The Italian Parliament has introduced the possibility for non-EU seafarers to obtain a visa for work purposes that allows them to enter the Schengen area and remain on board vessels moored in Italian ports for a maximum of 365 days
by Federico Santini*
The December 2021 issue was dedicated to the topic of the presence of non-EU seafarers on board vessels moored for a long time in an Italian port following the notice of the Ministry of the Interior of the Italian Republic sent in August 2021 to all local offices of the border police. This notice established that the exit stamp on the travel documents of extra-EU seafarers embarked on vessels moored for long time in an Italian port must be affixed when the vessel’s captain notifies the local office of the police border of the imminent departure of the vessel.
The notice had been issued following the ruling of the Court of Justice of the European Union dated 5 February 2020 in which it was stated that “Article 11, paragraph 1, of the Schengen border code is to be interpreted so that, if a seafarer who is a national of a non-member country boards a vessel moored for a long time in the port of a State forming part of the Schengen area in order to perform work on board that ship, before leaving that port, an exit stamp must be affixed on the travel documents of the seafarer, provided that the affixing of an exit stamp is required by that code, not during embarking, but when the vessel’s captain notifies the local national authorities that the vessel is leaving the port”.
By shifting the time of affixing of the exit stamp from the time of the seafarer embarkation to the time immediately prior to the vessel’s departure, the recent ruling of the Court of Justice made it virtually impossible to employee non-EU seafarers.
Before the issue of the above mentioned notice of the Ministry of the Interior, the non-EU seafarers received the exit stamp when boarding the ship, so that the 90-day period of validity of the tourist visa was suspended until disembarkation, when the entry stamp was affixed and, therefore, the 90-day term of the visa started again. By postponing the time of affixing of the exit stamp from when the seafarer embarks to the time when the vessel leaves the port, the recent ruling of the Court of Justice made it virtually impossible to employee non-EU seafarers, except in limited cases and for limited periods of time. The issue was the subject of extensive debates during the first half of 2022 and various major yachting industry associations intervened decisively on the matter to protect the Italian market. With Article 13-ter, paragraph 1, of Decree-Law 21 of 2022, converted with amendments by Law 51 of 2022, Article 27 of the Consolidated Law on immigration was amended with the addition of paragraph 1-septies.
This new law provision establishes that the seafarers requested to embark on vessels, including those flying a flag of a non-EU country, moored in Italian ports, are authorized to work on board for a period up to 365 days without work permission provided that before entering the Schengen area they are granted a work visa necessary to perform that type of work.
The previous practice allowed seafarers to remain on board the vessel, even when moored in an EU port, for the entire duration of their employment on board with a valid and effective travel visa.
The Italian Parliament has, therefore, introduced the possibility for non-EU seafarers to obtain a work visa allowing them to enter the Schengen area and remain on board of vessels moored in Italian ports for a maximum of 365 days, while previously a tourist visa was allowed for a maximum time of 90 days. This new rule does not affect the practice adopted by the Boarder Police, whereby the exit stamp is affixed upon the vessel leaving the port rather than upon embarkation, but simply bypasses the issue as it substantially prolongs the duration of the visa.
However, as reported by several marine industry professionals, this solution is not fully satisfactory since it imposes on the seafarer a visa issuing procedure which, due to the documents to be supplied and the undefined timing of the consular offices, may take too long and, therefore, may not be able to satisfy the shipowners’ need to ensure a rapid turnover of crew in case of unpredicted and unpredictable events such as illness, dismissal, accidents, permits of one or more crew members.
Apart from the possible corrective measures that can be adopted to speed up visa issuance procedures as much as possible, a solution addressing the root of the problem would have been preferable. In other words, a solution that would correct a legally erroneous interpretation of the ruling of the Court of Justice dated 5 February 2020 and that brought back to the previous practice.
(Restrictions to seafarers – Barchemagazine.com – February 2023)