Italian citizenship lies between general principles and the normative framework.
In the field of international law, the request for legal assistance aimed at the recognition or settlement of disputes concerning citizenship-whether Italian or from any other intra- or extra-European country-is among the most frequent.
And that is why it becomes essential to know how to navigate the bureaucracy, even in the best way possible.
The general principles and normative framework are discussed in the following lines: As a general rule, almost all of the systems of different countries say that citizenship can be given based on either ius soli or ius sanguinis, which are not necessarily mutually exclusive or at odds with each other.
As for ius soli, it provides for the attribution of the citizenship of a particular state by the mere fact of being born in that state, leaving aside the citizenship of the parents and the regulations provided for the transmission of citizenship to the child. There's no doubt that the above principle can't always be put into practice because of extra rules or other conditions, but it still has to do with the fact that the child was born on the territory of the state.
A different approach is ius sanguinis, which provides for the attribution of citizenship by referring exclusively to direct descent from a person possessing the same citizenship. To exemplify: the father of Italian descent transmits Italian citizenship to his son regardless of the place where, factually, the birth event occurs. As with ius soli, this type of recognition may be subject to limitations but still remains connected to descent from an ancestor who possesses that particular citizenship.
Getting to the heart of the Italian matter, the principle of Italian citizenship based on ius sanguinis has always operated there, as provided for by Law No. 555 of 1912 and as confirmed by Law 92 of 1991-so much so that ius soli is provided for as a merely residual hypothesis, in order to avoid cases of statelessness.
Therefore, it can be said that in our country, Italian citizenship has always been granted and is granted on the basis of blood descent (iure sanguinis) without there being any generational limit with respect to the person claiming it. That is, Italian citizenship can also derive from an Italian citizen who is three or four generations "old" as long as he or she was born on Italian territory in the 19th century and died after March 17, 1861 (proclamation of the Kingdom of Italy).the 19th century and died after March 17, 1861 (proclamation of the Kingdom of Italy).
This all-Italian situation represents an innovation and a peculiarity compared to other states that favor the principle of ius sanguinis and recognize the possession of citizenship only up to a given generation going backwards. In Italy, in fact, no limits are set, and it is allowed to "go back" for the purpose of recognition as far as an Italian citizen born even more than 150 years ago. This approach, aimed at recognizing even the Italian origins of the most distant ancestor without time limits, inevitably presents a criticality in that it allows any non-European citizen today the right to claim possession of Italian citizenship, to obtain its recognition, and to enjoy the inevitable benefits that follow.
A clarification appears to be in order.
Where in the following we indicate recognition of Italian citizenship, it must be understood to be an abbreviated phraseology of the concept of "recognition by uninterrupted possession of Italian citizenship, of our status civitatis": it is necessary to recognize that a subject has always been an Italian citizen from the moment of his or her birth-when the Italian citizenship of a parent was transmitted-and that there has been possession that has never ceased.
And again. It is necessary to emphasize the difference between the recognition and acquisition of Italian citizenship. The latter is understood as a direct consequence of further hypotheses and possibilities provided by the legislation (e.g., the acquisition of Italian citizenship as a direct consequence of marriage celebrated with an Italian citizen).
All further hypotheses, in fact, are in a diametrically opposed position to that of the recognition of citizenship, representing a clear and precise limitation to the possibility of applying the more favorable solutions that are provided for those who have always been Italian citizens. In the case of the acquisition of Italian citizenship, only the provisions provided for that particular case should be applied, since the procedure provided for in Ministry of the Interior Circular No. k.28.1 of 1991 cannot be applied.
It is thus important to note that the paths of recognition and acquisition of citizenship are not the same and are governed by different regulations: while in the case of acquisition, the indications contained in Law 91/92 must be followed, particularly as regards the procedure aimed at issuing the measure to be transcribed in the citizenship registers, recognition does not require a final act of attestation because confirmation is sufficient.
However, there is more.
In the Ministry of the Interior's Ceimario, in paragraph 4.1, para. 6, the uselessness of the attestation is distinctly indicated insofar as it states that "documentation formed abroad attached to the petition for the recognition of Italian citizenship (according to the combined provisions of Art. 1 of L. 91/92 and Art. 16, paragraph 8, of Presidential Decree 572/1993) must be legalized, unless exempt under international conventions ratified by Italy, and provided with an official translation into Italian."
