DNA TEST: CAN I USE IT FOR MY ITALIAN CITIZENSHIP?

Mar 19, 2020

This article is written by Marco Mazzeschi and contributed to our publication on Medium.com.

Follow us on Medium.com/StudioMazzeschi for more latest articles.


Few months ago I received a bizarre query: a person sent me a DNA test confirming that he was a descendant of Pippin (769–811 a.C.), the son of Charlemagne(742–814 a.C.). He asked whether this proof could support his application to become an Italian citizen. Pippin was in fact made “king of Italy” after his father’s conquest of the Lombards and crowned by Pope Hadrian I.

Photo by Ian Noble on Unsplash

Italian citizenship is based upon the principle of “jure sanguinis”. This means that a child who is born to an Italian father or mother, is also an Italian citizen, no matter where the child is born. People with an Italian ancestor may be eligible for citizenship, depending on a number of factors such as the date and place of birth of their parents, grandparents, and even great-grandparents. An individual can apply for Italian citizenship with no limit to the number of generations.

Yet, the the answer to Pippin’s query was NO. Why?

1. “ITALY” did not exist until 1861 !!!!

Italy was unified and become Kingdom of Italy only on March 17, 1861, with the royal family of Piedmont-Sardinia as the new ruling monarchs of Italy.

Since then, the current shape of the country has also changed several times, due to the annexation or loss of some territories.

Venetia was annexed in 1866 following the Austrian defeat in the Austro-Prussian War. The Papal States (in central Italy) and Rome were annexed in 1870. The north east territories (Trento and Trieste) were annexed after WW1, together with the cities of Pola (Istria) and Zara (Dalmatia). The city of Fiume (in Croatia) was annexed only in 1924.

After WW2, the territories of Istria and Dalmatia and the city of Fiume were lost and assigned to the former Yugoslavia.

Italy has also possessed for some time colonies such as Eritrea and Somalia (1890–1945, Ethiopia (1936–1945) and Lybia (1912–1945). Individuals born during the time these territories were “italian” can be also entitled, under different conditions, to citizenship.

Since WW2, the territory of Italy, which on June 2 1946 changed its constitutional status from monarchy to republic, has remained unchanged.

Accordingly:

  • until 1861 there was no Italian State and it is not possible to talk of Italian citizenship. Thus, with some exceptions, the oldest Italian ancestor from whom Italian citizenship can be derived must have been a person who acquired Italian citizenship in or after 1861;
  • the fact that a territory (such as Istria and Dalmatia) was only temporarily part of the Italian territory can impact — depending of several other factors — on the possible eligibility;
  • Italian Law is very precise and requires the applicant to prove eligibility by means of several certificates and DNA test is not specifically listed;
  • last but not least, eligibility requirements have varied in consequence of the enforcement of different laws regulating the attribution and loss of citizenship (the most important being the 1865 Civil Code, Law 55/1912, 1948 Constitution and Law 91/1992).

2. DUAL CITIZENSHIP WAS NOT ALLOWED UNTIL 1992

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Demonstrating to be 100% Italian for ancestry (i.e. to have an Italian mother or father) is not enough to obtain citizenship. In fact, until 1992 Italian Law did not allow dual citizenship. Accordingly, citizenship was automatically lost if someone naturalized (i.e. become citizen) of another country.

Naturalization in another country can happen voluntarily, i.e. an individual who willingly accept to acquire a second citizenship, but also for other factors which can vary upon the laws of the country where the individual has moved. For example, in some countries a foreigner automatically acquires citizenship by (i) marrying a national; (ii) being born in the country (ius soli); (iii) serve in the State’s Army or taking a job with the Government; (iv) taking residency and living in a country for a certain number of years.

