Reading Time: 4 minutes

The Italian Elective Residency Visa (ERV) – Case Study

De Tullio Law Firm analyses the ERV through two opposite case studies

The main requirements when applying for an ERV are as follows:

  • Availability of a dwelling; i.e., Ownership or tenancy of a property in Italy, which applicant has elected as their residence.
  • Financial flow corresponding to approximately Euro 31,000 per year, i.e., an ample and autonomous financial resources, which can reasonably be expected to continue in to the future for the duration of the applicant’s residence in Italy.

Italian Elective Residency Visa

The evaluation of the existence of the elements above for an ERV application by the consulate is discretionary. However, the evaluation cannot be arbitrary.

This means that the consulate cannot refuse to grant an ERV in the absence of valid reasons to do so and that it must be possible for the applicant to understand the logic behind the decision-making process of the relevant authority involved in granting or refusing an ERV.

A consulate’s negative decision about the ERV application can be challenged in Court.

Each year, a number of ERV applications are refused. Here, we examine two such cases – and Judgment no. 1396 of 5th December, 2018. Both cases were refused and appeals lodged, in the Administrative Court of Lazio, against the refusal of applications for an ERV by the Italian General Consulate of New York.

Case 1: The applicants successfully challenged the consulate’s decision

In the first case, no. 6421, the applicants had applied for an ERV with the intention of permanently establishing their residence in Turin.

The application was refused by the consulate on the grounds that the applicants did not meet the income requirement set by Italian law for ERVs.

In this case, the applicants could rely on an annual rental income corresponding to USD 80,000.00 deriving from a property in Brooklyn. They also had another annual income corresponding to USD 60,000.00, paid monthly by an insurance company. Such financial resources clearly exceeded the amount set by Italian law.

When they refused to grant an ERV, the consulate generically referred to the value of assets, which were subject to market fluctuations. They did not specifically analyse the sources of income listed above. They did not therefore, explain the reason why such incomes, which appeared to be steady and continuous over time, were considered insufficient to counterbalance the possible fluctuations of the asset value.

For this reason and in light of the documentation provided by the applicants, the Administrative Court ordered the consulate to review its decision.

Case 2: The Court confirmed the consulate’s decision of ERV denial

In the second case, no. 1396, ERV issuance was also refused. In her application to the Italian consulate in New York, the applicant had declared starting a professional activity as a consultant in 1999 and that she therefore had sufficient savings to fund her lifestyle without needing to work.

After her application for an ERV was rejected three times, the applicant decided to challenge the decision on the following grounds: lack of due diligence, arbitrary decision-making, [1]

The Italian consulate in New York made the following statement regarding this case:

“The information you provided on the automatic withdrawal from your investment account shows that the amount of 0 monthly paid into your checking account, generating a yearly income of USD 36,000 (approx. Euro 32,000), barely meets the minimum required amount of Euro 31,000 per annum, as set forth by Italian law, for the issuance of an ERV, especially considering that these funds are subject to fluctuations in Euro/USD exchange rates.

Also, your financial assets – although substantial – are mostly invested in stock funds and investments that, by definition, fluctuate significantly with the financial markets and demonstrate a high level of volatility. Therefore, your funds do not respond to the documented and detailed guarantee of substantial and stable private income, which must be of a regular nature and reasonably certain in the future, as required by law”.

The denial was grounded on three main elements:

  • Absence of adequate and documented guarantees concerning availability of large, autonomous, stable and regular financial resources, which can also be assumed to exist in the future. The declared income, corresponding to USD36,000 (approximately Euro32,000) barely meet the annual legal requirement (corresponding to Euro31,000) and are subject to foreign exchange rate fluctuations;
  • The financial resources, although large, were mostly invested in stocks, therefore by definition subject to

The Administrative Court in Lazio, deemed the applicant’s grounds for appeal to be unfounded. The court judged that the consulate’s refusal to issue an ERV did not appear to be unreasonable.

According to Italian case law, a bank account, unless extremely significant, does not constitute evidence of ample financial resources with future continuity.

The court in this case therefore considered the consulate’s findings to be correct. The assets of the applicant, although significant, did not generate sufficient income to warrant the issuance of an ERV. In addition, the court concurred with the consulate regarding foreign exchange risks and the volatility of financial markets to which stock investments are subject.

For the reasons above the Court refused the applicant’s appeal and confirmed the consulate’s decision.

In Conclusion

Misinterpretation and misunderstanding by a consulate of the documentation provided by an applicant for an ERV can always be contested by an applicant. It is highly recommended to obtain legal support in contesting a consulate’s assessment.

Should you need further information concerning an elective residency visa, please feel free to contact De Tullio Law Firm at the following email address info@detulliolawfirm.com.

[1] The above grounds are typical grounds of appeal that the claimant can use against administrative discretional decisions, such as this consulate decision for an ERV, which is discretional, but cannot be arbitrary.