Citizenship in Europe is often Granted to those with “Proper” Ancestry. This memo on Italian Citizenship is Typical of many European Countries.
By: Marco Montanarini, Italian Lawyer.
This valuable article forwarded without charge to clients and readers of Grandpa’s Books
DISCLAIMER:
The author of this article tried hard to be up to date and correct, however, this article cannot be considered as legal advice and does not substitute legal advice from a trusted lawyer. It cannot be used or intended as a substitute for official information supplied by the Italian Foreign Ministry or the Italian diplomatic service, and the author disclaims any responsibility for the appropriateness, legality, accuracy, and completeness of the information contained in this article.
Introduction:
Italian Citizenship is based on the doctrine of ius sanguinis, thus, as a rule, the descendants of Italian citizens are considered Italian citizens.
Italian Citizenship is granted generally on the fact of being born from Italian citizens, just because the law is deeply rooted in the juridical principle of ius sanguinis.
So that, the son whose parents are Italian citizens, is also an Italian citizen.
Italian Citizenship can be acquired outside the principle of birth, but only on a limited number of circumstances.
It can be acquired because of birth within the territory of Italy, if the Citizenship Law allows it (see below).
It can be acquired because of marriage with an Italian citizen.
It can be acquired because of adoption by an Italian Citizen.
It can be acquired after a period of residence in Italy as provided by the Law.
It can be acquired because granted by special legislation, such possibility is very limited and virtually unavailable by now. It mainly includes ethnic Italians living in bordering areas involved in border changes or living in neighboring States.
As it can be acquired, Italian Citizenship can also be lost, in the following instances:
– Because of renunciation, only if the renouncing person has a second citizenship;
– Because of the failure to comply the order to leave a civil or military service of another State.
– Because of gross misconduct of an adopted son/daughter towards his/her adoptive parents (generally theft, fraud or murder and attempted murder).
Since the second instance happens very rarely (generally in case of war) and can be staved off by simply complying with the order, it is evident that, unless You want to, You will likely never be in a position to lose Italian Citizenship.
The same applies to the third instance, sane persons don’t incur in gross misbehavior against their adoptive parents.
Italian Citizenship was regulated till 1992 by the Citizenship Law (Law n. 555 from 13th June 1912), until its replacement by a new Citizenship Law: Law n. 91 from 5th February 1992. Thus thereafter the two Laws will be identified as the New Citizenship Law, and the Old Citizenship Law.
The New Law mainly mirrors the Old Law, but with some important differences highlighted in the course of the article.
Who is an Italian citizen by birth:
As said above, article 1 of the New Law states that it is an Italian citizen the son whose father or mother is an Italian citizen.
The article mirrors the older statement of the Old Law but for an important difference: it does not make any difference if the parent is man or woman.
The Old Law stated that, whenever an Italian woman married a foreign citizen, she took automatically the citizenship of his husband, while her son took automatically the citizenship of his/her father [1].
The principal changed when the Constitutional Court, in the 9th of February 1983 (Corte Costituzionale n. 30/1983), declared constitutionally unlawful article 1 of the Old Law in the part where it did not allow the son of an Italian mother, married to a foreigner, to be an Italian citizen.
The possibility for the son of an Italian mother to be an Italian citizen was soon confirmed in a number of judiciary decisions, and from 1992 was firmly stated and regulated in the New Law.
However what is most interesting here is how the new text was interpreted by the Judiciary.
The first interpretation from the Supreme Court (Corte di Cassazione) was that, since the Italian Constitution was promulgated on the 1st January 1948, the decision from the Constitutional Court made the Old Law partly void from 1st January 1948 onwards.
Thus only sons born from Italian mothers married to foreign citizens after 1st January 1948 could apply for Italian citizenship, in case they had only the citizenship of the father.
Such interpretation was confirmed by a number of judgments from the Supreme Court (for example Cassazione, sezioni Unite[2], 27 novembre 1998 n. 12061) who regularly denied the possibility for sons born from an Italian mother married before 1st January 1948 to apply for Italian citizenship.
But some judges argued that, if the declaration had rendered part of the Old Law void, it should have been void in any case, not only since 1st January 1948, because the declaration from the Constitutional Court touched rights which could not be expropriated or limited.
