Descend “iure sanguinis”

 01.05.2021

PART 2

We are once again dealing with the transmission of Italian citizenship precisely because of the interest it has aroused among readers.

We have already said how the conditions required for recognition by descent (iure sanguinis) are essentially based on the one hand on the demonstration of the ancestry of the original Italian emigrant and, on the other hand, on the proof of the absence of interruptions between the descendants in the transmission of citizenship. [1].

Naturalizations are often recorded due to an ancestor having participated in military service in America.

At various times in history, the United States government has in fact used citizenship as a tool for military recruitment to the U.S. Armed Forces making major exceptions to normal naturalization rules for foreigners who have served the United States.

Military service did not automatically grant citizenship as immigrants still had to actively renounce their loyalty to other countries, but certainly the naturalization process would seem to have undergone a simplified process. (1)

If citizenship has been interrupted with respect to male ancestors due to naturalization, the way to go could be through the mother. But even here we see how the status of the wife was dependent on that of the husband, so much so that “derived” citizenships were automatically granted. In fact, the documents include the wording “by marriage” precisely because after 1907 the citizenship of the spouse was the only factor that decided their nationalities. (Derivative Citizenship) (2)

In fact, the U.S. Supreme Court confirmed the Expatriation Act of March 2, 1907, highlighting how the identity of husband and wife was an ancient jurisprudential principle.

In such situations, therefore, the possibility for the descendant in question to apply for Italian citizenship would seem to disappear, resulting in an interruption of the Italian citizenship link on both the paternal and maternal sides towards their descendants.

Indeed, more careful observations are needed. The first study must address the time in which this naturalization took place.

Therefore, if an ancestor lost his citizenship in 1913 by naturalization, just like his wife “by marriage”, his daughter could apply for Italian citizenship if, for example, she was born in 1912, ie before her father lost it.

“Angela”, as we will call the daughter of our ancestors, would be able to apply for citizenship through her mother even if she was born in America, for example in 1931, as well as in the event that she lost her Italian citizenship due to the latter having subsequently been married with an American citizen.

This option exists as a result of the jurisprudential elaboration subsequent the Italian Constitution of 1948 taking effect. [2] [3]

Therefore, by virtue of the sentence of the Sezioni Unite della Cassazione, n. 4466 of 25.2.2009 (5) and even before the sentences of the Constitutional Court n. 87 of 1975 and no. 30 of 1983, the judicial recognition of Italian citizenship is also possible for women who have lost it subsequent to art. 10 of the law n. 555 of 1912, for having married a foreign citizen before 1 January 1948. [7].

All descendants of an Italian mother born before January 1, 1948, will therefore be able to obtain recognition of citizenship by resorting to the Civil Court of Rome since the court of state administration has been established by law in Rome. [8] [9] [10]

Otherwise, if the interested party wishes to settle in Italy and have Italian citizenship recognized there, then he or she will have to contact the judge of the place where he has established his residence in Italy.

The continuity of the lineage must be proved in court through translated and apostilled documents. [16] Proof to the contrary, and therefore the lack of continuity, weighs on the Administration which will be able to demonstrate it more easily than the private sector through access to its archives. [4]

The readings to Law 151/75 and to the ruling of the Constitutional Court n. 87/75 regarding the listed process, are long and complex for those who are not legal practitioners. [5] Little could facilitate the reading of the Ministry’s Circulars, and in particular that no. K.60.1 / 5 of 8.1.2001 [6]

In practice, of course, in order to facilitate the judge, the appeal is to be completed with all the documentation useful to prove the ancestry as well as the absence of interruptions.

And therefore we will be able to attach both the declarations of intent (so-called “First papers”), and the Petition for naturalization (so-called “Final Papers”) and, therefore, the Certificate of naturalization and the oath of fidelity.

All these documents prove the naturalization process which consists precisely of three phases: the declaration of Intention, in which the renunciation of loyalty to foreign governments is proved and proof of having resided in America long enough to apply for citizenship; the Petition for naturalization, i.e. the formal application for legal citizenship required two to three years after having submitted the declaration of intent; the Certificate of Naturalization or Citizenship, which is the Document that grants US citizenship, with an oath of Fidelity to the United States. (4)

In any case, an administrative completion will be required through an explicit declaration of the will of the interested party. [12] [13] For administrative purposes, in fact, to acquire citizenship pursuant to paragraph 1-bis of Article 1 of Law 5 February 1992, no. 91, interested parties must submit a declaration to this effect to the competent Consular Authority [14] correlating it with all the documentation required by the Minister of the Interior in agreement with the Minister of Foreign Affairs and International Cooperation. [15] Obviously we will also attach the sentence given by the Court of Rome.

