A new language test for Italian citizenship has recently been added in an amendment to the immigration and citizenship law D.L. n. 91 of 5th February 1992.
Last month amendment 14.7 of the Decreto Sicurezza was approved in the Camera, confirming the requirement that all those applying for Italian citizenship under Article 5 of the 1992 law (marriage grounds) and Article 9 (residence grounds) must pass an Italian language test to the minimum level of B1 (pre-intermediate).
Article 9 of D.L. n. 91/1992 has now been amended to include Article 9.1, which states:
‘The granting of Italian citizenship pursuant to Articles 5 and 9 is subject to possession by the interested party of an adequate knowledge of Italian, not less than level B1 of the Common European Framework of Reference for Languages (CEFR)’.
This is expected to be shown by production of:
“un titolo di studio rilasciato da un istituto di istruzione pubblico o paritario riconosciuto dal Ministero dell’istruzione, dell’università e della ricerca e dal Ministero degli affari esteri e della cooperazione internazionale o dal Ministero dell’istruzione, dell’università e della ricerca, ovvero a produrre apposita certificazione rilasciata da un ente certificatore riconosciuto dal Ministero dell’istruzione, dell’università e della ricerca e dal Ministero degli affari esteri e della cooperazione internazionale o dal Ministero dell’istruzione, dell’università e della ricerca.”
The Common European Framework of Reference for Languages (known in Italian as Quadro Comune Europeo di Rigerimento per le Lingue (QCER)) states that in order for an applicant to have a B1 level of knowledge, he/she should be able to do the following:
- Can understand the main points of clear standard input on familiar matters regularly encountered in work, school, leisure, etc.
- Can deal with most situations likely to arise while travelling in an area where the language is spoken.
- Can produce simple connected text on topics that are familiar or of personal interest.
- Can describe experiences and events, dreams, hopes and ambitions and briefly give reasons and explanations for opinions and plans.
The following Italian language certificates have been approved by the CEFR: CELI, Speexx, CILS and PILDA.
The online application has not yet been amended, but there is already an indication on the Ministero dell’Interno portal that applicants from 1st December may be contacted to integrate their documentation.
Changes to Italian Immigration and Citizenship rules (Decreto Salvini) came into force on October 5th 2018 with Decreto Legge 113/2018.
Article 14 of this new law changes the current rules on applications for Italian citizenship. These new rules affect a number of our clients, in particular British citizens hoping to obtain Italian citizenship before the UK leaves the EU in order to safeguard the rights associated with European citizenship. The main changes are the increase in time in which the Home office must make a decision and the increase in the application fee. Although amendments were also proposed to recognise the same rights to women ancestors to have passed Italian citizenship to their descendants, this was removed from the draft and has not been included in the definitive text. It is expected that this will be included in future legislation.
We have prepared an English translation of Article 14 which deals with changes to the rules on applications for Italian citizenship on the grounds of marriage (Art. 5 of the 1992 law) or on grounds of residence in Italy (Art. 9 of the 1992 law).
(Provisions for the acquisition and revocation of citizenship)
1 The following modifications are to be made to Law of February 9th 1992, n.91:
a) Article 8, para 2 is revoked
b) Article 9bis, paragraph 2, is amended, the words «sum of 200 Euro« are replaced with the following «sum of 250 Euro»;
c) At the end of Article 9 bis the following is added:
ADDED TEXT “Article 9-ter 1. The term for definition of proceedings referred to in Arts. 5 and 9 is forty-eight months from the date of presentation of the question. “;
2. The time limit referred to in para 1. above also applies to applications for the recognistion of Italian citizenship made to the Italian Consulate network or to the Anagrafe of the Comune relating to facts which took place prior to 1948;
d) At the end of Article 10 the following is added:
ADDED TEXT “Art. 10-bis: 1. Italian citizenship which has been acquired pursuant to Arts. 4 para 2, Art. 5 and Art. 9, is revoked when the foreigner or stateless person to whom it was granted is convicted definitively for any of the criminal offences provided for by article 407, paragraph 2, letter a), n. 4), of the code of criminal procedure, as well as for the crimes referred to in articles 270-ter and 270-quinquies.2, of the Italian criminal code.
