I've managed to book an appointment for a "nulla osta" with the Australian embassy in Rome in October and will try to find a way to get married in Italy as all registry offices in London are still unavailable for any marriage ceremonies (even the basic ones!). Seems like our best bet is to get married, and remain as UK residents, temporarily staying in Italy, for the time being.

If we were to be able to get married within that 90 days (out of 180) of being in Italy, or even if we had a ceremony booked for sometime after this 90 days, would that allow us to use the 'Surinder Singh' route?

[ALKB]

Hello ALKB, thank you so much for your response. Apologies for my delayed reply. I think i now understand what you mean by "the EU national can be seen as an EU national in their own country and can use EU freedom of movement rules to move to their home country instead of the stricter domestic immigration law.". I had struggled to understand what the Surinder Singh route actually meant, but i think I understand now..

We have now been in Italy since the end of July, so I'm not sure I'd be able to apply for any long stay visa now? I was unable to get any info from the embassies in London before we left, but am still looking at our options.

I've managed to book an appointment for a "nulla osta" with the Australian embassy in Rome in October and will try to find a way to get married in Italy as all registry offices in London are still unavailable for any marriage ceremonies (even the basic ones!). Seems like our best bet is to get married, and remain as UK residents, temporarily staying in Italy, for the time being.

If we were to be able to get married within that 90 days (out of 180) of being in Italy, or even if we had a ceremony booked for sometime after this 90 days, would that allow us to use the 'Surinder Singh' route?

Just to really make things clear for your specific case:

Italian national with non-EEA spouse (or in your case partner) in UK (or any other EU country the Italian national does NOT hold citizenship of) - EU freedom of movement rules apply. That's how you received your residence card in the UK.

Italian national with non-EEA spouse in Italy (or German national in Germany, Greek national in Greece, etc.) - domestic immigration law applies to the non-EEA spouse. Rules may and often do ask for minimum income, adequate accommodation, sometimes the non-EEA spouse has to attend mandatory language and culture classes. I don't know enough Italian to look all that up - your partner should be able to find out without any problem.

Italian national with non-EEA spouse moving to Italy with spouse AFTER living in another EU country that the Italian national does not hold citizenship of (exercising freedom of movement rights) together with non-EEA spouse - Surinder Singh Route - EU freedom of movement rules apply to the Italian national even though they hold Italian citizenship. As far as I know, you could only use this route if you arrive (for a permanent move) in Italy before 31st December 2020.

I don't see why you wouldn't be able to apply under the Surinder Singh route if you manage to marry and move until the end of the year.

But I thought your partner wanted to naturalise as British towards the end of the year?

For you to apply under Surinder Singh, your partner has to permanently move to Italy with you. If he permanently moves to Italy, you lose your right of residence and your work rights in the UK - are your employers now okay with you permanently working remotely from Italy or is that no longer a consideration?

[ALKB]

Hello ALKB, thank you so much for your response. Apologies for my delayed reply. I think i now understand what you mean by "the EU national can be seen as an EU national in their own country and can use EU freedom of movement rules to move to their home country instead of the stricter domestic immigration law.". I had struggled to understand what the Surinder Singh route actually meant, but i think I understand now..

We have now been in Italy since the end of July, so I'm not sure I'd be able to apply for any long stay visa now? I was unable to get any info from the embassies in London before we left, but am still looking at our options.

I've managed to book an appointment for a "nulla osta" with the Australian embassy in Rome in October and will try to find a way to get married in Italy as all registry offices in London are still unavailable for any marriage ceremonies (even the basic ones!). Seems like our best bet is to get married, and remain as UK residents, temporarily staying in Italy, for the time being.

If we were to be able to get married within that 90 days (out of 180) of being in Italy, or even if we had a ceremony booked for sometime after this 90 days, would that allow us to use the 'Surinder Singh' route?

Just to really make things clear for your specific case:

Italian national with non-EEA spouse (or in your case partner) in UK (or any other EU country the Italian national does NOT hold citizenship of) - EU freedom of movement rules apply. That's how you received your residence card in the UK.