One final note: under the Circ. Min. N. 397 of May 15, 2008, individuals with dual citizenship will keep the surname indicated on the birth certificate issued by the foreign authority.

Tag: BIRTHRIGHT

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ADDITIONAL INFORMATION

[1] That is: to demonstrate that one’s ancestor was not naturalized in the foreign country before the birth of the child, or that there are no declarations of renunciation of Italian citizenship by further descendants before the birth of the next generation.

[2] Constitutional Court n. 30 of 1983 – Constitutional Court n. 87 of 1975

[3] New rules on Italian citizenship: – The child of a father or mother who is a citizen is a citizen by birth.

On the other hand, the previous law 555/1912, in art. 7, allowed, the child of an Italian born in a foreign country who had given him his citizenship according to the principle of ius soli, to retain the Italian citizenship acquired at birth, even if the parent incurred in the loss of citizenship as a minor, thus recognizing the relevant right to the interested party to renounce it upon reaching the age of majority, if resident abroad.

Art. 1 of law no. 555 of 1912, therefore confirmed the principle of recognition of Italian citizenship by paternal derivation to the citizen’s child regardless of place of birth, which in art. 7 was intended to ensure the maintenance of the link with the country of origin of the parent to the emigrant children, introducing an important exception to the principle of the uniqueness of citizenship.

[4] [with declaration pursuant to art. 143 ter CC] The burden of proof on this point, as specified by the law, is on the administration (see Civil Cassation Section Un. Sentence no. 4466 of 25/02/2009 in motivation “… This recognition cannot be denied even in the event of the death of the appellant’s parents, unless there has been, by them, the renouncement of citizenship always permitted by the laws that followed over time (Law no.555 of 1912, art.8 and Law no.92 of 1991, art . 11), renunciation of which must be shown here by anyone who opposes the recognition of the law.… “; Also Civil Cassation Section 1, Ordinance no. 3175 of 11/2/2010).

[5] We recall that in January 1983, sentence no. 30 of the Constitutional Court, in consideration of legal equality between the sexes, recognized women the right to transmit citizenship to their offspring.

[6] which confirmed the retroactivity to 1.1.1948 of the effects of sentence no. 87/1975 of the Constitutional Court, in the event that the husband, an Italian citizen, had lost this citizenship due to having acquired a foreign one, the wife retained her Italian citizenship even if she had automatically acquired her husband’s new citizenship (the case in question had been up to then governed by paragraph 1 of art.11 of law 555/1912, which sanctioned the loss of citizenship for women). Therefore, Gragnani Giulia did not lose her Italian citizenship.

See also Circular of the Ministry of the Interior K 28.1 of 8 April 1991 – Recognition of the possession of the Italian status civitatis to foreign citizens of Italian descent; as well as Circular of the Ministry of the Interior K 31.9 of 27.5.1991 – Rules on citizenship – Interpretation and application guidelines.

[7] (“the ownership of citizenship must be recognized in court, regardless of the declaration made by the interested party pursuant to art. 219 of law no. 151 of 1975, to the woman who lost it in order to be married to a foreign citizen before January 1, 1948, since the loss without the will of the holder of citizenship is the continuing effect, after the indicated date, of the unconstitutional provision, an effect that contrasts with the principle of gender equality and legal and moral equality of the spouses ( articles 3 and 29 of the Constitution) “

With the sentence in question, the Supreme Court also implemented the principles contained in the New York Convention of 18 December 1979, for the elimination of all forms of discrimination against women, and according to which women are entitled to “equal rights to those of men in matters of acquisition, change and conservation of citizenship”.

[8] in accordance with the Court of Rome, sent. n. 5762/2017 publ. on 22.03.2017; Court of Rome, sent. 8102/2016 publ. on 21.04.2016).

