Overstaying on a Schengen visa

[Northernjedi]

Hello guys

My Fiancee took a Schengen visa for 6 months to Germany in Jan 2006, however, she has ended up in Italy and has been there ever since. She is obviously illegal now and stuck because her visa expired over a year ago.

My question is, if we marry in Italy (even though she is illegal it can be done) , can she re-apply for a Schengen visa as the spouse of a EU citizen? The reason being that she could then leave Italy without fear of being deported or having her passport stamped as she passes through immigration in the airport. Equally, she could fly back home to apply for a British "spouse" visa but if she is rejected she could simply return back to Italy on the Schengen visa.

Her: Moldovan & Me: British citizen

Thanks in advance

[Dawie]

As far as I know you have to be outside the Schengen zone in order to apply for a Schengen visa.

[Northernjedi]

Thanks for your reply Dawie. It was an obvious oversight for me to make as I have never needed a Schengen visa.

Are there any suitable alternatives like EEA permit etc?

Thanks

[Dawie]

Thanks for your reply Dawie. It was an obvious oversight for me to make as I have never needed a Schengen visa.

Are there any suitable alternatives like EEA permit etc?

Thanks

Have you been living and working in Italy as well? I ask because if you have, then you will be able to apply for an EEA permit from the British embassy in Moldova even though you are a British citizen. This is simply because you have been previously exercising your rights as a EU citizen in Italy. This gives you the option of asking the British embassy to treat you as an EU citizen rather than as a British citizen thus giving you and your future wife access to the provisions of the EEA family permit allowing you to take your wife to the UK.

The benefit of doing those over applying for a British spouse visa is that the criteria for the EEA permit are far less strict than the criteria for a spouse visa. All you have to do is prove that you are legally married to her and that you have been living in Italy.

Unfortunately you will not be able to apply at the British embassy in Rome though because your girlfriend is not legally living in Italy.

[Wanderer]

Hasn't this already been covered here?

http://www.immigrationboards.com/viewto ... highlight=

[Northernjedi]

Actually Wanderer it wasn't covered in this context because I was hoping to get my fiancee OUT of Italy before we got married and my original questions were aimed around that agenda. However, I now know she won't risk leaving Italy despite my advice so now we are discussing ways to correct her situation whilst she is still in Italy and of course still moving forward with our marriage plans. She feels it's less risky for her this way if things go tit's up with any future visa application. (not that I completely agree with this but then again I am the one with the EU passport!)

Thanks again Dawie for your advice. I am not in Italy currently but we have discussed my moving to Italy for a few months and this is the reason why I am here again just to make sure everything is ok "step-by-step."

We are also looking to marry in Rome now and hopefully we will try to get her Nulla Osta soon.

[Richard66]

If you marry her in Italy all will be solved. You'll need to go there beforehand and register at the comune (say 6 months before). Once you have your residence confirmed, apply for marriage at your comune. You'll need your and her Nulla Osta (a certificate of no impedement) Once you both marry apply for a Carta d Soggiorno per Familiare UE for her. My wife got hers the day after the marriage. And, as you'll be exercising treaty rights in another EEA state you'll even be able to apply for an EEA family permit to go back together to the UK! No need for visas anymore.

[Northernjedi]

Hi Richard

Thanks for your input and it's reassuring to know that you have succeeded in doing exactly what we plan to do.

Question: Is it not possible to marry her whilst I am still living in the UK; i.e. I fly over and we have the marriage with me being the tourist, I stay a for a few weeks then return to the UK, she remains in Italy whilst we apply for the necessary documents like residency permit for her and/or EEA permit.

We also hope to get married at some point this year and hopefully not 6 months away.

What do you think?

If I have to live in Italy then so be it but I would prefer to continue my work and keep my house here so that we have something to come back to.

[Richard66]

Hello,

Yes, you can marry as a tourist, but it might cost you a small fortune if you decide to marry at a popular destination. The catch is, your wife will need to apply for a "subordinate" residence card (carta di soggiorno...), which is dependent on your residing in Italy. Now, if you don't live in Italy, how can you apply for that? You need to be resident. Of course you could both apply for the documents at the same time, but you'll need to give an address somewhere and the police actually do come along to see if you really live there before they issue your residence. If you're not home at the time they come, they'll take note of any names on the doorbell and will ask about if anyone knows you.