The revocation of citizenship is adopted within three years of the conviction of one of the offences mentioned above by decree of the President of the Republic, on the proposal of the Minister of the Interior.
2. The provisions referred to in paragraph 1, lett. b) e) and d) apply to the conferment procedures of citizenship in progress at the date of entry into force of this decree.
3. To Article 1, para 1 of the Law of 12th January 1991 n. 13 the letter aa) is substituted by the letter “aa) Concession and revocation of Italian citizenship”.
Following 5 years of continuous legal residence in Italy, an EU citizen* can apply for permanent residence. This is a certificate issued by the Comune known as the “Attestato di soggiorno permanente“.
The right to obtain the Attestato di soggiorno permanente is provided in the Directive on Free movement (2004/38/CE) and is incorporated into Italian law no. 30 of 2007 (see articles 14- 16).
Diritto di soggiorno permanente
1. Il cittadino dell’Unione che ha soggiornato legalmente ed in via continuativa per cinque anni nel territorio nazionale ha diritto al soggiorno permanente non subordinato alle condizioni previste dagli articoli 7, 11, 12 e 13.
Unlike obtaining a residence certificate within 3 months of entry into a new member state, the acquisition of permanent residence is not compulsory. It is an advantage to have this however, for these reasons:
- Once permanent residence has been obtained, it can only be forfeited if the applicant is absent from the member state where they acquired permanent residence for 2 years as per Article 14 comma 4 of directive 2004/38/CE vo 03/07.
- Some Comune may ask that residence certificates are up-dated or the holder proves the grounds on which he/she is resident in Italy. In the case of permanent residence this question need no longer be asked.
We do recommend that British citizens currently resident in Italy apply for this certificate as after the UK leaves the EU this may no longer be possible.
An application for the “attestato” is made to the Comune in which the person is currently resident. The applicant needs simply to show a valid ID such as a passport or identity card, as well as the continuity of residence for more than 5 years in Italy. It is not necessary to provide evidence of the conditions under which he/she was resident (although in practice many Comune do ask for bank statements of payslips or health insurance this is not a legal requirement). The continuity of legal residence could be proved by a “certificato di residenza storica”.
Each Comune should be able to issue EU citizens with advice on how to apply.
See link here to the Comune di Roma: Attestato di soggiorno permanente di cittadino dell’Unione Europea
Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country as per Article 16 of directive 2004/38/CE.
According to Article 15 of directive 2004/38/CE vo 30/07 permanent residence can be acquired even before the completion of 5 years legal residence for various reasons. For example, family members who have legally resided in a member state with the applicant for a continuous period of 5 years can apply for permanent residence also.
*Despite the UK’s decision to invoke Article 50 of the TEU, at the time of writing, the United Kingdom remains a full member of the EU and rights and obligations continue to fully apply in and to the UK.
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.
RIGHT TO CLAIM FOR ITALIAN CITIZENSHIP BY DESCENT VIA FEMALE LINE, WHERE CLAIMANTS MOTHER HAD AUTOMATICALLY LOST HER CITIZENSHIP ON MARRIAGE TO FOREIGN NATIONAL
Corte di Cassazione, judgment of 5 November 2015 n. 22608
An Italian citizen married her Egyptian citizen husband in 1950 and settled in Egypt. She became an Egyptian citizen automatically following her marriage. The Claimant, her son, applied to the Tribunale di Roma in relation to his application for Italian citizenship on the basis of iure sanguinis.
Whether the son of this Italian citizen would have the right to become an Italian citizen by descent, in the light of his mother having married an Egyptian national, given that she was considered by Italian law to have automatically renounced her Italian citizenship on marriage, even though she had not done so voluntarily.
