Italian jurisprudence on citizenship jus sanguinis, or citizenship by descent, has recently undergone significant changes that could make the process of obtaining dual citizenship through the courts more challenging. The January 2024 ruling from the Italian Supreme Court (Cassazione, Decision n. 454/2024) could pose challenges for individuals pursuing Italian citizenship through descent with a so-called denied justice proceeding.
Understanding Italian Citizenship Jus Sanguinis
Italian law grants citizenship to the descendants of an Italian citizen with no generational limit, provided the Italian ancestor was born or lived after 1861, the year of Italy’s unification. Generally, this means that if you have an Italian ancestor, you could be eligible for Italian citizenship.
However, complications arise if your ancestor naturalized in another country before 1992.
Under the laws governing Italian citizenship at the time (first, the law of 1865 and then that of 1912), an Italian citizen who acquired foreign citizenship through naturalization would automatically lose their Italian citizenship. For instance, before 1992, dual citizenship was possible to children born in the U.S. to Italian born parents, provided their parents were still citizens of Italy at the time of their birth.
What Has Changed?
The Recent Supreme Court Ruling
Until the 2024 Supreme Court decision, the rule was straightforward: a parent who naturalized as a US citizen before the birth of their child lost their Italian citizenship and could not pass it on to their children. However, if the parent had not yet naturalized at the time of the child’s birth, that child could claim Italian citizenship.
The latest ruling reinterprets this principle in light of Italian laws that were in force prior to 1992, focusing on the status of the head of the household. Under the previous system that regulated Italian family law, the entire household was subject to the status of the father.
Within this interpretative framework, the Supreme Court judges stated that – for a descendant to be considered an Italian citizen – the head of the household must not have naturalized in a foreign country until after the child reached adulthood.
The Case
The case submitted to the Supreme Court concerned the citizenship status of the descendant of the plaintiff, born in the US in 1909 to an Italian father who naturalized in 1910.
To understand the Court’s reasoning, we need to keep in mind the two norms on which the decision was based: Articles 7 and 12 of Italian Law 555/1912.
Article 7 states that “the Italian citizen born and residing in a foreign State, of which he is considered a citizen by birth, retains Italian citizenship“. This norm is the first legal recognition of Italian dual citizenship, which existed only de facto before 1912.
Article 12 stipulates that minor children residing with parents who naturalize (and thereby lose their Italian citizenship) “become aliens“ along with their parents, without specifying whether this applies to Italian born or foreign-born children. This same rule was also codified in Article 11 of the 1865 Italian Civil Code.
The plaintiff argued that the rule in Article 11 of the Italian Civil Code and Article 12 of Italian Law 555/1912 does not apply to a minor born in a foreign State with jus solis (in this case US) citizenship and Italian dual citizenship. Instead, said rule should apply in the case of Italian-born children of parents who subsequently naturalized in a foreign State, considering that a minor born as a citizen of a foreign State does not become an alien (since the child is already born with a foreign citizenship). Therefore, according to Article 7, the plaintiff would have retained his Italian citizenship along with his US citizenship, notwithstanding the father’s naturalization.
The Supreme Court, however, rejected the plaintiff’s argument, and held that Article 12 applies to any minor child of a naturalized Italian citizen, thus also to the cases referred to in Article 7. Hence, a child born abroad to Italian parents keeps her/his Italian citizenship in accordance with the laws in force at the time. Nevertheless, according to the court, citizenship may be lost through either voluntary renunciation upon reaching the age of adulthood or through the naturalization of a parent before reaching adulthood or emancipation.
The Current Landscape
Following the Supreme Court’s interpretation, if your Italian ancestor — who was the head of the household — naturalized before their child reached adulthood, it may now be more challenging to claim citizenship. As a result, many individuals who previously understood to have a clear path to Italian citizenship may find themselves facing unexpected hurdles.
It is important to note that:
(i) this interpretation is recent, not all courts in Italy are applying it on a consistent basis.
(ii) Italy is a civil law country, case law is not legally binding as it is in the US. The Supreme Court directs the other courts’ interpretation, but the judges remain bound by the written laws.
(iii) So far, this interpretation applies only to denied justice claims brought in Italian courts.
As such, consulates or some regional courts may continue to recognize claims based on the prior understanding of the law. This inconsistency can create opportunities for some applicants, while others may face delays or additional scrutiny in their applications.
Learn more about becoming an Italian dual citizen with the knowledgeable team at With_Papers
Given the complexities introduced by the recent ruling and the varying interpretations by Italian courts, seeking professional guidance is more important than ever. Our team of legal experts is here to help you navigate the process, assess your eligibility, and identify the best strategy for your specific circumstances. Reach out to With_Papers, and let us guide you through the process. We stay up-to-date with these evolving legal interpretations and are prepared to explore alternative avenues to help you obtain your Italian dual citizenship.
To learn more about becoming an Italian citizen and if it is the right path for you, call us at 917-310-2246 or fill out our contact form or schedule a free consultation today.