The new Circolare Italian Citizenship with Minor Issue, dated October 3rd, n° 43347 by Ministero dell’Interno, threatens all future (and, possibly) pending applications for citizenship with a “minor issue” filed in Italian town halls.

Fortunately, completed applications are not affected as the circolare explicitly excludes them.

I believe that this Circolare is probably illegitimate and will lead to even more appeals, something that the Italian Ministero certainly did not expect to cause!

It is anticipated that a new ruling will be forthcoming soon, which will address the question of the proper application of Articles 7 and 12 of Law 555 of 1912 to cases of children born abroad in a jus soli case whose parent became naturalised during their minority. I’ll keep you posted on this blog and on my youtube channel, of course

Here below, you will find:

• a short video in which I summarise the news
• an easy-to-read guide to the new legal challenges posed by the Circolare.
• a FAQ
• the English translation of the Circolare
• its PDF version (both original and translated)
• a contact form to get in touch with me (attorney Michele Vitale) to discuss your case

Italian Citizenship Minor Issue: Recent Changes and Solutions

Obtaining Italian citizenship jure sanguinis is a dream for many, but recent legal developments have complicated the process, especially for those facing the so-called “minor issue.”

Understanding the New Interpretation

It was previously believed that a child born in a jus soli country, such as the United States, retained Italian citizenship even if their parent acquired American citizenship while they were still a minor. However, a new “circolare” from the Ministry of the Interior has changed this interpretation, giving greater weight to Article 12 of Law 555 of 1912, which provides for the loss of Italian citizenship for the minor if the parent naturalizes in another country.

This circular, while not a law, has a strong impact on people’s lives, influencing how Italian municipalities interpret the citizenship law. Its issuance was influenced by recent rulings of the Supreme Court of Cassation, which favored Article 12 over Article 7, which guaranteed the retention of Italian citizenship until renunciation by the adult subject.

Possible Solutions for Italian Citizenship Minor Issue

Despite this change, there is still hope. There are still possible solutions for those who wish to obtain Italian citizenship:

• 1948 Case: One can claim citizenship through the maternal line, taking advantage of the 1948 law that recognizes the equal rights of mother and father in the transmission of citizenship.
• Marriage Loophole: Another possibility is the so-called “marriage loophole”, which considers emancipated a person married before the age of 21 and before the naturalisation of the parents. However, this last option does not yet have a solid legal basis.
• Challenging the refusal through an administrative appeal: If the municipality (or the consulate) decides to reject an application, the applicant must receive a “notice of rejection”, which indicates the administration’s intention not to grant citizenship. At this point, the applicant has 10 days to submit a defence in which he or she can contest the reasons for the rejection and provide additional documents to support his or her claim.If, after submitting the defence, the town hall confirms the refusal, the applicant can then appeal to the Tribunale Amministrativo regionale (TAR – Regional Administrative Court) within 60 days of the notification of the final decision. For now, I would not advise everyone to challenge the town hall’s decision in every case, at least until we get the first comforting TAR rulings on the matter. It is true, on the one hand, that given the very particular (and, in my view, unlawful) circumstances in which the circular was issued, there is a reasonable chance of winning the case at the TAR. On the other hand, there are other alternatives, as this and the next paragraphs shows, which may be more reasonable/cost effective to pursue.
• Apply by judicial petition: Those who can no longer apply to a consulate or town hall because of this new Circolare, now have the option (which wasn’t generally available before) of applying through the Italian judicial system. In fact, while Italian consulates and municipalities will strictly apply the new interpretation of the law on the “question of minors”, Italian courts maintain their own interpretive autonomy with regard to Italian citizenship law.

Current Situation of Judicial Petitions

Despite the uncertainty generated by the circular, so far most judicial appeals concerning the minor issue have been accepted by the Italian regional courts.

Out of the 165 Italian local courts (tribunali ordinari) in only 5 rejection of minor issue cases have been reported (namely Rome, Messina, Palermo, L’Aquila, Ancona).

