CASELAW – ITALIAN CITIZENSHIP – LAWFUL RESIDENCE UP TO AGE 18
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.
Italian citizenship – the sad fate of Alfie Evans
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.
“British in Italy – Rights of British citizens in the EU post-Brexit”.
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 britsinitaly@gmail.com.
The church has allowed space for 50 attendees in total so first come first served!
Italian citizenship – proof of legal residence
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
British nationals applying for Italian citizenship
The largest group of foreign nationals applying for Italian Citizenship in the past year consists of British Citizens. Oliver & Partners has seen a sharp increase in enquiries and is currently assisting with a number of applications.
This development of course is in the aftermath of the triggering of Article 50 of the Lisbon Treaty by British Prime Minister Theresa May on 2 October 2016 following the Referendum on 23 June 2016, in which 51.9% of the British population who voted chose to leave the EU.
According to the Guardian newspaper: ‘at least 17,000 Britons sought citizenship of another EU member state in the year after the Brexit vote’. Considering that the UK is on course to leave the EU by the end of March 2019, it is clear that Britons (particularly those living or working in the UK) are making desperate bids to secure their positions in the EU via any route possible. In these uncertain times, some Britons now want to be both British and citizens of the EU, which perhaps was never a concern prior to June 2016. The future status of 1.36 million Britons who are residing in other EU member states remains unknown, despite terms on citizens rights being agreed in December 2017, which will only be incorporated in a final “deal”, ie the Withdrawal Agreement, if all other issues relating to the UK’s departure are agreed in the next few months.
Another bid to “remain European” has been launched by a group of British citizens living in Holland, “Brexpats Hear Our Voice”, which recently presented a claim to the Amsterdam District Court arguing that EU citizenship is a right that cannot be taken from them when the UK leaves the EU. Their contention is that: “Once an EU citizen, always an EU citizen” or “civis europeus sum”, to quote the phrase that once implied all the rights and duties of a citizen of ancient Rome.
The Dutch court agreed earlier this month to make a referral to the European Court of Justice on the question of whether EU citizenship can in fact stand in its own right, and this case is destined to have a important ramifications for the future of British citizens in the EU after Brexit.
Visa for investors in Italy
Visa for investors in Italy
A new immigration category was established in Italy in the 2017 budget legislation which allows for visas and residence permits (for up to 2 years) to be granted to investors.
This new law is aimed at non-EU nationals who intend to make a substantial long-term investment in Italy or make a philanthropic financial donation to benefit culture and research in this country.
The Italian Ministry for Economic Development published a report in December 2017 showing statistics relating to the number of applications made. The statistics also highlighted which countries these were mainly from, the number granted, the average age (36,8 years) and qualifications of the applicant (click link below):
An Investor visa can only be issued for a single investment, which falls into one of the following categories:
1) Government bonds issued by the Italian Republic (minimum 2,000,000 Euro)
2) Companies incorporated and operating in Italy (minimum 1,000,000 Euro)
3) Innovative startups (minimum 500,000 Euro)
4) Philanthropic donation (minimum 1,000,000 Euro)
The applicant must prove ownership of the financial resources allocated to the relevant investment or donation. Evidence of financial ownership is demonstrated by submitting bank account statements, which must prove that funds have been in the account for at least 30 days before the application was submitted.
If the funds are kept in the form of financial instruments including, but not limited to, shares in joint-stock companies, investments in Government bonds or pension funds documentation listing and describing the financial instruments held or acquired by the applicant in the three months prior to the application date must be produced.
In addition to providing documentation evidencing their investment, the applicant will be required to provide evidence that they have secured accommodation in Italy, evidence of their income from the previous financial year which exceeds the minimum threshold required by law and that they can afford healthcare expenses, which equate to 8,500 Euro.
As of 30th April 2019, the Italian Government has issued The “Growth” Act, which is a 10 year tax reduction scheme for non-EU investors who are ready to move to Italy to invest and work.
Applications for a “Nulla Osta al visto investitore” are made online via the wesbite: investorvisa.mise.gov.it. The application is then considered by members of the Investor visa for Italy Committee, which includes the Ministry of the Interior and the Italian Guardia di Finanza.
A decision should be made within 30 days and the visa collected from the consular authorities in the country where the application is made. Then on entry to Italy the applicant needs to apply for the permesso di soggiorno within 8 days. Within 3 months the investor needs to submit documents confirming the investment made (failure to comply can mean the visa is revoked). The 2 year period can be extended for a further 3 years, and is extendable to family members.
ELECTIVE RESIDENCE IN ITALY
An application can be made for an Elective Residence Permit (“Permesso di Soggiorno per Residenza Elettiva”), if the foreign resident wants to live in Italy without carrying out any working activity.
Aside from not being employed in Italy, adequate funds must be demonstrated in order to show that the applicant will not rely on the Italian State, for themselves as individuals, as well as for any dependant family members accompanying them.
The applicant must also have a guaranteed place to live, and demonstrate this via documentation.
Please ask for a copy of our Factsheet which contains information and guidelines for making this application.
Italian citizenship – the rights of EU nationals
Facing the possibile loss of European citizenship in the future as the UK discusses the withdrawal from membership of the EU, many British nationals are looking at the prospect of dual nationality with their state of residence. In Germany offers have even been made publicly since the Brexit Referendum to change the law to allow fast-track applications from British nationals living there, to end possible years of uncertainty over residence rights.
Any EU national resident in Italy for at least 4 years is entitled to apply for Italian citizenship, according to this legislation (follow link to the Foreign Office website): Law of 5th February 1992 n. 91 (Article 9.1 (d).
A grant of Italian citizenship will pass automatically to any children of the applicant, who live with him or her at the time – children over the age of 18 would have the right to renounce if they already hold another nationality.
Applications for citizenship can now be made on line via the website of the Home Office (Ministero dell’Interno).