Italian national with non-EEA spouse in Italy (or German national in Germany, Greek national in Greece, etc.) - domestic immigration law applies to the non-EEA spouse. Rules may and often do ask for minimum income, adequate accommodation, sometimes the non-EEA spouse has to attend mandatory language and culture classes. I don't know enough Italian to look all that up - your partner should be able to find out without any problem.

Italian national with non-EEA spouse moving to Italy with spouse AFTER living in another EU country that the Italian national does not hold citizenship of (exercising freedom of movement rights) together with non-EEA spouse - Surinder Singh Route - EU freedom of movement rules apply to the Italian national even though they hold Italian citizenship. As far as I know, you could only use this route if you arrive (for a permanent move) in Italy before 31st December 2020.

I don't see why you wouldn't be able to apply under the Surinder Singh route if you manage to marry and move until the end of the year.

But I thought your partner wanted to naturalise as British towards the end of the year?

For you to apply under Surinder Singh, your partner has to permanently move to Italy with you. If he permanently moves to Italy, you lose your right of residence and your work rights in the UK - are your employers now okay with you permanently working remotely from Italy or is that no longer a consideration?

Getting married would also enable you to easily move to any other EU country that your partner does not hold citizenship of.

[Alice109]

Hello! Hope everyone is well and keeping safe during these strange times. I'm in need of some advice regarding a bit of a complex situation regarding immigration for both the UK and Italy. I had hoped to post in both the "UK non-tier" and "immigration to other countries" forums as I wasn't sure which was most appropriate, however it seems duplicate posts are deleted. So will try the UK section first.

So a bit of background. I moved to London in 2014 on a tier 5 YM visa, with my partner. I'm from Australia and he is from Italy and in 2016 I was granted a residence permit to remain in the UK (as an "extended family member" of an EU citizen) until 2021. Earlier this year I received pre-settled status and my partner got settled status, and I was planning to apply for settled status/permanent residency next year, as I would be eligible to apply when my permit expired. 

However with Brexit looming and now the pandemic, we find ourselves re-assessing our lives and priorities and no longer feel it's right for us to stay. So we are now looking to relocate to my partner's home in Sardinia, where we have a family network and a home to live in free of charge. 

We both have full time jobs with UK employers which we'd like to keep, however are in discussion with our employers to see if we can work remotely, from overseas on a permanent basis. Or at least on a temporary basis for the moment, as we've both been advised that we won't be back in the office until at least October. We're currently awaiting an answer from our employers, but have also since received a notice to vacate our rented London flat by September. So this has accelerated our plans and put some pressure on us now, as we do not want to be locked into a new 1 year rental contract.

So I'm not really sure what I need to do to make things legally sound, in terms of immigration for both Italy and the UK.

What does this mean for my UK residence permit? Could I even still work for a UK employer? I believe as an Australian, I can be in Italy for no more than 90 days and won't have any rights to work. So if I make sure I leave every few months, and remain employed in the UK, is that still technically legal if I maintain my UK bank account and can provide a UK address? Or would I be breaching immigration rules?

Additionally, I will need to get immigration sorted for Italy too, but there doesn't seem to be an option for non-married partners? And I don't seem to qualify for any other options. So I'm not quite sure what to do for Italy. We are considering getting married but that also seems rather complicated and I'm not even sure that would entitle me to residency in Italy either. And of course, with the added uncertainty of Covid-19 and travel, there are a ton of services and regulatory bodies that are just not operating either, so we're not even sure we can sort out Visa/immigration permits before September. It's all a little overwhelming, however I'm very conscious that we are in a very privileged situation.

I'd be super grateful for any advice anyone could share, as I'm really not sure where to start, or what this all means in terms UK and Italy immigration. If further clarity is needed for my situation or there are any questions at all, please feel free to let me know.

Thank you in advance!

If your partner is Italian he will have no problems going back to Italy, if you are married you will get Italian passport in 2 years or something short like it, if you are not married you can apply for permesso di soggiorno if you have a job it'll be fine.