Italian Citizenship by Descent: Analyzing the TAR Appeal on the “Benefit of Law” Circular
By Avv. Michele Vitale
The landscape of Italian citizenship by descent is once again the arena for pivotal legal battles. An interesting appeal has been lodged at the Regional Administrative Court of Lazio (TAR Lazio) against the Ministry of the Interior’s circular no. 26185, dated May 28, 2025. This case, docketed under number 8883, is set for a public hearing on November 12, 2025, and raises questions about the rights of minors born abroad to Italian parents.
The Heart of the Controversy: A New Citizenship Category?
To grasp the full scope of this appeal, we must look at the recent legislative changes. Law-decree no. 36 of March 28, 2025, which was converted into Law no. 74 of May 23, 2025, fundamentally altered Italy’s core citizenship law (Law no. 91/1992). The new legislation ended automatic citizenship for many born abroad and introduced a new process for minor children of Italian citizens, requiring a formal declaration and residency.
Days after the law passed, the Ministry of the Interior issued the contested circular to provide operational guidance. The central argument of the appeal is that this circular illegitimately created a new category of citizenship called “Italian by benefit of law” (per beneficio di legge), a term that does not appear in the text of the new law.
While the expression “benefit of law” is indeed an interpretive formula from the Ministry, it’s not novel. Legal doctrine has long used it to describe citizenship acquisitions under Article 4 of the 1992 law that are not automatic but require an explicit choice. The 2025 reform effectively moved the case of minors born abroad from the automaticity of Article 1 to the declaration-based system of Article 4.
Key Arguments in the Appeal
The appeal rests on several critical legal arguments, each with varying degrees of strength.
1. Lack of Legislative Basis
The appellants claim the circular imposes limits not found in the law. However, this argument is weakened by the fact that Law 74/2025 itself introduced the declaration requirement in the new Article 4, paragraph 1-bis. The circular, in this view, is merely instructing officials on how to apply a rule already established by Parliament.
2. Violation of Constitutional Principles
A more potent argument is the alleged violation of constitutional rights, including equality and respect for international treaties. This critique, however, is more accurately aimed at the primary law rather than the circular. Indeed, the constitutional legitimacy of the new law is already under intense scrutiny, with the Court of Turin having referred questions to the Constitutional Court. More recently, the Court of Mantua raised a similar challenge, signaling a growing judicial pushback.
3. Unconstitutional Retroactivity
The risk of applying these new, restrictive rules to situations consolidated under previous legislation is a major concern. This point is one of the most critical aspects of the reform. However, the Court of Campobasso (judgment no. 375/2025) has already ruled against the retroactive application of the decree-law to pending applications, upholding the principle of non-retroactivity.
Analysis of the Appeal’s Merits and Potential Outcomes
The success of the appeal at the TAR depends on a crucial distinction: is the problem the circular itself, or the law it interprets?
The TAR’s role is to annul illegitimate administrative acts. If the circular merely interprets and applies the rules from Law 74/2025, it will be difficult to challenge its legality. The core limitations—the declaration, residency, and time limits—stem directly from the law passed by Parliament, not from the circular.
Because the TAR cannot rule on a law’s constitutionality, three scenarios are possible:
- Dismissal or Inadmissibility: The court could find that the complaints are fundamentally about Law 74/2025, not the circular, and dismiss the case.
- Partial Acceptance: The TAR could annul specific parts of the circular if it finds any provisions that add requirements not explicitly mentioned in the law.
- Referral to the Constitutional Court: The most significant outcome. The TAR could agree that the underlying law raises serious constitutional questions and refer the case to the Constitutional Court, joining other courts in seeking a definitive ruling on the new law’s constitutional legitimacy.
The upcoming hearing on November 12, 2025, will be a critical moment, revealing the direction the administrative court will take in this complex and vital matter for thousands pursuing their Italian citizenship by descent.
Frequently Asked Questions (FAQ)
What is the impact of Law No. 74/2025 on Italian citizenship for minors?
Law no. 74 of May 23, 2025, significantly changed the rules for minors born abroad to Italian citizens. It removed the automatic acquisition of citizenship by descent (jure sanguinis) and introduced a new mechanism under Article 4 of Law 91/1992. Parents must now submit a formal declaration and meet residency requirements for their minor child to be recognized as Italian.
What does ‘acquisition by benefit of law’ mean for citizenship applicants?
The term ‘by benefit of law’ (beneficio di legge) is an administrative classification used to describe cases where citizenship is not granted automatically at birth but requires a specific action or declaration from the applicant. The Ministry of the Interior’s circular applied this term to the new process for minors, making it a point of legal contention in the TAR appeal.
Can an administrative circular be challenged in court?
Yes, administrative acts like ministerial circulars can be challenged in an administrative court, such as the TAR (Regional Administrative Court). The appeal can argue that the circular oversteps its interpretive authority, introduces rules not supported by primary law, or violates constitutional principles. The court can then annul the circular, accept it partially, or refer the underlying law to the Constitutional Court if it suspects unconstitutionality.
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