I believe this is the only way she'll get a residence card that covers her period of illegality. She did at a certain point have a Schengen visa and the Italians request an entry visa (note that I say an entry visa, not a VALID entry visa).

Bear in mind that the law in Italy is "interpreted" by each single Questura (the authority that issues such residence cards) and they might take a dom view of your wife's visa history, though they will no longer be able to deport her and will need to do find a solution instead. What is all right in Rome is not necessarily all right in Naples.

And another thing: scout around for where you marry. Some small-town mayors on the lookout for votes showing a tough line on illegal immigration don't look kindly on such people marrying and might be inclined to invite the police to the cerimony.

[Northernjedi]

Hi Richard

I see there's plenty of food for thought here. I realised my error regarding the residency permit and I understand that I will have to register myself as living in Italy in order to get the permit.... then so be it!

I hear that the criteria in and around Rome is less strict with marital documents due to the frequency of marriages there so I will be looking in and around this area.

Did your wife have any problems getting the Nulla Osta from the Russian Embassy given that she had overstayed? I assume she went to the Russian Embassy in Italy?

Do you know how long(on average) does it take for a police visit once I have registered myself as living in Italy?

Thanks in advance

[Richard66]

Hello,

The Russian Embassy couldn't care less. All they want are both her passports and her birth certificate. She'll need to go to Rome (if that's where you'll be), but get there really early: before 8am. They only allow around 10 people a day to request the nulla osta. Once she gets in it will be ready in two hours. Your big wait will be the British consulate: they'll want £ 158 and 21 days to issue a nulla osta for you, while the Russians are happy with €70 and the town hall will be satisfied with €14,62.

The police may come anytime in the next 3 months, but don't worry: you request your residence on day 1 and, until proved otherwise, you're considered to be resident until it is proved otherwise.

[Northernjedi]

Thanks again Richard.

I have yet another question: why do I need to apply for a Nulla Osta from the British Embassy there? Surely I can do it from over here and have it translated?

[Richard66]

Not if you're resident in Italy! If I were you I'd call the embassy and see what they say, but the rule is, you need to apply in the country where you're resident and if you're resident in Florence the Town Hall will want to see the document issued in Italy.

[Northernjedi]

It's a valid point! Then I think it's better for me if we marry and then apply for the residency permit for both of us.

[Richard66]

But do call the British Embassy first and see what they want. You might get away by bringing a paper from the UK and then they issue you your Nulla Osta. In any case, you'll need to be here 21 days before you apply, if my memory doesn't fail me. You'll find information on the embassy Internet site, though updating it doesn't seem to be among their priorities.

[spud]

I'm in pretty much the same position British guy with Moldovian girl wanting to get married, she an over stayer on Schengen visa ...how did you get on?

Also anybody know what the concequesnces are if we decide to leave Europe under our own steam to get married in Moldova ..thinking via Belgium. Big problem at the airport? Also if I work in Europe (holland) once we are married will she being able to get back in?

Thanks

[Prawo]

I'm in pretty much the same position British guy with Moldovian girl wanting to get married, she an over stayer on Schengen visa ...how did you get on?

Also anybody know what the consequences are if we decide to leave Europe under our own steam to get married in Moldova ..thinking via Belgium. Big problem at the airport? Also if I work in Europe (holland) once we are married will she being able to get back in?

Thanks

If you are an EU citizen and live in The Netherlands, you do not have to get married and she does not have to go to Moldova.

Of course you can get married, In The Netherlands or in Moldova, but there is no need to hurry with this.

I suggest she registers at the town hall at your address, and applies at the same time for verification against EU law, using this form.

What she will need is a certificate she is single. A birth certificate is not obligatory, bus useful. Both documents have to be legalised and not older than six month.

That she overstayed her visa has no influence at all.

If you need any help, more explanation or simply want to keep a lawyer at hand in case of complications, you can send me an e-mail or personal message.