Post
by ciaramc » Fri Mar 20, 2009 10:00 am
This is the responsce I got off the Commission -
Thank you for your letter concerning the issue of a residence permit in Italy for your husband.
You are an Irish national and have been living and working in Italy since 2002. You where married to a Moroccan citizen in July 2006, and consequently proceeded to apply for a resident permit for him. You claim that the Italian authorities refused to issue him with such a permit in April 2008 and that they founded their refusal on the fact that your husband had previously resided illegally in Italy (without a valid visa).
As far as Community law on free movement is concerned, you have exercised the right to move and reside freely in an EU Member State other than your own.
Article 18 of the Treaty stipulates that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
Article 5 of the Directive 2004/38/EC provides that family members who are not nationals of a Member State shall only be required to have an entry visa1 in accordance with Regulation (EC) No 539/2001 when residence is sought within the "Schengen" area2. No family reunification visa is needed. Morocco is listed in Annex I ofregulation (EC) No 539/2001 of 15 March 2001 among the countries whose nationals are required to be in possession of a visa when crossing the external borders ofthe "Schengen" area.
Family members ofUnion citizen who are third country nationals can apply for residence card according to Articles 7 (2), 9 and 10 of Directive 2004/38/EC. The host Member State shall only require presentation of a valid passport, a document attesting the existence of a family relationship and the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining.
I Judgement of 14 Apri12005, case C-157/03 Commission vs Spain. 2 States in the "Schengen" area: Belgium, France, Germany, Luxemburg, Netherlands, Portugal, Spain, Italy, Austria, Greece, Denmark, Finland, Iceland, Norway, Sweden, Slovenia, Malta, Czech Republic, Slovakia, Hungary, Poland, Estonia, Latvia, Lithuania.
Commission europeenne, B-1 049 Bruxelles / Europese Commissie, B-1 049 Brussel -Belgium. Telephone: (+32-2) 299 11 11. Office: LX 46 -01/083. Telephone: direct line (+32-2) 296.56.10. Fax: (+32-2) 297.95.86
Article 10 (1) of Directive 2004/38/EC states that the residence card shall be issued no later than six months from the date on which they submit the application.
The European Court of Justice has held that a Member State is not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and ofhis marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfulll.
On the basis of Article 15 (1) read in conjunction with Article 30 (2) of the same Directive, your husband should have been informed, precisely and in full, ofthe grounds on which the refusal to issue him with a residence card was based, unless this is contrary to the interest of State security.
In view of the above, the Italian authorities may be acting contrary to the provisions of the Directive by requesting your husband to apply for a family reunification visa instead of an entry visa, by refusing your husband's application for a residence card as a family member of a Union citizen, by asking for supporting documents other than those listed in the Directive , by not delivering a decision in less than six months and by failing to inform you precisely and in full of the reason of any administrative act restricting the right offree movement and residence.
I invite you to inform me precisely which Italian authorities are involved in your case (Comune, Questura, Prefettura ) as well as your husband's full contact details (name, address, etc). This would permit my services to follow up the case with the relevant Italian autorithies.
As you have not indicated your choice concerning confidentiality, the Commission is not authorised to disclose your identities where it makes representations to the national authorities. Should you consider that authorising the Commission to disclose your identities in its contacts with the national authorities would be preferable as it would allow the Commission and the national authorities to refer to the particulars of your case, please indicate that to us in writing.
Yours sincerely,