While such reasoning was harshly contested, as before 1st January 1948 the Italian Constitution did not exist [3] and it was thought impossible to enforce retroactively a judgment based on a law which did not exist at the time, evidently the Supreme Court changed its mind because with another decision taken in 2009 (Cassazione, sezioni Unite [4], 2009 n. 4466) it completely upturned its precedent decisions and stated that it is an Italian citizen the son of an Italian mother regardless of the fact that she married or he was born before or after 1st January 1948.
So it is an Italian citizen the son of an Italian mother or father who has not explicitly renounced its citizenship, this means that descendants of third, fourth or fifth generation (or even more) from Italian citizens can apply and qualify for citizenship (This passage is very important if You are the descendant of an Italian citizen).
The effect of the last judgment (Cassazione, sezioni Unite, 2009 n. 4466) can be especially useful in case of Italian expatriates or émigrés whose descendants can still, if they want to, apply and likely qualify for Italian citizenship.
Such judiciary decision has been criticized on several points, in particular on the fact that it would allow the possibility to acquire citizenship to people who are “Italians in name only or not even in name” and do not share anymore any common language, culture, uses and habits with the real Italian citizens of our days.
However, the judgment rendered by the Supreme Courts stays, at least at the time of the last judgment from the same Court on the same demand of recognition of citizenship (n. 7127 of the 29th March 2011), and lesser Courts are still following the same judicial precedent.
Beware, the Italian Foreign Ministry and Italian Consular Offices still consider valid the term of 1st January 1948 and deny the possibility to acquire Italian citizenship for descendants of Italian mothers only born before the date.
You can see such attitude in the official application for recognition of Italian Citizenship issued by the Italian Consulate in Chicago.
This means that a recognition of citizenship asked on the basis of having an Italian woman as ancestor could be rejected, or perhaps, diplomatic offices simply took the less burdensome option to simply avoid to make this possibility known.
The opinion of the author finds a suggestive confirm in the fact that the website of the Foreign Ministry at a certain time in 2009 inserted in the Citizenship’s FAQ page a question about descendant from an Italian grandmother. The question was without an answer and was subsequently deleted, while the question about descendant from an Italian grandfather stays and is rightly answered: “yes you can ask for recognition of citizenship”.
In any case, decisions to reject the recognition of Italian citizenship to descendants of Italian women born before 1st January 1948 appear to be regularly overthrown in Courts, with a string of Supreme Court judgments adhering to the judgment of Corte di Casszione Sezioni Unite 4466/2009 with 4467/2009, 18089/2009, 9275/2010, 7127/2011 mirroring the original decision. Tribunals and Courts of Appeal (second grade) by a large majority do follow the precedents.
It is not granted that Supreme Court would not return to the issue and, perhaps, alter its former ruling or even take an entirely different approach to the matter, so if anyone thinks he could qualify for Italian citizenship as direct descendant of an Italian parent and would apply, it should be better for him/her to act as soon as possible.
The reader may ask why I mentioned only the case of a son from married parents where the mother was an Italian citizen, what about the son of an unmarried mother who was an Italian citizen ?
In such a case, the son was an Italian citizen, so there was no problem at all in qualifying for Italian citizenship by ancestry, unless… the son was legitimized/recognized by the father and was able to acquire the citizenship of his father lawfully. But such a case does not differ from the case of the son from a married woman.
Italian citizenship is also granted because of adoption from Italian citizens.
There are only a few cases when citizenship is not granted by birth from Italian parents:
It is acquired by birth in the territory of the Italian State if both parents are unknown or stateless persons.
It is acquired by birth in the territory of the Italian State if the law of the State to which the parents belong does not grant citizenship to the sons born outside the State.
It is acquired by children found in the territory of the Italian State, if the parents are unknown or other citizenship cannot be identified.
These are the only cases which don’t follow the principle of ius sanguinis, but that of ius soli instead.
Italian citizenship can also be acquired by naturalization.
Who is an Italian citizen by naturalization:
Naturalization can be granted to:
– Persons residing for at least 10 years inside the Italian State, without a criminal record and able to maintain themselves (ie they must have a job or whatever activity able to grant them an independent living).
– Persons working and in service for the State for at least 5 years, at Home or abroad.
In several cases, naturalization can be granted after a shorter term, when the applicant meets particular criteria.
