Claims to Italian citizenship through maternal line
Descendants of female Italian citizens who left Italy in the late 19th century and the early part of the 20th century have been hampered in their quest for an Italian passport by the 1912 law on Italian citizenship.
The Italian Law (Legge no. 555 of 1912) provided that an Italian woman would automatically lose her Italian citizenship either on marriage to a foreign national husband or if her Italian husband naturalised, ie took up a new nationality having emigrated from Italy. The Italian wife was deemed to automatically acquire the new nationality of her husband, irrespective of her actual wishes.
There may only have been a possibility for the woman to reacquire Italian nationality (see Article 9 of Law no. 55) (1) if she worked for the Italian state, or (2) after one year if she returned to reside in Italy and renounced her new citizenship, (3) after two years of living in Italy again, or (4) after two years of moving to a new country as long as she did not apply for citizenship of that country.
According to Art. 1 of Law no. 55/1912, a child could only take the nationality of their father (unless he was unknown):
“A person is born an Italian citizen where:
- The Father is Italian
- The mother is Italian, where the father is unknown or does not hold citizenship of any country, or if the child does not acquire the citizenship of the foreign father according to the law of that country
- Neither parent hold citizenship are unknown or do not hold citizenship of any country
Abrogation of the 1912 Law after the Italian Constitution 1948
In recent years there have been major developments in the law of Italian citizenship as regards married women, as a result of:
- the Italian Constitution of 1948,
- the 1975 Italian Family Reform Law (Legge n. 151/1975) and
- the 1983 Law on the acquisition and loss of Italian citizenship (Legge n. 123/1983).
These legal developments now have retrospective effect on the automatic naturalisation of a female Italian citizen since 1912. It is now recognised by the Italian courts that a woman did not automatically lose her Italian citizenship at the moment of marriage or her husband’s naturalization, as she did not expressly renounce this herself by her own free will.
This development in the law began with the decision of the Italian Constitutional Court n. 87 of 9th April 1975, which declared that specific articles of the 1912 law were in violation of the Italian Constitution, in that they led a woman to automatically lose her Italian citizenship independent of her wishes on marriage to a foreign national. It was pointed out that in 1912 the woman had been considered as having inferior legal status to a man, which was in contrast with the concept of the 1948 Constitution which for the first time had recognised the equality of the sexes before the law. The 1912 law was therefore deemed to have created an unjustified and irrational disparity of treatment between two spouses, by not requiring any expression of agreement by the wife to lose her Italian citizenship.
Immediately following this 1975 court decision, the 1912 Italian law was amended. A provision confirming that a woman would not in future lose her Italian citizenship, even when her Italian husband acquired a new nationality, was inserted into the 1975 Family Reform Act, Art. 25, which amended the Italian Civil Code, adding Art. 143 ter as follows:
“a wife shall retain her Italian citizenship, in the absence of any express renunciation, even where by the effect of her marriage or the changing of nationality by her husband she assumes the citizenship of a foreign country.”
Article 219 of the new Family Law of 1975 also provided that any woman, who by effect of marriage to a foreign husband, or the acquiring of a new citizenship by her husband, had lost Italian citizenship, could reacquire this (or in effect be recognised as still being Italian citizens) by making a declaration. All rules in the 1912 Law which were considered incompatible with the Constitution, were therefore considered annulled.
It was subsequently confirmed by the Italian Constitutional Court (decision n. 30 of 1983) that Article 1 (1) of the 1912 law was in violation of the Italian Constitution, in that it did not allow for a child of an Italian wife, who should have been allowed to retained her Italian citizenship even after marriage to a foreign husband, to claim Italian Citizenship via the maternal line.
It therefore became possible at the moment of this court decision in 1983 for any child born after 1st January 1948 of an Italian mother to claim that they had acquired Italian citizenship from her. This was ratified by new legislation the same year (Legge n. 123 /1983).
Initially this was not recognised as having any retroactive effect to births prior to the date of the Constitution in 1948. The citizenship law n. 91/1992 also confirmed this fact of no retroactive effect on children of previously Italian mothers born prior to 1948.
However, in a landmark decision in 2009 the Court of Cassazione (case no. 4466 of 25/2/2009) ruled that a person applying for Italian citizenship by descent could prove the transmission of Italian citizenship down through the maternal family line even via female ancestors born before 1st January 1948.
This judgement referred to and upheld the principles of the Convention of New York of 1979 against discrimination against women in citizenship matters.
The Cassazione held that citizenship was a “status” which was permanent and was not subject to expiry unless expressly renounced, so should be recognised at any subsequent point in time, even after the coming into force of the 1948 Constitution (and even where the ancestor had since died).
The Civil Court of Rome now accepts and has approved many petitions on these lines. The 2009 decision and later caselaw has not been ratifed yet by legislation (it was actually proposed in the new Immigration and Security Law no.113 of 2018, but then removed from the draft legislation before Parliament approved it).
