Can you be recognized as an Italian citizen by descent if your ancestor was a minor when his/her parents acquired foreign citizenship?
Two recent decisions by the Court of Cassation are creating turmoil amongst those who could be eligible for Italian citizenship by descent (i.e. they have Italian ancestors). Italy did not allow dual citizenship until 1992. Accordingly, Italian citizens who emigrated and acquired foreign citizenship automatically lost Italian citizenship.
Italian citizenship law 555/1912 (in force before 1992) had two conflicting provisions: (i) art. 12 sets forth that children automatically followed the parents’ citizenship status, consequently losing their Italian citizenship; while (ii) art. 7 set forth that the Italian citizens born and resident abroad, deemed citizens of that country by right of birth, maintained their Italian citizenship unless they decided to give up citizenship once adult or emancipated.
Until now …
Most judges and Italian Consulates abroad applied the most favorable provision of art. 7, thus granting citizenship also in cases where the applicant’s ancestor was a minor when the parents acquired foreign citizenship, but two recent decisions of the Court of Cassation stated for the application of the less favorable article 12 and denied citizenship in a case where the Italian ancestor naturalized during the child’s minor age, regardless place of birth of the minor child.
Despite that, under the Italian legal system Court decisions (also by High Courts) are not binding precedents, we already know that some Italian Judges are now following the same interpretation of the Court of Cassation (applying the more restrictive art. 12, law 555/1912) leading to rejections.
Taking into account these recent developments any future applicant must assess carefully possible options and investigate any alternative route, such as: (i) searching for any female ancestor in the lineage who does not fall within the “minor issue”, therefore getting recognized Italian citizen by filing a Court motion in Italy; (ii) having another Italian family branch without the “minor case”.
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 several 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. But, Italy was unified and became the Kingdom of Italy only on March 17, 1861, with the royal family of Piedmont-Sardinia as the new ruling monarchs of Italy. Accordingly: (i) until 1861 there was no Italian State and it was 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; (ii) 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; (iii) 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).
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. became a citizen) of another country. Naturalization in another country can happen voluntarily, i.e. an individual who willingly accepts 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) serving 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 second citizenship (and therefore lost the Italian one) even without his knowledge or his will.
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, are Italian citizens by birthright. Unfortunately, this judgment did not have any consequences on the Consular behavior and if you fall into the “1948 cases” and submit a request for recognition of Italian citizenship Jure Sanguinis, the 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.
This article was written by Marco Mazzeschi and Giuditta De Ricco
This article is posted by Mazzeschi Web Content Manager. Should you need any further information, please do not hesitate to contact us at info@mazzeschi.it. Follow us on social media @StudioMazzeschi to receive the latest updates.
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