Naturalization can be granted:
– To the foreign citizen, the descendant of an Italian parent or grandparent, who enlists with the Italian Army and declares, before or at the moment he/she enlists to be willing to acquire the Italian citizenship [5];
– To the foreign citizen, the descendant of an Italian parent or grandparent, who becomes a civil servant or works for the Italian state at home and abroad and declares, the moment he/she is hired to be willing to acquire the Italian citizenship;
– To the foreign citizen, the descendant of an Italian parent or grandparent, who resides legally in Italy for two years before becoming of age (18 years in Italy), if he/she declares before a year is passed after he comes of age, to be willing to acquire the Italian citizenship
– To the foreign citizen born in Italy and legally resident in Italy without interruptions till he/she comes of ae, if he/she declares before a year is passed after he/she comes of age, to be willing to acquire the Italian citizenship
– To the spouse of an Italian citizen after two years if he/she resides in Italy, or after three years if he/she resides abroad. If the spouses do have sons or adopt sons, the period is reduced by half (one year/one year and six months) [6].
In particular cases, the period of residency in Italy can be shorter than 10 years and can be reduced up to:
– Three years of residency if the resident is descendant of an Italian parent or grandparent;
– Four years of residency if the resident is a citizen from an EU member State;
– Five years of residency if the resident is a stateless person, or a refugee or is a person of age adopted by Italian citizens;
– There is no need of residence for people working abroad for the Italian State for at least five years.
How to obtain Italian citizenship:
If You are a direct descendant of an Italian Citizen and You want to be again an Italian citizen You must apply for a procedure called informally “recognition of citizenship”.
Such procedure must demonstrate that the ancestor from which You descend:
– was an Italian citizen when he/she left Italy;
– never lost Italian citizenship (see above what Cassazione, sezioni Unite [7], 2009 n. 4466 says if the ascendant was a woman);
– You are his direct descendant;
– documents stating that You speak Italian and You share Italian culture and values
With the necessary documents, You could request the “recognition of citizenship” at the competent Consular Office where You reside, or, if You are yet residing in Italy, to the City Council where You are living.
You will surely need a copy of the certificate of birth of Your ascendant, and then every certificate of birth or equivalent official document which demonstrate You are a direct descendant of an Italian citizen.
It is important to ask for information at the consulate before starting your search in order to know exactly which documents You require.
Remember that article 17 ter explicitly require:
– certificate of residency in Italy of Your ancestor before he left [8];
– certificate of birth of Your ancestor;
– all subsequent certificate of births proving You are a direct descendant of Your ancestor;
If all the documents required are in order, and Italian citizenship is recognized, the applicant must take an oath of allegiance to the Italian Republic, its Constitution and its Laws.
Remember You are now not subject anymore to compulsory military service if You opt to have Your Italian citizenship recognized.
If You want to acquire Italian citizenship because of naturalization, based on the requisites listed above, You should ask for it through a justified request to be sent to the Mayor of the Council where You reside or to the Consular Office, if You live abroad.
The request MUST have any necessary document in order to prove that You fall into one of the cases allowing naturalization.
So that, if You reside in Italy for more than 10 years You must prove it by showing a certificate of residence from the Council where You are registered as resident.
The period of 10 years is counted from the day You effectively register as a resident, not from the day you entered Italy, so, please check carefully if the time required is effectively expired or not !
Any request for naturalization will be rejected if:
– Your criminal record is not a clean one and You have been convicted;
– You have been sentenced to jail for at least three years, or for at least one year if the sentence has been recognized in Italy and the crime is not a political one.
– You are deemed as a risk for the safety of the Country.
In any case, it is important to remember that, complying with the conditions for naturalization is only a first step, a necessary starting point that allows You to ask for citizenship but does not grant acceptance of Your request.
The authorities in charge would not merely check if You fall in one of the categories for naturalization but would also see if You are really well integrated with the Italian environment, culture, and way of life, if You accept our values and rules if Your moral conduct is good.
This should not deter You from asking for citizenship, honest persons have nothing to fear from such scrutiny.
After all, what the officials in charge want to see is simply that You are not a troublemaker and are not involved in bad associations with the local criminal world.
As I think any reader would be a decent person and stay out of trouble, the scrutiny involved in the process would do nothing to harm him.