Article 8 of the law dated 13 June 1912 n. 555 provides for the loss of Italian citizenship by a woman following acquisition of a foreign citizenship on marriage, even without making a voluntary decision to do so,
Article 10 (9) of the law dated 13 June 1912 n. 555 stated that a married woman could assume a different citizenship from that of her husband even if there is a personal separation between the spouses. If a foreign woman married an Italian citizen, on the other hand, then she acquired Italian citizenship. Ulitmately it was the man’s citizenship that determined the automatic citizenship of his wife and offspring.
The above articles have since been abrogated as ruled to be unconstitutional, ie contrary to the principle of equality of men and women in the 1948 Italian Constitution.
Article 17 of the law 5 February 1992 n. 91 deals with the process of identifying the status of the son of his Italian citizen mother who in theory was an Eyptian citizen at the point of his birth.
The Court held that in order to lose Italian citizenship, there must be a “spontaneous and voluntary renunciation” made by the citizen. This cannot be said to have taken place where under the terms of the 1912 law it was imposed on a woman that she would automatically acquire the citizenship of her husband. The Court ordered that there be an further investigation into the actual circumstances of her naturalisation.
DELAY BY CONSOLATO ITALIANO IN PROCESSING APPLICATION (AND RIGHT AS AN ALTERNATIVE TO APPLY TO THE COURTS IN ITALY EVEN THROUGH THE MALE LINE).
Ordinanza del Tribunale di Roma 18 April 2018
The Claimants were the grandchildren of an Italian citizen (BG) born in Italy in 1879, who had emigrated to Brazil, where he died without ever renouncing his Italian citizenship. His descendants made an application for Italian citizenship by descent at the Italian Consulate at Porto Alegre, Brazil in 2016, claiming that via ius sanguinis he passed his citizenship to his son, who passed the citizenship onto his children. There was an unbroken chain of Italian citizenship being passed through the male line.
In 2018 the Italian Consulate in Porta Alegre were still making decisions on applications from 2008! The Claimant had therefore petitioned the Rome Court in view of the delay.
- 2 della Legge n.241 del 7 agosto 1990 states that a decision needs to be made within a certain timeframe.
- 3. DPR n. 362/1994 states that a decision needs to be made within 730 days. The Ministero dell’Interno in this period needs to inform the applicants that they have been granted/refused Italian citizenship.
- The case was simple in which only the paternal line was needed to be considered and this should have been done within the required timeframe.
- The court ordered that a decision should be made and that the applicants should be granted citizenship
- Court orderered the Ministero dell’Interno to repay the cost of the case i.e. 4000 Euros, plus 259 Euros to be reimbursed to the applicants.
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
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.
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.
- 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.
- 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.
The sad fate of 23 month old Italian citizen Alfie Evans who never managed to arrive in Italy.
Alfie Evans was granted Italian citizenship on 24 April 2018 on the basis of Article 9(2) Act No. 91 of 5 February 1992, which states that:
‘By decree of the President of the Republic, having heard the Council of State and following a decision by the Council of Ministers, upon a proposal of the Minister for the Interior, in consultation with the Ministry for Foreign Affairs, citizenship may be granted to aliens where they have rendered an outstanding service to Italy, or where an exceptional interest of the State exists’.
It was determined that Alfie’s case was of interest to the Italian State in order to ensure further therapeutic developments for the minor, in the protection of pre-eminent humanitarian values which, in this case, concern the safeguarding of health.
Pope Francis was also involved in Alfie’s fate following Alfie’s father, Tom Evans travelling to Rome and asking for his son to be granted asylum in order for Alfie to receive treatment at the Bambino Gesù Pediatric Hospital. The Pope said that the Vatican’s Secretariat of State would ensure a “decisive diplomatic channel is open up for Alife so that the dignity of his life is respected”. Shortly after, Foreign Minister Angelino Alfano and Interior Minister Marco Minniti granted Italian citizenship to Alfie on 24 April 2018 and hoped that by doing so, the child would immediately be able to be transferred to Italy. The Italian government applied to the UK Foreign Secretary for permission to intervene to save Alfie’s life. The court banned Alfie to travel. The Italian government was asked to intervene in the case in order for their citizen Alfie Evans to be returned Rome.