The possibility of applying to the Italian courts, before the Circolare, was open only in two other scenarios: when the waiting time at the consulates exceeds 730 days, and in cases where a female ancestor gave birth to her offspring before 1948. This route, which involves some procedural complexities, shows positive results in the majority of cases presented and there is no reason to expect a sudden change in the trend in the short term.

Other kind of legal cases, like those involving women who lost their Italian citizenship due to their husband’s naturalization before 1922 (pre-Cable Act), or cases where the Italian ancestor never naturalized or did so after the child’s majority, will not be impacted whatsoever by the circolare 43347 and have the same high likelyhood of success than before October 2024.

It is important to emphasize that the issue of circulars is a broader problem in the Italian legal system. These documents, used in various areas (lately, especially during the COVID crisis), aim to clarify the interpretation of laws, but some legal experts argue that this practice may undermine transparency and legal certainty.

Therefore, if you have a pending case or are thinking of filing an appeal for Italian citizenship, don’t panic and move on. The path to obtaining Italian citizenship can be complex, but not impossible. It is essential to rely on an expert in Italian citizenship law who can guide you through the intricate laws and recent interpretations, helping you identify the best strategy for your specific case.

Frequently Asked Questions

What is the minor issue in Italian citizenship?

The minor issue refers to the recent interpretation that a child may lose their Italian citizenship if their parent naturalizes in another country while the child is still a minor, even if born in a jus soli country.

Can I still claim Italian citizenship if affected by the minor issue?

Yes, there are still potential solutions, such as claiming citizenship through the 1948 case or exploring other legal avenues.

As an additional route, it is always possible to challenge the town hall) or consulate rejections. It’s best to consult with an expert in Italian citizenship law for your specific case.

How has the new circular affected Italian citizenship applications?

The new circular has made it more challenging for some individuals to claim Italian citizenship, particularly those affected by the minor issue. However, most courts are still approving cases related to this issue.

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ENGLISH TRANSLATION OF THE CIRCOLARE 43347

SUBJECT: Recognition of Italian Citizenship Iure Sanguinis – New Lines of Interpretation Dictated by Recent Decisions of the Supreme Court

In relation to the procedure for the recognition of Italian citizenship iure sanguinis, it is deemed appropriate to present the new interpretative lines dictated by recent rulings of the Supreme Court of Cassation. This is also in light of numerous queries received on the subject from Prefectures as well as directly from municipalities.

1. Relationship between Article 7 and Article 12 of Law No. 555 of 1912

As is well known, certain provisions of the former Law No. 555/1912, although repealed, are still relevant today for clarifying the fate of citizenship that occurred prior to the enactment of Law No. 91/1992. This is to ascertain whether it is possible to recognize Italian citizenship based on the uninterrupted transmission of the same to descendants of Italian citizens claiming our status civitatis.

In particular, the problem concerns the relationship between Article 7 of Law No. 555/1912 (regulating cases of dual citizenship for those born in countries granting citizenship iure soli) and Article 12, second paragraph, of the same law. The latter provides: “Unemancipated minor children of those who lose their citizenship shall become aliens, when they have common residence with the parent exercising parental authority or legal guardianship, and acquire the citizenship of a foreign state. However, the provisions of Articles 3 and 9 shall be applicable to them.”

In this regard, new lines of interpretation have recently emerged from the Supreme Court of Cassation (Cass. civ. Sec. I, Ord., no. 454/2024 and no. 17161/2023). These rulings pertain to appeals brought by foreign citizens seeking recognition of their status civitatis by virtue of alleged descent from Italian ancestors.

In the cases in question, the ancestor lost Italian citizenship by choosing to naturalize as a foreign citizen. Consequently, the son (who was a minor at the time) simultaneously acquired Italian citizenship iure sanguinis by paternal derivation and foreign citizenship iure soli. However, the son did not express the will to reacquire Italian citizenship pursuant to Article 12 of Law No. 555/1912, as the other conditions set forth in Article 9 of the same law do not apply.