[9] Even before this, art. 219 of law 151/1975, established:

A woman who, as a result of marriage with a foreigner or a change of citizenship by her husband, has lost her Italian citizenship before the entry into force of this law, reacquires it with a declaration made to the local authority pursuant to article 36 of the implementing provisions of the civil code.

All provisions of the law of 13 June 1912, n. 555, which is incompatible with the provisions of this law.

[10] see also: opinion of the Council of State no. 199/97 of 5.3.97

In Italy, “Angela” was an Italian citizen by birth (jure sanguinis), as well as an American citizen (jure soli – with the entry into force of the 14th Amendment to the Constitution on 9 July 1868, American citizenship is recognized for those born in the United States).

[11] The Italian Consulates, in fact, refuse to recognize maternal transmission to those born before 1948 and the only possibility in this case is to proceed with a legal case before the Court of Rome. This procedure hinges on an application for ascertaining the status of Italian citizenship, iure sanguinis by maternal descent, pursuant to and for the purposes of art. 1, paragraph 1, lett. a), law n. 91/1992.

[12] with regard to the provisions of article 219 of the law of 19 May 1975, no. 151, expressly referred to in Article 17 of Law no. 91

[13] The request, from an administrative point of view, must be presented to the Italian Consular Authority responsible for the territory as well as the request for the transcription of the civil status documents concerning residents abroad who have seen their descendants recognized by an Italian court in maternal line prior to 1948.

[14] Starting from 16.08.1992, Italian citizens who acquire a foreign citizenship do not lose their Italian citizenship. Before that date, the loss was automatic.

As of 1 August 2015, subjects residing abroad must submit the application for the acquisition of Italian citizenship electronically according to the new procedure established by the Ministry of the Interior.

The applicant must register and submit the application on the dedicated portal, called ALI, at the following url [https://cittadinanza.dlci.interno.it] (https://cittadinanza.dlci.interno.it/)

[15] Documents

– civil status documents formed abroad relating to all family members starting from the initial Italian ancestor up to the applicant, legalized according to international conventions ratified in Italy and provided with an official translation into the Italian language.

– declaration by foreign authorities indicating if and when the ancestor purchased the foreign citizenship, having been legalized and translated

– The declaration of the Italian Consular Authority in the applicant’s country of origin must also be acquired, showing that none of the descendants from the applicant’s ancestor has ever renounced Italian citizenship

Due to the expected timeframe for the procedure, certainly exceeding three months of the tourist visa, a Residence Permit is required.

For each descendant born abroad, the Civil Status Office will acquire, from the Italian Consular Authority in the foreign state certification that the person in question has never renounced Italian citizenship.

Circ. Min. n. 397 of May 15, 2008: subjects with dual citizenship keep the surname indicated on the birth certificate issued by the foreign authority, while maintaining their right to the same to request, as Italian citizens, the reassignment of the surname according to Italian law (paternal surname).

[16] Italy and the United States are both members of the Hague Convention of 5 December 1961 on the abolition of “legalization” with regards to foreign public documents: for documents and certifications, the usual form of legalization is replaced by the so-called “apostille”. The apostille is therefore a simplified form of “the Apostille” (square stamp) certifying the authenticity of the document and the legal quality of the issuing authority.

Documents exempt from legalization or, on which the Apostille has been affixed, can also be translated abroad by an official translator, recognized by the country of origin or in Italy with a sworn translation.

In the case of the United States, the seal is issued by the Secretary of State of the state where the document is issued.

With regard to apostille on documents issued by Federal Authorities, (eg criminal certificates issued by the FBI), another office is responsible (eg in Washington: Office of Authentications, U.S. Department of State).

FURTHER READING (AFTER PUBLISHING)

(1) https://libguides.mnhs.org/naturalization/s4

(2) Derivative Citizenship

(3) We also recall that the law of March 3, 1931 (46 Statutes at Large 1511), eliminating the loss of citizenship by a US citizen woman solely due to marriage to an alien husband.

English

(5) see also sentence 15062/00 which was established that as a result of the constitutional passages, from the ratification of the 1948 Constitution, the ownership of Italian citizenship was also recognized to women who had lost it by contracting marriage with a foreigner , as well as the offspring who had not bought it back because they were born before 1948.

(4) https://www.familysearch.org/wiki/en/United_States_Naturalization_and_Citizenship