Moreover, naturalization will be granted only if the applicant will be able to demonstrate:
– full acceptance of Italian culture, values, way of life;
– a feeling of being Italian which excludes any selfish motive in asking for citizenship;
– proof of a constant process of cultural and social integration;
– proof of income able to sustain the applicant so that he/she is not a burden for the social assistance, the proof that the income declared to Italian tax authorities increased over the years is welcome as a further proof of integration in the Country;
The need of a good understating of the language and a good integration on the cultural level are well exemplified in Mr. Frank Abigail statements in “The second passport report” (Global Liberty Publishing Diamond BWI 2009 p. 179).
What Frank Abigail tells the reader on this matter is still true and his experience with the Italian Authorities in charge to verify his proceedings are a recommended reading. But I would not advise to follow his example and have the answers to the Police suggested by Your lawyer. Not all policemen are bored or in haste or willing to close two eyes on Your language skills and the discovery that You don’t really understand what You are told could lead You into trouble.
It is important You are able, even with a bit of help from Your lawyer, to understand what is told You at the offices and to converse in Italian, this is not such a burden that cannot be overtaken in two years of residency.
Completely fluent Italian generally is not necessary, the officials will likely forgive you if Your grammar is not perfect and if You make errors, but it is necessary to be able to speak and understand Italian.
Civil servants working on naturalization sometime find out person living in Italy for ten years and unable to speak more than three or four Italian words. Such situation cannot be considered pleasant and is very likely to lead to a rejection of a naturalization’s request. After all, if you want to become Italian, You should be able to communicate with your fellow countrymen!
Bibliography
Commandatore – Virgilio “Code of Immigration, right of asylum and citizenship Law” Rome 2010
Law n. 91 5th February 1992
Italian Supreme Court (Corte di Cassazione) judgments 4466/2009 with 4467/2009, 18089/2009, 9275/2010, 7127/2011.
Marco Montanarini
Lawyer in Bologna
[1] This discrimination was based on the consideration that the husband was the head and the support of the family (the wife generally was not working or was not able to sustain the family by herself, or so it was generally believed, exceptions were considered, of course, exceptions), thus, the family was based where the husband was living and citizenship followed, as a rule, the citizenship of the father.
[2] Sezioni Unite, literally United Sections, shows that the sentence was adopted by all the Juries of the Supreme Court and is liable to act as a precedent for future judgments)
[3] For those interested in history, the fundamental Law of the Italian State was the Statute of the Kingdom of Italy, whose scope was much less extensive than that of the Italian Constitution.
[4] Sezioni Unite, literally United Sections, shows that the sentence was adopted by all the Juries of the Supreme Court and is liable to act as a precedent for future judgments)
[5] Such a way was altogether not recommendable when military service was compulsory and, special corps excepted, regular Italian Army units got a lot of drug addicted, petty criminals or desperate people unable to find a way to circumvent the rules (of which there were so many, including the possibility to enlist on the Police forces as a much better alternative, or to choice elite units, or volunteer for an equivalent period to the social services). The elimination of compulsory military service had the effect to convert all Italian Army to elite or almost elite units, and enlisting could be a viable alternative for those who are young, with good health, and willing to lead for some time a different life. But beware, now several regiments, brigades or detachments are deployed for peacekeeping duties in a lot of troublesome places, like Iraq, Lebanon, Afghanistan and so on, where You could risk Your life.
[6] Spouses must be married and separation or divorce must not intervene before citizenship is granted. Separation means that the spouses don’t intend to live together in the same house or comply with duties associated with marriage.
[7] Sezioni Unite, literally United Sections, shows that the sentence was adopted by all the Juries of the Supreme Court and is liable to act as a precedent for future judgments)
[8] Please remember, in the XIX Century, before the central registration office was formed, births and deaths were registered at the Parish where the person lived. It could be time-consuming to identify the right Parish and make a copy of the registration (I did such a search in order to settle a small inheritance trouble and it took almost a year).
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Client question to Grandpa – 14 Nov. 2014 –
Is it enough to have the name/date of birth for one parent, and not the other?
To present a best case you should have birth-marriage- death certificates; on both mother & father; if Italian citizens
These documents will even have info about all 4 grandparents. Best to have that info too.
It is possible to proceed with documents of only one parent if mother, was or is Italian
Without marriage cert & documents on father, his citizenship does not pass to kids.
But mother alone is a much weaker case that will require much more review & scrutiny,
Thus, not advisable to have only one parent documented if any possibility of getting a proper & complete dossier on both parents is possible.
Post your comments, thoughts, related personal experiences, corrections or questions below.
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