Until such time as legislation is put in place, an application must still be made via the Italian civil court in Rome for the recognition of Italian citizenship by ancestors of Italian women born before 1948.
For further information please see the following page on Applying for Italian citizenship by descent or contact Aleksandra Broom and Charlotte Oliver for advice on your particular family history.
Freedom of movement to establish a business in the EU
Please follow this link to read the article in Italian
Within TFUE, articles from 49 to 54 refer to the right of establishment recognised to companies and firms, which means the right to move to another member State of UE in order to practice an employment or an activity.
About it, art. 49 TFUE provides as follows: “Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.”
Art 52 TFUE specifies that particular prescriptions imposed by national laws, constituting restrictions, are admitted only if justified on grounds of public policy, public security or public health.
This criterion is fundamental and it applies to all restrictions posed by national legislations to the rights recognised by European law.
Concerning companies, art. 54 TFUE orders that “Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States. ‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.”
Within UE, in order to have access to the right of establishment, companies must have legal entity and especially profit purposes, which means for example consequently the exclusion of associations.
Moreover, it is necessary for companies to have the nationality of a UE member State and to have constituted and matriculated in conformity with legislations where they have statutory headquarters, central administrations or principal domicile.
There are two modalities able to identify the nationality of a company and those are being object of discussion between UE member States: one is the criterion of incorporation, used for example by United Kingdom and the Netherlands the other is the criterion of effective domicile, used for example by France, Italy, Germany and Spain.
Within incorporation criterion, companies acquire nationality of the State where they have matriculated, whereas within effective domicile criterion companies acquires nationality of the State where they have effective activity and headquarters, or administration.
European law did not choose a unique criterion, which means that interpretative conflicts and discussions can surely occur, when individuation of a company’s nationality is necessary.
About those criterions, a sort of preference seems to appear in art. 54 TFUE, where it is provided that the constitution of a company in conformity with national legislations determines recognition of nationality, even if the effective domicile is elsewhere.
In this specific instance, hence, European law seems to favour incorporation criterion.
The principal issue concerning practical application of the right of establishment, after identification of the nationality, is that uniformity between company national laws lack; in particular, it is not possible to transfer its headquarter without first extinguish the company and then re-constitute it.
Despite the existence of various European directives on the subject, lately with UE directive 2017/1132, the issue mentioned above has not yet find a solution.
As consequence and due to the exigence of definition of material application of the right the establishment for companies and its branches, the CJUE have developed an interesting jurisprudence.
For example, the CJUE sentence, widely known as Centros, has evaluated a company matriculated in the United Kingdom, even if its effective activity was in Denmark. The reason was due to the intent of avoid the application of Danish laws, more strict in the field.
In this case, European Judges have decided that the intent of avoid the application of a strictly national legislation did not constitute an abuse of the right of establishment, considering also that the inscription and matriculation made in the United Kingdom was correct and proper.
Avv. Agnese Micozzi
Bibliography
TFUE text
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=IT
Articles on the object
http://rivista.eurojus.it/liberta-di-stabilimento-e-restrizioni-alle-trasformazioni-internazionali-in-uscita-il-caso-polbud/
http://www.europarl.europa.eu/factsheets/it/sheet/35/diritto-societario
Centros sentence
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61997CJ0212
EU blue card – highly skilled workers visa
EU Blue Card:
The EU Blue Card is a work permit that is offered by 25 Member States to highly-qualified non-EU citizens. The permit allows for non-EU citizens who are qualified workers to have the freedom of movement within the European Union.
Apart from being a non-EU citizen, an applicant must also be one of the following: a highly-qualified/skilled worker or a researcher. There are also opportunities for students, vocational trainees and seasonal workers.
As there are various labour shortages in particular sectors within Europe, there is a demand of qualified workers within the following professions: mathematics, informatics, natural sciences, technology and medicine. The highly-qualified worker will need to demonstrate that they are able to provide an economic service that is scarce in the hosting EU member state, that the business will have a positive effect in the overall economy of the hosting state and that the applicant possesses sufficient financial resources to provide for the operation of the business. The aforementioned professionals have a higher chance of obtaining the EU Blue Card due to lack of candidates and lower annual income.
The highly skilled professional will have to submit documentary evidence that they have obtained the required knowledge by way of either university degree, work experience as a scientist, academic or other highly-qualified occupation. In case of no university degree, the applicant will have to demonstrate five years equivalent work experience.
A written declaration from the employer will need to be provided as part of the application process, explaining what benefit the applicant will have on their business. Ultimately, the employer is acting as the applicant’s sponsor and without this declaration the application for an EU Blue Card will not be successful.
For applicants making an application for an EU Blue Card in Italy, the employer must present a request, or a communication, proposing a contract to the Sportello Unico per L’immigrazione (Single Desk for Immigration) in the Prefettura of the right province. If the application is successful, the Italian embassy in the applicant’s country of origin will issue a visa to enter Italy. This is known as entry clearance.
