Posted by on Sep 14, 2018 in IMMIGRATION AND NATIONALITY LAW UPDATE, LEGAL UPDATES

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We have been receiving an increase in enquiries in relation to past criminal convictions (which can include cautions) and what the Italian law states in relation to criminal convictions when making an application for Italian citizenship on the basis of marriage or residency.

Citizenship on the basis of marriage: Applying for Italian citizenship on the basis of marriage is an automatic right. Citizenship on the basis of marriage can only be denied to those who have a criminal record for a serious crime committed either in or outside of Italy. It can also be denied to those who are considered a threat to the national security and public order.

Article 6 (1) of Act No. 91 of 5 February 1992 is the law that should be considered and clearly states the following reasons that shall prevent the acquisition of citizenship on the basis of marriage:

a) Conviction for one of the offences provided for in Volume II, Title 1, Chapters I, II and III of the Criminal Code

b) Conviction for an offence committed with criminal intent for which the law prescribes a statutory penalty of a maximum of at least three years imprisonment, or conviction by a foreign judicial authority for a non-political offence for which the law prescribes a custodial penalty of more than one year, when the foreign sentence has been recognized in Italy

c) The existence, in the case concerned, of substantiated reasons relating to the Republic’s national security

The acquisition of nationality by marriage is not possible by foreigners with criminal convictions for offences for which a punishment of at least three years of imprisonment was imposed. Italian citizenship will also not be granted to those who have committed criminal offences abroad for which a punishment exceeding one year is imposed for a non-political offence. Rehabilitation ceases the preclusive effects of the conviction as confirmed in sentence n.6391 of the Tribunal of Rome dated 29 March 2016.

Citizenship on the basis of residency: Whether applicants are applying for naturalisation as an Italian citizen under the 3, 4 or 10 year route all citizenship applications must be accompanied by criminal record certificates from all countries that the applicant has resided in since he/she was 14 years old. These need to be legalised by the Foreign Office of the country of issue and have a certified Italian translation attached.

British Criminal Record Certificate (ACRO) – Applicants for Italian citizenship who have spent a period of residence or all of their lives in the UK prior to arriving in Italy will require an ACRO criminal record certificate. Although specific for those who have resided in the UK it can act as an example as to when and how criminal convictions are deemed “spent” and how this affects what information will be provided about the applicant on their criminal record certificate. We refer to an ACRO manual called ‘Step-down Model’ dated 5 January 2018 which explains how offences for certifcates of convictions are filtered. Offences are ‘stepped down’ after a set time period whilst taking into account the seriousness of the offence, the age of the subject when the offence was committed, the outcome and the sentence imposed. The categories are A, B and C. A being the most serious and C the least serious. Where an offence has been “stepped down” this will be identified on the ACRO certificate with the publication of ‘No Live Trace’ as opposed to someone with no conviction at all where it would state ‘No Trace’.

Whether the Ministero dell’Interno will carry out further investigations as to why on the applicant’s certificate it states ‘No Live Trace’ as opposed to ‘No Trace’ is a burden that lies on them and entirely within their rights as the governmental body making a decision on the application.

Ultimately, what will be the deciding factor is the length of the conviction and for what crime. A grant of “concessione” of Italian citizenship via the residence route is discretionary, so the existence of any prior conviction, however minor, will be looked at together with all other grounds of a person’s application.

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