Accordingly, an individual may be in a situation where he acquired a second citizenship (and therefore lost the Italian one) even without his knowledge or his will. The most recent example is the Australian parliamentary eligibility crisis where fifteen sitting politicians were ruled ineligible by the High Court of Australia or resigned pre-emptively. The Court in fact held that a dual citizen, irrespective of whether they knew about their citizenship status, will be disqualified from Parliament unless they are irremediably prevented by foreign law from renouncing the foreign citizenship and have taken all steps that are reasonably required to renounce that foreign citizenship

3. UNTIL 1948 WOMEN COULD NOT PASS CITIZENSHIP TO THEIR DESCENDANTS

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Under the 1912 Citizenship Law, only men were able to transfer their Italian lineage to children, while women could hold but not pass citizenship to their descendants. The principles of gender equality were laid down only on January 1, 1948 when the Italian Constitution entered into force. Unfortunately, the new legislation was not retroactive and so children born to an Italian mother before 1948 are not automatically Italian.

If you think this is discriminating between women and men, don’t worry! The Italian Supreme Court agrees with you.

In 2009, it established that it is unconstitutional to discriminate between women and men even in citizenship matters. All descendants born anytime from an Italian parent, father or mother, are Italian citizens by birth right.

Unfortunately, this judgement did not have any consequences on the Consular behaviour and if you fall into the “1948 cases” and submit a request of recognition of Italian citizenship Jure Sanguinis, Consulates will strictly apply the Italian nationality law and will reject your application. Consequently, you can only proceed through a legal proceeding at the Italian Court in Rome.

CAN I OBTAIN CITIZENSHIP IF I DO NOT HAVE ITALIAN ANCESTORS?

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There are other ways to obtain citizenship, the most common are by marriage and by naturalization through residency.

Marriage or same sex civil union: Italian citizenship may be obtained by marriage to an Italian citizen. This is an actual right of all spouses and can only be denied to those who have a criminal record for a serious crime committed either in or outside of Italy. It can also be denied to those who are considered a threat to the national security and public order. Following your marriage to an Italian citizen certain requirement must be met under Italian law to enable you to obtain Italian citizenship; for instance, legal residency in Italy for a period of at least two years, or three years if you and your spouse are living abroad (both terms are halved if the couple has children). The marriage must subsist throughout the entire process of applying for citizenship and recently a language test has been introduced.

Naturalization by residency: legal residents of Italy may be able to acquire citizenship. Procedure and time vary depending on a number of factors, such as their nationality, the length of time they have legally resided in Italy, their birthplace and the nationality of their parents and grandparents. The application can be filed: after 1 year of residency, for those who have held Italian citizenship at some point in the past; after 3 years of residency, for those who were born in Italy or who have parents/grandparents that are Italian citizens; after 4 years of residency, for European Union (EU) citizens; after 10 years of residency, for NON-EU citizens.

WHAT IF MY ANCESTORS LOST THEIR ITALIAN CITIZENSHIP?

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There are often situations where an Italian citizen moved to USA and naturalized as US citizen before having children. This (i.e. the acquisition of a second citizenship) caused the interruption of the Italian lineage by blood. Citizenship was not therefore automatically transferred to his descendants.

However, do not lose any hope. Italian Law is quite benevolent with anyone who can prove to have an Italian parent or grandparent! In fact, individuals who fall within this situation are still entitled to acquire Italian citizenship by taking residency in Italy, with a reduced term of 3 years, instead of 10 years, proving to have an Italian minimum income and pass a language test.

Be aware of frauds and of people who says that you can do it quickly and you need to stay in Italy only few weeks!

The procedure requires the applicant to have an accommodation in Italy (it can be a rented apartment/room) and register with the local City Hall. But is not enough to declare the intention of residing in a particular place: residency is a serious matter in Italy and is based on objective grounds, i.e. the place must become the person’s main centre of interests. Moving residency to Italy brings also some tax consequences which must be carefully evaluated.

Photo by Chiara Polo on Unsplash

The information provided on this article (i) does not, and is not intended to, constitute legal advice; (ii) are for general informational purposes only and may not constitute the most up-to-date legal or other information (iii) this website contains links to other third-party websites. Such links are only for the convenience of the reader; (iv) readers should contact their attorney to obtain advice with respect to any particular legal matter.


Marco Mazzeschi

Attorney at law. One of the leading corporate immigration lawyers in Italy. Admitted to the Milan Bar Association (1988) and to the Taipei Bar Association (2016), a member of the American Immigration Lawyers Association (AILA) and an accredited partner of Invest in Tuscany.

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