Citizenship – Remedies against Consulates’ delays

Jan 31, 2020

The Court of Rome[i] granted Italian citizenship to Brazilian applicants (descendants of an Italian citizen) who filed an action against the Consulate for unreasonable delay in obtaining an appointment to file the citizenship application (it took more than 2 years). The Court declared that the Consulate’s failure to process the application within a reasonable timeframe violated the applicant’s rights.

The acquisition of the Italian citizenship.

In general, Italian citizenship is based upon the principle of “jure sanguinis” (bloodline).

So who can be considered a citizen through bloodline?
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 ancestor born in Italy may be eligible for citizenship, depending on a number of factors such as date and place of birth of their parents, grandparents, and even great grandparents. Descendants of Italians who might be interested in applying for Italian citizenship must check their family tree to understand whether they could be eligible for Italian citizenship by maternal or paternal descent.

Recognition of Italian citizenship through maternal descent.

Before January 1 1948, citizenship by bloodline, could only be acquired through paternal descent, after this date, the Italian Constitution introduced equal rights.  

How can descendants of an Italian woman born before 1948 obtain citizenship?
The Italian Supreme Court[ii] recognized the right of Italian citizenship also for children of an Italian woman born before 1948 by judicial means: therefore, the interested parties need to apply to the Judicial Court instead of the civil state officer. Thus, the Supreme Court confirmed the procedural limits for the recognition of citizenship in administrative terms on 1 January 1948.

The application for recognition of citizenship by paternal line.

While descendants of Italian ancestors who apply for maternal citizenship in case of a child born of an Italian mother before 1st of January 1948 have no other way except to take legal action, those who intend to apply for the recognition of the Italian status civitatis iure sanguinis for male line of descent have the possibility of submitting an administrative request.

Can a descendant of an Italian ancestor act legally for paternal lineage?
In this case there is no legal interest to act (in sense of use or advantage that cannot be obtained without intervention of a Judge). Hence the argument that it would be excluded for lack of interest to act for recognition of Italian citizenship iure sanguinis requested by descendants of Italian ancestors for paternal line of descent. The judiciary cannot take charge of defaults by Italian Consulates and therefore, the Ministry of Foreign Affairs. In general, if the needs can be satisfied and obtained by administrative ways, then the applicants have no interest in taking legal action as there is no controversy, the right in obtaining Italian citizenship is not opposed or denied and intervention by a judge is not needed. Said that, with reference to case law dating from 2014[iii], where the request submitted by descendants for paternal line was accepted, the orientation of the judges settled on the possibility.

Deadlines and issues of administrative proceedings.

According to Law[iv], the procedures relating to the State Administrations must be concluded within established terms and in accordance with the principle of reasonable delay of proceedings. D.P.C.M. 17.01.2014 n. 33 provides that the administration must handle the citizenship application and decide on it within the term of 730 days.

What happens when the term is over due to Consulate delays?
Is there another way to obtain the citizenship faster? First, the end of the term often does not depend on the applicants themselves, but on the lack of responsiveness from the consular authority in the country of residence, resulting from the excessive number of requests to be reviewed by the same authority and long waiting lists. The descendants of Italian ancestors by paternal line, in countries such as Brazil where the number of applications for Italian citizenship is very high, are increasingly with  “sonho de passaporte italiano” through judicial action, as in the case covered by judgment n. 17658/2019, complaining of the long waiting list of Italian consulates where applicants wait as long as 10-15 years to obtain the “dupla cidadania”.

How to avoid delays when filing applications at the Consulate.

The rule above is subject to even more frequent exceptions thanks to case law, due to many consulates, such as Brazil, where applications take a very long time to be processed. As a result, many people prefer just to leave it and let it go as they are put off by the long wait and high costs of obtaining the necessary documents.

What’s the solution?
In this situation, legal action can be used due delays of some embassies (in the specific case the Brazilian one). Here it is important to note the Court of Rome[v] orders where the judges recognized Italian citizenship of descendants born in Brazil of Italian citizens who have never renounced their Italian citizenship and have never naturalized as Brazilian citizens.

The 2019 decision of the Court of Rome.

The Court allowed the use of the judicial procedure to assess the right to Italian citizenship through iure sanguinis in the event of serious delays of the Italian Consular Authority in Brazil, where applicants applied many years ago. The Court stated that the Administration is required to comply with the deadline set by art.3 of the Presidential Decree n. 362/1994 and also that the uncertainty of the request for recognition of citizenship and the passing of an unreasonable period of time corresponds to a refusal and justifies use of judicial protection.

More specifically, the Court of Rome reaffirmed as per previous orders, and accepted the claim made by applicants declaring that they must be recognized as Italian citizens from birth and ordered the Ministry to  take the necessary measures such as entries, transcripts and legal records about the claimants’ Italian citizenship in the vital record registry. The judicial panel awarded the claimants also the reimbursement of the legal fees incurred.

[i] judgment n. 17658 18.09.2019
[ii] Judgement no. 4466 of 25.2.2009
[iii] Court of Rome, 5December 2014
[iv] art. 2 of the law n. 24 of 07.08.1990
[v]  n. 58581/2017 and n.75639/2017

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