In the case of recognizing Italian citizenship, the Ministry itself says that the certificate is not needed.
On the basis of what has been said above, it is impossible to fall into confusion between acquisition and recognition since - in the latter case - we are faced with a subject who has been an Italian citizen since birth, who requests to be recognized as such, and to whom absolutely none of the provisions provided for the acquisition of Italian citizenship referred to in Law 91/92 referring to a subject originally in possession of another citizenship can be applied.
The disparity between the two cases is also manifest from a legal point of view: in fact, in the case of ius sanguinis, pursuant to Article 19 of Law 218/1995, only and exclusively Italian law will be applied, while in the case of the acquisition of citizenship, it will be necessary to evaluate the application of Italian or foreign law according to what is governed by private international law.
To get to the heart of the normative framework of reference, one cannot avoid considering all the relevant provisions.
First and foremost, L. 555/1912, containing the rules on Italian citizenship, was fully applicable until L. 91/92 came into force and is still fully applicable to all events that occurred during its period of force. To understand whether a subject can consider himself an Italian citizen, it is necessary to determine whether he was born in Italy or if he became Italian later in life, that is, whether citizenship was passed down through descent or acquired as a direct result of certain circumstances.
In line with the Constitutional Court's ruling No. 30/1983, Article 1 of Law 555/1912 is declared unconstitutional insofar as it said that Italian citizenship could only be passed down through the father's line, even though it also said that it could be passed down through the mother's line. Children of Italian mothers who were born after January 1, 1948, get Italian citizenship by the same rules that apply to children of Italian fathers.
It is then recalled that L. 123/1983, through which the principles contained in the judgment mentioned in the previous concept are implemented for all those who had reached the age of majority at the time L. 123/1983 came into force, In particular, Article 5 states that "the minor child, including adopted, of a citizen father or citizen mother is an Italian citizen." "In the case of dual citizenship, the child shall opt for only one citizenship within one year of reaching the age of majority." Those who held one or more citizenships by descent and were minors at the time L. 123/1983 came into force were required until May 17, 1986, to make the option as provided in paragraph 2 of Article 5 of the same law ("In the case of dual citizenship, the child shall opt for only one citizenship within one year of attaining majority"). The deadline for the right of option was procrastinated by L. 180/1986, which also conferred the possibility-for those who had lost their citizenship due to non-option-to regain it through a special declaration.
The Circular of the Ministry of the Interior No. K.28.1 of 1991 is interesting because it turned out to be a valuable and necessary tool for figuring out the requirements and steps needed to prove that a person has always been a citizen.
So, L. 92/1991 is considered the current rule on citizenship, and it applies to anyone with an Italian ancestor who was born after the law went into effect, even if they want to get their citizenship recognized.
In the final analysis, Ministry of the Interior Circular No. 28/2002, Ministry of the Interior Circular No. 32/2007, and Supreme Court Ruling No. 4466/2009 deserve attention.
The former regulates the registration of descendants of Italian citizens by birth-holders of a residence permit-in the registry registers, regardless of the duration of the permit and the title for which it was granted ("a foreign citizen of Italian origin can obtain residence in an Italian municipality also by producing a tourist residence permit and documentation, translated and legalized, proving Italian origins iure sanguinis"). As a consequence of this registration, the person will obtain the transformation of the tourist residence permit into one bearing the reason "pending recognition of Italian citizenship."
Circular No. 32/2007 states that foreigners who do not come from the Schengen Area (the 26 European states that, under the Schengen acquis, after abolishing checks on persons at the common borders, replaced them with a single external border that allowed them to function, from the point of view of international travel, as a single country), must formulate the declaration of their presence to the Questore within 8 days of entry.
This receipt not only allows the foreigner to stay regularly in Italy for a period of 3 months but also constitutes a useful title for the purposes of civil registration for those who intend to initiate the procedure for the recognition of Italian citizenship.
To conclude, we recall Supreme Court ruling No. 4466/2009, which establishes the right to recognition of citizenship solely through the judicial route, including children of Italian citizens born before January 1, 1948.
Abogado Sarah Silvestri
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