Posted by on Jun 11, 2018 in IMMIGRATION AND NATIONALITY LAW UPDATE, LEGAL UPDATES

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DEFINITION OF “LAWFUL RESIDENCE”

Right to Italian citizenship at age 18 where born in Italy

Cassazione Civile Sent. Sez. 1 Num. 12380 del 17 May 2017

FACTS

The Claimant (a minor) was born in Italy on 5 June 1991 to immigrant parents from Former Yugoslavia. The Claimant’s father had a permesso di soggiorno valid until 1999. The Claimant’s mother had requested permesso di soggiorno in 1992. A request to register the Claimant at the anagrafe was made on 14 September 1995, four years after the child was born.

There were various documents submitted in support of the Claimant’s application for Italian citizenship namely:

  • Vaccination certificates of the Claimant covering the period 1991 to 2009.
  • Claimant’s father’s ‘libretto di lavoro’ evidencing his work posts from 1990 to 2000.
  • Declarations from the Social Services who were dealing with the family’s case
  • Father’s INPS declarations, which showed that the Claimant was a part of her father’s ‘nucleo familiare’ and as such the Claimant’s father was receiving ‘assegni familiari’ until 7 September 1992 with a possibility for renewal prior to the deadline of 13 April 1991.

ISSUES:

The documents submitted had been considered false.

On the Claimant’s birth certificate the parents’ residence was stated as being in Dardania. It was recorded that the family had claimed to have emigrated from Yugoslavia to Italy in January 1995, 4 years after the Claimant’s birth.  The Court of Appeal did not comprehend why the father of the Claimant stated that the family had resided abroad for 4 years if this did not correspond with reality. It was further not understood why a correction had not been made prior to 1995.

In any event, the Court of Appeal was seen to have breached art.4 della legge n.91 del 1992 by not accepting the Claimant’s residence following the Claimant’s birth in accordance with the rules in the codice. The Court of Appeal did not apply the law but only took into consideration what had been stated on the Claimant’s birth certificate and further the parents would not have known what the requirements would have been for their daughter’s residence and further her application for citizenship in the future. The Court of Appeal should have carried out an examination which would have shown continuity of residence; i.e. from birth to the point of integration of the Claimant in Italy. This could have been done on the basis of documentary evidence provided. No just weight was given to the documents submitted.

  • The Claimant should have been residence from her birth, i.e. from 1991 not from 1995 when her parents had registered her residence.

THE LAW:

  • Art 4. Della legge n.91 del 1992 states: ‘A foreigner who was born in Italy, and has legally resided in Italy without interruptions to the point of reaching 18 years becomes an Italian citizen if they declare their intention of obtaining Italian citizenship within one year after reaching adulthood’.
  • This will only apply if the foreigner has resided legally in Italy, has never entered Italy clandestinely and has always had some for of permesso di soggiorno.
  • Article 43 of the Codice Civile states that residence is where you are habitually resident.
  • Art 138 of the Codice di Rito states that your residence is where it has been registered in an anagrafe
  • Circolare n.22 del 2007 by the Ministero dell’Interno states ‘ratione temporis applicabile’, in the event that the parents of a minor register their residence with a delay, this cannot cause prejudice to the minor’s application for residence later on when in fact their residence has taken place.
  • 4 comma 2 della legge 5 febbraio 1992 n.91 states that an Applicant should not face any impediments caused by their parents or by officers of public administrative offices as they can support their application with required documentation. Further, officers of the Stato Civile are required following a potential Applicant’s eighteenth birthday to advise them that they can make an application for Italian citizenship on the basis of the said law following completion of their nineteenth year.

HELD:

  • The matter was resent to the Court of Appeal for reconsideration of the application on the basis of the failure of just consideration of documents submitted.

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