The Supreme Council stated: “Ultimately, Law no. 555/1912 recognizes dual citizenship in the following terms: a son of an Italian citizen born abroad could simultaneously acquire Italian citizenship iure sanguinis and the citizenship of the place of birth iure soli, and in that case, he was entitled to retain dual citizenship, remaining to all intents and purposes an Italian citizen, unless he renounced it as an adult. Unless – while he was underage – the cohabiting father lost his Italian citizenship, and specifically, in the case of naturalization, by an act of voluntary impulse, that is, by reason of a decision which, insofar as it was adopted by the ‘head of the family’ holder of parental authority, also produced effects in the legal sphere of the children to minors subject to him. This is the only possible interpretation of the normative text, because of the literal criterion, but also having regard to its ratio legis, since it is clearly aimed at preserving the unity of citizenship within the same family, in the terms in which it was understood in both 1865 and 1912, namely, as a community in which there was identifiable a ‘head of the family’ who had parental authority over minors, assumed responsibility for protecting the minus habens (wife and children) and made decisions that bound everyone; and provided that the family unit was effective, by reason of common residence.” (Cass. civ. Sec. I, Ord., No. 454/2024).

It follows, therefore, that following the voluntary naturalization (during the minor age of the dual citizen at birth) of the parent cohabiting with him or her, the lines of transmission are to be considered interrupted where the ascendant in question has not reacquired Italian citizenship once he or she comes of age. In such cases, failure to regain Italian citizenship prevents the ability to transmit our status civitatis to one’s line of descendants.

To promptly adjust administrative action to the aforementioned clear jurisprudential indications, it is believed that, within the framework of the analysis of applications for iure sanguinis citizenship, the new orientation and the consequent lines of interpretation can be taken into account as of now.

Therefore, during the preliminary analysis of applications for citizenship iure sanguinis potentially affected by the interruptive event in question, the applicant must produce evidence of the reacquisition of Italian citizenship by the ancestor who lost Italian citizenship as a minor due to the voluntary naturalization of the parent, even if he or she already held foreign citizenship for having been born in a country where the criterion for the granting of citizenship iure soli is in force.

The “non-naturalization” document, issued by the competent Authorities of the foreign State of emigration (with an official translation into Italian language as per point 5) of Circular K.28.1/1991) must therefore certify that the Italian ancestor who emigrated from Italy did not voluntarily acquire the citizenship of the foreign State of emigration. Conversely, if the ancestor voluntarily acquired foreign citizenship, the document will have to certify the date of his or her naturalization in order to ascertain that the naturalization itself occurred during the descendant’s minor age (and no longer only prior to the descendant’s birth).

In case there is a loss of Italian citizenship under Article 12, second paragraph, of Law No. 555/1912 of one of the ascendants of the claimant of Italian status civitatis, in order to be able to recognize this status it will be necessary for the claimant to produce the documentation proving the reacquisition of Italian citizenship in accordance with Articles 3 or 9 of Law No. 555/1912 at the Civil Status Offices in Italy or abroad of the place to which the ascendant transferred his or her residence, provided that the reacquisition of Italian citizenship by the ascendant occurred before the birth of his or her descendants in the direct line.

However, rights already acquired by third parties are not affected.

2. Effective date of acquisition of citizenship by those who have been recognized by an Italian citizen or whose filiation has been judicially declared in the course of their majority.

Regarding the effective date of acquisition of Italian citizenship for one who is recognized or judicially declared the child of a parent of Italian during the age of majority and has made, within the terms of legislation, the election of Italian citizenship, the following should be represented.

As is well known, this hypothesis of the acquisition of citizenship, hitherto counted among those by way of derivation, is currently regulated by Article 2, paragraph 2, of Law No. 91/1992.

In the silence of the law, the acquisition of Italian citizenship in such cases has always been understood as taking effect from the day following the manifestation of the interested party’s willingness to become an Italian citizen, considering applicable, also to the aforementioned cases, art. 15 of Law n. 91/1992, according to which “The acquisition or reacquisition of citizenship takes effect, except as established in art. 13, paragraph 3, from the day following the day in which the conditions and formalities requested are fulfilled.”

On this point, the Supreme Court in Decision No. 5518/2024 came to a different interpretation, relying on the absolute equality of the status of children recognized at the time of birth and those who become so after reaching the age of majority.

More specifically, the Court had occasion to specify that: “An adult or recognized or declared child of an Italian citizen does not acquire a different status from that of the child of an Italian citizen duly married and born in constancy of marriage. He is Italian because he is the child of an Italian citizen iure sanguinis and in his original capacity.” According to the Supreme Council, therefore, “there is therefore no need for ad hoc regulation of the commencement of the effect, already regulated by art. 1 in general […] Art. 2, paragraph 2, introduces a potestative condition precedent, which, if realized, produces the same effect as the acquisition iure sanguinis, as is the case for the recognized minor child or the child born in constancy of marriage.”

Therefore, the act of election, rather than having a constitutive character in the matter of the acquisition of citizenship, has the function of protecting the self-determination of the individual, who could decide whether or not to be invested with our status civitatis as a result of the recognition of filiation.

Henceforth, therefore, the aforementioned act of election—which obviously remains a condition for the attribution of citizenship iure sanguinis in these cases—shall no longer be taken as a reference for the purposes of the starting date of the acquisition of Italian citizenship, having rather to consider that said acquisition (also in the case history under consideration) retroactive to birth, thus affecting any descendants.

In light of the above, it is therefore necessary to specify that for the purpose of reconstructing the line of transmission of citizenship iure sanguinis, in all cases of filiation out of wedlock, the deed or judicial declaration of recognition of the filiation relationship between the interested party or ascendant and the parent who is already an Italian citizen who transmits such citizenship iure sanguinis must be acquired, ascertaining the possible occurrence of the conditions of Art. 2 of Law No. 91/1992 (as well as of Art. 2 of Law No. 555/1912, in case the case under consideration concerns an ascendant recipient of the provisions of the former law).

3. Uninterrupted possession of child status.

Finally, it is considered appropriate to clarify the scope of application of the principles enunciated by the Court of Cassation in Judgment No. 14194 of May 22, 2024 regarding a iure sanguinis case that had been rejected by the civil status office due to the inability of the petitioners to produce a birth certificate of their Italian ancestor, i.e., of the ancestor in the direct line whose citizenship they claimed. In the aforementioned ruling, it was affirmed that posthumous recognition, made in the marriage act, is in itself foundational to the continuous possession of child status and suitable for proving paternity and the consequent transmission of Italian citizenship.

The Supreme Court has made it clear that it is possible to make up for the lack of and/or defect in the birth certificate or related indications of paternity and maternity in it through Article 237 of the Civil Code, according to which: “The possession of status results from a series of facts which together serve to prove the relations of filiation and kinship between a person and the family to which he or she claims to belong. In each case the following facts must concur: that the parent has treated the person as a child and has provided in that capacity for the maintenance, upbringing and placement of the person; that the person has been consistently regarded as such in social relations; and that the person has been recognized in that capacity by the family.”

As is well known, this rule can be applied only as a subsidiary to Article 236, first paragraph, of the Civil Code, in the mind of which filiation is proved by the birth certificate entered in the civil status registers; pursuant to the second paragraph of the same article, only in the absence of the birth certificate may recourse be had to the continuous possession of child status.

In any case, the opinion is expressed that the application of this provision does not appear to be extensible to proceedings of an administrative nature as well, since the administrative authority is not responsible for the substantive recognition of the status civitatis personae (the responsibility of the ordinary judiciary) because it has only certifying powers regarding the possession of citizenship iure sanguinis, to be attested through documents that unequivocally prove ownership without interruption between generations.

In light of the above, it is believed that this principle can only be enforced in the courts.

SS.LL. is requested to represent the above to the mayors and registrars of municipalities in their respective provinces in order to bring administrative action in line with the most recent guidelines of the Supreme Court.

ENGLISH PDF VERSION

ITALIAN ORIGINAL PDF VERSION