There is also a salary threshold that must be met. For a profession that is in shortage the estimated salary is 37,752 Euro, for university graduates the estimated salary is 46,400 Euro and for jobs where a ‘special interest’ is requested, the estimated salary is lower and therefore it is easier to obtain the EU Blue Card.
After the application has been submitted, the applicant may have to wait for a maximum of 90 days until they receive a decision on their application. A refusal generates an automatic right of appeal, which needs to be exercised within three weeks of the service of the decision.
At Oliver and Partners we can assist you in making an application for an EU Blue Card and obtaining and submitting all relevant documentation.
Decreto Flussi 2019
Work Permit Quotas 2019 for non-EU nationals:
Work permit quotas for non-EU nationals in Italy are released at the beginning of each year by way of publication of the Immigration Quota Decree ‘Decreto Flussi’, which allows non-EU nationals who meet the requirements of the decree to obtain a work permit in Italy.
The quotas vary from year to year. In 2018, the quota was 30,850 in relation to non-EU nationals of which 18,000 were seasonal workers. It is highly likely that the quota shall remain the same for 2019. In 2018, 30,850 workers were divided into three groups i.e. non-seasonal workers, seasonal workers and those who were converting existing permits.
Non-Seasonal Workers –Total 3,000 permits:
Foreign nationals who have completed specific educational programs in their home country: 500 permits.
Certain officers and administrators of Italian companies (restrictions apply), plus certain self-employed individuals from the following categories: a) Entrepreneurs (restrictions apply), b) Freelance workers, c) Highly skilled or renowned artists d) Founders of start-up companies: 2,400 permits.
Foreign nationals resident in Argentina, Brazil, Uruguay or Venezuela with Italian ancestry: 100 permits.
Seasonal workers – 18,000 permits:
Seasonal workers in the tourist and agricultural fields who are nationals of the following countries: Albania, Algeria, Bosnia-Herzegovina, Egypt, El Salvador, Ethiopia, former Yugoslav Republic of Macedonia, Gambia, Ghana, India, Ivory Coast, Japan, Kosovo, Mali, Mauritius, Moldova, Montenegro, Morocco, Niger, Nigeria, Pakistan, Philippines, Senegal, Serbia, South Korea, Sri Lanka, Sudan, Tunisia, Ukraine: 16,000 permits
Conversion of existing permits – 9,850 permits:
Conversion of seasonal permits into standard sponsored work permits: 4,750 permits.
Conversion of study/internship/training permits into subordinate work permits: 3,500 permits.
Conversion of certain long term residence permits (“permesso di soggiorno CE”) issued by another EU member State into subordinate work permits: 800 permits.
Conversion of study/internship/training permits into independent work permits: 700 permits.
Conversion of certain long term residence permits (“permesso di soggiorno CE”) issued by another EU member State into independent work permits: 100 permits *
In a the recent Press Conference ‘Conferenza Stampa’ on 23 January 2019, the Interior Minister stated that some countries who have not been collaborating have will be excluded from this upcoming Decreto Flussi, these will possibly include Pakistan and Bangladesh.
At Question Time on 21 November 2018, Lisa Noja from the Partito Democratico asked what the governments intentions were in relation to the shortage of family assistance (l’assistenza familiare) staff and in particular to domestic workers and caregivers in Italy. The reponse was the the government priority lies in resolving the unemployment rate in Italy, which currently stands at 3 million.
The General Director of Immigration and Political Integration from the Ministry of Labour, Tatiana Esposito, has recently confirmed that the quota for 2019 is unlikely to change. She has suggested that those who are entering to carry out subordinate work should not exceed 6,000 units.
We are still waiting for the quota allowance to be confirmed from the Uffici di Gabinetto dei Ministri and for the signature of the President of the Consiglio dei Ministri. In the event that no decreto is released, the President of the Consiglio can rely on transitional provisions based on the Decreto Flussi 2018.
*statistics obtained from Ernst and Young
Italian language test for citizenship
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, 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.
Decreto Salvini – Legge 113/2018 – changes to law on Italian Citizenship
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).
ENGLISH TRANSLATION
Art. 14
(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”.
Permanent residence certificate
Permanent Residence:
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).
Art. 14.
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.
How can criminal convictions affect Italian Citizenship Applications?
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.
CASELAW – ITALIAN CITIZENSHIP – MARRIAGE TO FOREIGN NATIONAL
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
FACTS:
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.
ISSUES:
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.
THE LAW:
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.
HELD:
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.
CASELAW – ITALIAN CITIZENSHIP – DELAY IN DECISION BY CONSOLATO ITALIANO
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
FACTS:
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.
ISSUES:
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.
THE LAW:
- 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.
HELD:
- 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.
