For those seeking to claim their Italian dual citizenship jure sanguinis (citizenship by descent), the path can sometimes involve unexpected twists and turns – especially in cases where an ancestor naturalized as a U.S. citizen while their child was still a minor. Recent updates and Italian court rulings have shed light on how these “minor ancestor” situations are being handled by the Italian legal system.

Background and Overview

There has been a long history of evolving Italian citizenship laws, with some of the foundational principles laid out in the Civil Code of 1865 regarding how citizenship is acquired, maintained or lost – especially for minor children. More recent reforms like the 1912 law and 1983 Constitutional Court ruling further shaped the rules around gender equality and dual citizenship scenarios. However, one particularly complex area has been cases where an Italian-born ancestor naturalized as a U.S. citizen while their child was still a minor.

We’re talking here of a subcategory of the so called “1948 cases” i.e. those cases involving a female ancestor in the citizenship line giving birth before 1948. Such cases, indeed, notoriously require applying through Italian Court, which may be affected by the rulings cited below. Ordinary jus sanguinis cases are not affected, because Consulate and Italian town hall are bound to the letter of the law and not to the jurisprudence.

Historical Treatment of Minor Cases

The Italian Civil Code of 1865 was a landmark legislation that established crucial principles concerning Italian citizenship. The code introduced the notion of single citizenship and recognized that a family’s citizenship was derived from the father. Article 4 of the code succinctly stated, “È cittadino il figlio di padre cittadino” (The child of an Italian father is also Italian). However, Italian citizenship was forfeited if an individual acquired citizenship in another country. In such instances, the spouse and minor children of the person losing citizenship would become foreigners unless they maintained their residence in Italy.

In essence, the 1865 law can be summarized by three fundamental principles:

1. Italian citizenship is inherited by children born to Italian citizen fathers.
2. Being born in countries that adhere to the principle of ius soli (citizenship by place of birth) does not automatically lead to the loss of Italian citizenship.
3. Italian children living with their fathers, or those who later join their fathers’ households, forfeit their citizenship when their fathers become naturalized, irrespective of the child’s birthplace.

These core principles are of utmost importance, as they not only served as the foundation for numerous decisions in 1948 cases but also play a pivotal role in the recent ruling by the Court of Cassation.

Italian law no. 555 of 1912, in a way confirmed this principle , stating that if an Italian father naturalized abroad, his non-emancipated minor children residing with him would also lose their Italian citizenship under Article 12(2). This upheld the concept of unified family citizenship stemming from the 1865 Civil Code.

On the other hand, Article 7 of the same 1912 law stated that Italians born and residing abroad retained their citizenship until age of majority, unless they renounced it. This was seen as protecting minors with dual jure soli (citizenship by birthplace) citizenship.

For decades, the prevailing interpretation by Italian authorities was that Article 7 took precedence over Article 12(2) for minor cases – preserving the citizenship of children until adulthood even if their parent(s) naturalized while they were minors.

Recent Court Rulings on Minor Cases

In June 2023, a groundbreaking Court of Cassation (Supreme Court) decision no. 17161 challenged this long-standing practice. It ruled that Article 12(2) should take priority, meaning any Italian ancestor’s naturalization did effectively cause loss of Italian citizenship for their minor children, even those born with dual jure soli citizenship under Article 7.

This represented a significant departure from how “minor ancestor” naturalization cases had been treated for over a century by Italy’s governing bodies and lower courts.

However, being a “civil law” country, Italy’s court decisions do not automatically set binding legal precedents across all jurisdictions in the same way as the U.S. system.

Regional Courts Approving Despite Ruling

When citizenship cases shifted from the Court of Rome to regional courts in 2022, these local venues routinely continued approving minor ancestor naturalization petitions – even after the Cassation Court’s ruling no. 17161 in June 2023.

This conflict highlighted how Supreme Court interpretations, while highly persuasive, are not strictly binding on all lower courts in Italy’s legal framework. Only a ruling by the United Sections (Sezioni Unite) of the Supreme Court is considered a definitive and binding interpretation.

Updated Supreme Court Ruling (Jan 2024)

A new Supreme Court ruling in January 2024 (ordinanza no. 454) provided more extensive legal reasoning on the minor issue. The key points were:

• It confirmed the 1865 Civil Code position that an Italian minor child would lose citizenship if their Italian father voluntarily naturalized while they were underage, regardless of their birthplace.
• It ruled that Article 12 of the 1912 law should be applied instead of Article 7 in naturalization cases during a child’s minority, overriding any protection for minors born with jure soli citizenship abroad.
• This represented a decisive interpretation contradicting past practices by Italian authorities of allowing Article 7 to preserve minor citizenship despite a parent’s naturalization.

While not automatically binding precedent, this latest Supreme Court ruling carries significant legal authority and could influence how future cases are decided by regional courts.

Potential Implications

• The rulings do not automatically void prior citizenships already recognized, as those cannot be revoked retroactively.
• For new cases before the courts, the rulings provide authorative reasoning that could lead more judges to start denying petitions involving an ancestor who naturalized when the next individual in the bloodline was still a minor.
• However, a future differing, favourable interpretation by the United Sections may be possible especially, if enough appeals accrue.

Straightforward Path for Non-1948 Cases via Consulates and Town Halls

For cases that don’t fall under the 1948 rules (no female ancestor giving birth pre-1948), the pathway is more straightforward when going through consulates or town halls in Italy. The only requirement is that the Italian-born ancestor naturalized after the child’s birth, regardless of whether the child was still a minor at that time. Italian Consulates and town halls do not apply the same restrictive interpretations as some courts initially did for 1948 cases.

Using a Non-Naturalized Ancestor for Strongest Citizenship Claim

When preparing a court case, it is recommendable using an ancestor who never naturalized if possible, as it simplifies the citizenship claim substantially. Alternatively, female ancestors who automatically and discriminatorily acquired U.S. citizenship before 1922’s Cable Act (due to their husband’s naturalization) are viewed sympathetically by courts as having naturalized involuntarily.

Moving Forward

With the complexities around minor cases, and differing legal interpretations, professional guidance is highly advisable when preparing citizenship applications – especially those involving court petitions. However, the overall outlook still appears promising for many to ultimately obtain recognition of their hard-earned Italian citizenship by descent through the diligent legal process.

Minor Issue Naturalization FAQ

What is the “minor issue”?

The recent court ruling asserts that if an Italian ancestor naturalized as a citizen of another country while their child (the next in the lineage) was a minor, the child did not retain Italian citizenship. This severs the citizenship lineage, regardless of the year the naturalization occurred.

Is this now a binding legal precedent?

No, this ruling does not automatically set a binding precedent in Italy’s legal system. However, lower courts are now more likely to rule against cases involving the “minor issue.” The Ministry of Interior may also instruct consulates and municipalities to reject citizenship applications where an ancestor naturalized while their child was a minor.

When a Child is becames an Adult under Italian Citizenship Law?

Prior to 1975, the age of majority in Italy was 21. After 1975, it was lowered to 18.

What’s the current status and impact?

As of now, nothing has changed in the citizenship application process. However, the Ministry of Interior may eventually adopt this court’s interpretation of the law, making it more difficult for descendants impacted by the “minor issue” to obtain citizenship.

Should I still apply for Italian Citizenship if affected by the “minor issue”?

Yes, submit your application as soon as possible if you might be affected. Also, check if you have other Italian-born ancestors through whom you may qualify.

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