The Alder Hey Children’s Hospital in Liverpool, where the child was being nursed recommended to Alfie’s parents that treatment be stopped as the damage was too extensive. Alfie’s matter was taken to the Family Division of the UK High Court and was dismissed. The case was then referred to the Supreme Court and was dismissed yet again.
Despite, the Italian government’s initial offer for Alfie to be transported to Rome’s Bambino Gesù Pediatric Hospital, the Roman doctors later changed their minds after consulting with Alfie’s doctors in the UK stating that the condition was irreversible and untreatable. Mr Justice Hayden consequently rejected the notation to take Alfie to Rome and ordered to end Alfie’s life support should commence at 21.00 on 30 April 2018.
Mr Justice Hayden was scolded by many for referring to the urgent plight of Kate James and Tom Evans to keep their son alive as ‘deluded’ and ‘emotive nonsense’. The Guardian stated that: ‘the outpouring of what he called ‘emotive nonsense’ in his courtroom is not to be confused with heartlessness. Rather it is a recognition that court are the one place where, in cases like these, reason can still prevail over white-hot emotion’. Hayden ordered that the child’s ventilator be switched off as keeping the child alive was no longer in the child’s best interests. Following Hayden’s determination, Alfie’s parents made a desperate appeal to the European Court of Human Rights, which rejected the application deeming it to be inadmissible.
Alfie sadly died at 02.30am on 28 April 2018. It will always remain an unknown whether Alfie would have received better care and have lived longer as an Italian citizen had he been allowed to be treated in the Bambino Gesù Pediatric Hospital in Rome.
MEETING IN ROME NEXT WEEK
WEDNESDAY 2ND MAY AT 2.30PM
All Saints Church, Via del Babuino (St Thomas Room in the Crypt – access from Via Gesù and Maria)
Speakers will be Gareth Horsfall, Charlotte Oliver and Alison Jamieson of British in Italy
Please confirm you will definitely be attending with your full name and a contact cell no, either on Facebook page or to email address firstname.lastname@example.org.
The church has allowed space for 50 attendees in total so first come first served!
Applications under article 9 of the Italian citizenship law of 1992 require proof of “legal residence”. The period must be uninterrupted, and can vary from three years in the case of a person who has a parent or grand-parent who was born Italian, to a maximum period of 10 years which needs to be proved by a non-EU national.
In law n. 572/1993, which gives guidance on the new citizenship law, legal residence was defined as:
“a person shall be consisdered to be legally resident in Italy if they have satisfied the conditions and the procedures required by regulations in relation to entry and stay of -non-Italians and of those relating to registration at the Anagrafe.”
Caselaw developed in the administrative courts, the TAR and Consiglio di Stato have repeatedly underlined that legal residence can only be proved by providing a certificate of registration as a resident at the Anagrafe.
This does not quite tally with actual practice. Many non-Italians who have lived and worked in Italy, Rome in particular, whether as Embassy staff on “mission” from their home country or for international organisations such as IFAD, FAO and WFP may also be considered lawful residents of Italy and may apply for Italian citizenship.
Instead of a certificate of residence, on arrival in Italy they are provided with an ID card issued by the Ministero degli Affari Esteri. The MAE Card exempts holders from the requirement of having to register their residence with the local authorities (Registrazione della Residenza Anagrafica with the Comune). The MAE Card can be used in all dealings and transactions where the residence registration is required, including an application for Italian citizenship.
In the online application for Italian citizenship, it is recommended by the Home Office to attach in the space designated for a “generic document”, documentation which shows the period of lawful residence, where the person could not register at the Anagrafe because of being a UN staff member for example. Although the system is not helpful in that it allows one document to be uploaded, information which would be useful for a claim are:
- information relating to income which is exempt from having to be declared in Italy (FAO IFAD, Embassy salaries)
- confirmation of dates spent as employee of international organisations in Italy
- copy of MAE card