Legal opinion regarding italian citizenship "iure sanguinis"

 

April 4, 2021 The requirements for recognition by descent (ius sanguinis) are based on two conditions: the demonstration of descent from the person originally invested with the status of citizen (the emigrant ancestor, in this case, M. G.) and, on proof of “absence of interruptions in the transmission of citizenship.”[1] 

As a result of the jurisprudence following the adoption of the 1948[2] Constitution, it was declared that all descendants, both male and female, of Italian citizens, even if they were born before the Constitutional Charter went into effect, are themselves Italian citizens. It is therefore necessary to verify first whether at the time of M. M.’s birth, there was or was not a legal requirement of Italian citizenship on the part of the parent G. G., resulting in her having lost it (“by marriage”) through the naturalization of her husband M. G., which took place on May 11, 1913. 

And in fact, even though M.M was born in the USA (January 3, 1931), in Italy she is considered an Italian citizen pursuant to article 1 letter a) of Law num. 91/1992.[3] Furthermore, it does not appear that when she reached the age of majority, M. renounced her Italian Citizenship; the proof to the contrary rests with the Administration.[4] Pursuant to Law 151/75 and according to the ruling of the Constitutional Court n. 87/75, the mother G. G., at the time of M.M’s birth, having not lost her Italian citizenship (even though her husband had, and therefore she, too, had lost citizenship by marriage), had transmitted citizenship iure sanguinis to her children from birth.[5] 

This assumption is confirmed in Circular no. K.60.1 / 5 of 8.1.2001[6] This assumption is confirmed again in Circular no. K.60.1 / 5 of 8.1.2001. For the purposes of the continuity of descent, it is necessary to verify in secundis whether M. M. had lost her Italian citizenship for having married on April 7, 1956 with R. G. S., a foreign citizen. M. M. did not lose her citizenship because the same rules apply to her as to her mother, and in particular, the Supreme Court, with the decision 15062/00, had established that as a result of the constitutional decisions from the time of the adoption of the 1948 Constitution, possessing Italian citizenship was also recognized for women who had lost it by marriage to a foreigner, as well as to the offspring who had not regained it because they were born before 1948. 

In addition, the decision of the United Sections of the Cassation n. 4466 of 25.2.2009, according to which as a result of the decision of the Constitutional Court no. 87 of 1975 and 30 of 1983, Italian citizenship must be recognized in court to any woman who had lost it pursuant to art. 10 of the law n. 555 of 1912, for having married a foreign citizen before January 1, 1948, since the recognition of the status of citizen has a permanent and imprescriptible nature and, therefore, can be carried out at any time.[7] 

And again: “the child of a woman in the situation described, born before such date (and enforced by law no. 555 of 1912), also regains Italian citizenship from 1 January 1948, and this right is transmitted to her children, determining the filial relationship, (after the adoption of the Constitution), the transmission of the “status” of citizen, which would have been due by right in the absence of the discriminatory law “.[8] By virtue of this jurisprudence, and because such jurisprudence concerning her mother G. G. is also valid, M.M. did not lose her citizenship in turn.  

This ruling in fact recognized the “status” of Italian citizens even if they were born before January 1, 1948. M.M. was born in the USA on January 03, 1931.[9] L.’s and E.’s parents, therefore, are an Italian (M. M.) and a foreigner (R. G. S.). The children, L. and E., were born after 1948 and therefore Italian citizens by birth based on sentence no. 30 of 1983 through their mother.[10] 

From the point of view of the judicial assessment, the appeal relating to the assessment of ius sanguinis citizenship, since L. and E. are not residents in Italy, must be filed with the Court of Rome, a section specialized in matters of immigration, international protection and free movement of citizens of the European Union.[11] 

However, there is still a procedural administrative[12] requirement which makes the claim of citizenship subject to an explicit declaration of the will of the person concerned. For administrative purposes, to acquire citizenship pursuant to paragraph 1-bis of Article 1 of Law 5 February 1992, no. 91, L. and E. Espinosa will have to submit a declaration to that effect to the competent Consular Authority.

The declaration must be accompanied by the documentation required by the Minister of the Interior in agreement with the Minister of Foreign Affairs and International Cooperation. The date of the naturalization of the ancestor must be proven by means of a certificate issued by the competent foreign authority. L. and E. will then necessarily have to prove the descent from the Italian ancestor by means of the civil status documents of birth and marriage.

All documents must be in compliance with the legalization and provided with an official translation.

[1] (lack of foreign naturalization of the ancestor before the birth of the child, absence of 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] (on the new rules on Italian citizenship) – which establishes: the son of a father or mother who is a citizen is a citizen by birth. On the other hand, also the previous law 555/1912, in art. 7, allowed, in fact, 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 during his minor age incurred in the loss, thus recognizing the relevant faculty to renounce it upon reaching the age of majority, if resident abroad]. An important exception was introduced to the principle of the uniqueness of citizenship.

[4] [with declaration pursuant to art. 143 ter  c.c.] The burden of proof on this point, as specified by the jurisprudence, 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 ascendants, 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 Italian citizen husband had lost this citizenship, due to having acquired a foreign one, the wife kept the Italian citizenship even if she had automatically acquired the husband’s new citizenship (the case in point was until then governed by the 1st paragraph of art.11 of law 555/1912, which sanctioned the loss of citizenship for women). G. G. therefore did not lose Italian citizenship. See also Circular of the Ministry of the Interior K 28.1 of 8 April 1991 – Recognition of the possession of Italian civitatis status to foreign citizens of Italian origin; 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 to be married to a foreign citizen before 1 January 1948, as the loss without the will of the holder of the citizenship is a lasting effect, after the indicated date, of the unconstitutional law, 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)” 

[8] In accordance with the Court of Rome, sent. n. 5762/2017 publ. on 22.03.2017; Court of Rome, sent. 8102/2016 published on 21.04.2016).[9] Even before art. 219 of law 151/1975, established:The woman who, as a result of marriage to a foreigner or 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 competent Authority pursuant to article 36 of the provisions implementing the civil code.Every rule of the law 13 June 1912, n. 555, which is incompatible with the provisions of this law.Therefore, as a result of the reform on family law and the evolution of jurisprudence, neither M.M. as a result of her marriage, nor even before her mother G.G. lost their Italian citizenship.

[10] [see also: opinion of the Council of State no. 199/97 of 5.3.97]In Italy, M.M. 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 of the Constitution on 9 July 1868, American citizenship is recognized for those born in the United States).

[11] In fact, the Italian Consulates refuse to recognize maternal transmission to those born before 1948 and the only possibility in this case is to proceed through a legal case before the Court of Rome. This procedure is based on an application for the ascertainment of 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] having regard to the provisions of article 219 of law no. 151, expressly referred to by article 17 of law no. 91