NEW CASE-LAW DEVELOPMENTS ON ITALIAN CITIZENSHIP BY DESCENT

It is well known that, until 1992, Italy did not allow dual citizenship, and the law then in force, L. 555/1912, stipulated that those Italian citizens who emigrated abroad automatically lost their Italian citizenship the moment they obtained their new foreign citizenship.

The aforementioned law also contained two rules referring to the descendants of emigrants: starting from the fact that Italian citizenship was transmitted (and still is transmitted) iure sanguinis, the children of foreign emigrants were born Italian, even if they were born abroad and obtained the citizenship of the state of birth iure soli.

But while Art. 7 of L. 555/1912 confirmed this principle, in that it provided that Italian citizens born and residing abroad, considered citizens of that country iure soli, retained Italian citizenship unless they decided to renounce it once they were adults or emancipated, Art. 12 of that same law provided that children automatically followed the citizenship status of their parents, consequently losing Italian citizenship if the father (or in special cases, the mother) became naturalized.

Moreover, it is important to note that the aforementioned norms have often been used even in those cases where naturalization had occurred even before 1912, i.e., during the force of the Civil Code of 1865 (which did not have an explicit provision such as Art. 7, while it had a provision, Art. 11, that was directly transposable into Art. 12 l. 555/1912), as they are understood by today's cas-law as norms of authentic interpretation of the older legislation.

The contrast between these two norms has over time required the intervention of Italian jurisprudence, which, until recently, has in most cases resolved it by applying the more favorable Article 7 of l. 555/1912 in those cases where the minor ancestor already had the citizenship of the state of birth ius soli, despite the naturalization of the parent. In case the minor had no other citizenship acquired at birth, then Article 12 applied, and consequently the line of descent was interrupted.

With Civil Cassation Orders No. 17161 of 06/15/2023 and No. 454 of 08/01/2024, however, a decisive departure from the previous, established case law was implemented in favor of a generalized application of Article 12 where the minor nevertheless already had a citizenship recognized iure soli.

Indeed, it is the view of the Supreme Court in these two orders that Article 12 should be applied insofar as the conditions are met, by virtue of the principle of family unity even from the point of view of citizenship, recognizing in that article the legislature's intention to protect the unity of "family citizenship."          

This reasoning is supported, according to the Court, by the fact that the minor, together with the parent, would acquire the citizenship of the parent's state of naturalization, even if he or she already possessed it iure soli.

What next?

In general, anyone who wants to apply for recognition of his or her status as a iure sanguinis citizen, if he or she has a relative in his or her family tree who naturalized with the descendant who is still a minor, should carefully consider whether to proceed with the application as he or she would have done not more than a year ago, but rather carefully evaluate and research his or her family tree so as to avoid this issue, or even better to find a female ancestor born before 1948, so as to open the door to judicial recognition by virtue of the 2009 Constitutional Court ruling on the transmission of citizenship from the female branch with an ancestor born before 1948.

In any case, it is important to be aware of the fact that the principle of jurisprudential precedent does not apply in Italy, despite the influence that precedent can have, and that although these two ordinances follow each other just over 6 months apart, this does not mean that there has in fact been a net change in interpretation by Italian jurisprudence, as there are far more of the however recent ordinances and rulings of the Court of Cassation that have instead recognized the status civitatis to those who had in their line of descent a minor whose parent has naturalized.

All that remains is to watch and see how the Italian Courts move in the coming period and, in the meantime, be ready to probe alternative avenues, should they be available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances