Italian Citizenship Minor Issue – Circolare 43347 -Complete Guide to Legal Challenges

UPDATE of 10/20/24: It is anticipated that a new ruling will be forthcoming soon, which will address the question raised by the Circolare 43347 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

---

If you’re facing the Italian citizenship minor issue, while claiming dual citizenship jure sanguinis, here’s what you need to know.

Italian citizenship law can be a bit of a maze, especially when it comes to how a parent’s decision to become a U.S. citizen might affect their child’s Italian citizenship.

The New Circolare 43347 on the Minor Issue: A Game-Changer in Italian Citizenship

So you’ve got your documents ready, legal analyses, historical records, the whole shebang. You’re ready to apply for it.

Then you come across this new development that’s got everyone talking, this whole thing about a parent’s naturalization, and how it affects their child’s Italian citizenship.

You probably already heard of the new “circolare 43347”. It’s at the heart of your questions. It’s understandable why it’s confusing. It’s this directive from the Ministry of the Interior of October 3rd 2024, and people want to know how it can actually change the legal reality for folks like you who are trying to get their Italian citizenship.

We’re talking about how a directive, which isn’t even a law, can have such a big impact on people’s lives!

A “circolare” might sound kind of official, but it’s not like a law passed by parliament. It’s more like a powerful memo from the top, basically telling Italian municipalities, “Hey, this is how you should be interpreting and using the citizenship law.”

So it’s not law, but everyone’s supposed to follow it.

Understanding the Minor Issue in Italian Citizenship

The minor issue is a key concept in Italian citizenship law, particularly for individuals born in jus soli countries like the U.S. Historically, if a child was born in the U.S. (or any jus soli country), they retained their Italian citizenship—even if their parent became a U.S. citizen while they were still a minor.

Traditionally, this applied especially to children born after 1912. For example, if your father became a U.S. citizen before you turned 21, the common belief was that you still retained your Italian citizenship p. However, this new circolare changes that long-standing understanding.

Understanding the Legal Basis: Law 555 from 1912

To really get why this is such a big deal, we’ve got to go back to the source. Law 555 from 1912, articles 7 and 12, seem to be at the at the heart of the Italian citizenship minor issue.

Imagine it like this: we’ve got these two articles, and they’re in this kind of legal tug of war over Italian citizenship. And for a while it seemed like one side had the upper hand, but now things are changing.

Let’s break this down. What do these articles actually say? What makes them so important?

• Article 7: This law says that if you were born in a jus soli country (like the U.S.), you maintain your Italian citizenship until you renounce it as an adult, usually at age 21.
• Article 12: However, Article 12 states that if a child is a minor and their parent naturalizes in another country, the child loses their Italian citizenship if they are still under the parent’s legal authority. See the conflict?

Article 7 vs Article 12: What you need to Know

The conflict comes from Article 12, specifically Article 12, Paragraph 2. That’s where things get messy. It says that if a child is a minor o isn’t emancipated, meaning they’re still legally under their parent’s authority, then they’ll lose their Italian citizenship if their parent becomes a citizen of a different country. It’s like these articles are written in different languages. Even though they’re both about Italian citizenship, no wonder it’s caused so much confusion.

And for the longest time, the common belief was that Article 7, the onae specifically about children born in jus soli countries, trumped Article 12. But there have been a couple of court decisions lately that have given more weight to Article 12, which is probably why the ministry put out this directive in the first place.

Recent Court Decisions and How They Impact the Minor Issue

There are two rulings from the Corte Suprema di Cassazione, Italy’s highest court, that are important here. The first one, case number 17161 of 2023, just briefly mentioned that Article 12 takes precedence over Article 7. But the second one, case number 454 of 2024, really dug deep and solidified this new interpretation of this 1912 law. That’s the one that’s got everyone talking and probably influenced the ministry quite a bit.

So, even though these rulings aren’t legally binding for every case, they still carry enough weight to change how the law is being understood, which explains why this Circolare is causing such a stir. It’s like everyone’s looking to the Circolare to figure out what to do next. 

Alternative Solutions to Claim Italian Citizenship

But even with this new take on the minor issue, it doesn’t necessarily mean you’re out of luck when it comes to Italian citizenship.

There could be other ways to claim citizenship, other paths you could look into. Let’s dive into them:

• 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.
• 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.
• 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.

Claiming Citizenship through the Maternal Line

If your female ancestor (for example you great grandmother) was an Italian citizen when your grandfather was born before 1948, you might be able to claim citizenship through her, even if your great grandfather became a U.S. citizen before your grandfather turned 21.

It’s interesting that even though this whole debate is about the father’s citizenship, going through the mother’s side might be a good workaround for many situations. But why 1948? What’s so special about that year?

Before 1948, under the law of the times Italian citizenship was passed down through the father. But then the Italian constitution came along that year and things changed. It was recognized (in 1975 and 1983 rulings) that mothers have an equal right to pass on citizenship.

It really goes to show you never know what detail might be crucial when you’re tracing back your family history. So We’ve got that option.

Are there any other situations where this circular might not completely derail things?

The Early Marriage Loophole

There might be one more, though it depends. Remember how we talked about Article 12, the one causing all this fuss, and how it mentions unemancipated minors? Well, there’s this thing, a specific situation where a minor wouldn’t be considered unemancipated anymore.

We’re talking about getting married young. According to Italian law, if I was married before I turned 21, and this is key, before my parent naturalized, then I was considered emancipated. Say someone’s father became a U.S. citizen while they were still underage, but they were already married before that happened. That means they might still have a shot at Italian citizenship.

That’s the idea. But,this whole interpretation, it hasn’t really been tested much in court, so it’s like a possible loophole, but no guarantees it’ll work. It’s like finding a secret passage in the citizenship maze, but we don’t know if it leads to a dead end or not.

It really makes you realize how important it is do your homework, learn about your family history, and understand all the ins and outs of these laws. Dates, events, everything matters.

Even though this minor issue and the circular have thrown a curveball, it doesn’t mean my Italian citizenship dreams are over. Not at all. The takeaway here is, don’t give up, keep digging. And hey, it might not be a bad idea to talk to an expert. someone who really knows the ins and outs of Italian citizenship law. They can help me navigate all this and figure out the best way to move forward.

The Judicial Petition as an Alternative

In the current ever-changing landscape of Italian citizenship, a significant opportunity is emerging through the Italian judicial system for those who are no longer able to apply to a consulate or town hall because of this new Circolare. In fact, while Italian consulates and municipalities are strictly applying the new interpretation of the law on the “question of minors”, Italian courts are maintaining their own interpretive autonomy with regard to the Italian citizenship law.
The possibility of applying to the Italian courts, before the Circolare, was open mainly in two other scenarios: when the waiting time at the consulates exceeds 730 days, and in cases where there is an ancestor who 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 exclude a sudden change in the trend in the short term.

The Bigger Picture: Circolari and Italian Legal System

Then there is this whole Circolare thing, it’s not just an Italian citizenship minor issue law thing. It points to something bigger happening in the Italian legal system. It’s this idea of using these directives to clarify and shape how laws are interpreted.

Circolari pop up in other areas of law too, like healthcare and immigration. It’s all part of this concept where you’re expected to follow the directive unless you’ve got a good legal reason not to. And this whole reliance on Circolari , what they call soft law, it’s a pretty hot topic in legal circles these days. 

Some people think the ministries are abusing this soft law power substituting the constitutional holder of the legislative power, the Italian parliament. Especially when the legal rationale behind the Circolare is not the law and its correct interpretation, but a Supreme Court ruling, expression of the judicial power, moreover extremely controversial and, for many, erroneous.

So it’s not just about your situation with citizenship. It’s about a bigger trend in how laws are understood and used in Italy. 

But it does raise questions about transparency and legitimacy. You know, how can people be sure about what the rules are if they’re always and suddenly being kind of tweaked and clarified through these directives? It can make things feel a little unpredictable – and unjust. If the rules are always changing, how can people know where they stand? That’s the debate, and it’s a big one, especially in my case, where something as personal and life-changing as citizenship is on the line.

See, while digging into this we’ve peeled back a layer and found a whole other level of complexity to this Circolare issue. It’s interesting, isn’t it? 

We’ve seen how these directives can make things smoother, provide clarity, but there’s also this chance they create a situation where the goalposts keep moving. So I’m wondering, is this whole reliance on these administrative directives, while maybe efficient, kind of chipping away at the whole idea of legal certainty in the Italian system, as seen in the Italian citizenship minor issue?

That’s a really deep question, and it’s one that legal experts are really wrestling with right now. It comes down to this balance between getting things done and knowing what to expect. Circolari, like we’ve been discussing, they let the system react quickly to new situations, new ways of looking at the law, which can be a good thing, especially in a world that’s constantly in flux.

But then again, how can you plan for the future if the ground is always shifting?

Don’t Give Up on Your Italian Citizenship Dreams

If I take away one thing from this post today, let it be this: don’t throw in the towel on Italian citizenship dreams. This new circolare might seem like a roadblock, but remember that its legitimacy is questionable and it might soon change in the future.

And remember, a good expert, someone specializing in Italian citizenship law, can offer personalized guidance based on my specific situation. Never underestimate the power of expertise, especially in these intricate legal matters. Knowledge is power, especially when navigating the choppy waters of, well, any legal process, but especially Italian citizenship.