Naturalization and Tajani Decree: An Unexpected Citizenship Window?

The Unexpected Window of the Tajani Decree: A New Path for Citizenship… But Until When?

(ATTENTION: This article presents a legal reflection on a potential and controversial interpretation of Decree Law 36/2025. It does NOT constitute legal advice. The situation is extremely fluid and subject to rapid legislative changes. It is strongly recommended to consult a qualified lawyer to evaluate specific cases.)

Introduction

As many of you know, the path to recognition of Italian citizenship jure sanguinis is going through a phase of profound uncertainty. The Decree Law n. 36 of March 28, 2025 (often called “Decreto Tajani”) has introduced drastic and retroactive changes, casting a shadow over the future of many applications and raising serious constitutional questions, as discussed in our previous posts on the subject and concerning the echo of rulings like that of the CGUE on the Malta case.

While attention has primarily focused on the restrictive aspects of the decree – the “Great Loss” for many descendants beyond a certain generation or without specific registry or residential ties to Italy – a closer analysis of the literal text of the new rule raises a fascinating and potentially disruptive question: could the decree, in its attempt to close doors, have inadvertently opened another one for a category of people previously excluded from citizenship due to naturalization and the Tajani Decree’s specific wording?

This post delves into this specific, subtle interpretive issue. We will explore how the formulation of Article 3-bis introduced by DL 36/2025, particularly the combination of its broad derogation clause and one of its exceptions (letter ‘e’), could theoretically make citizenship recognition cases admissible that were previously precluded due to the ancestor’s (grandfather/grandmother’s) naturalization occurring before the birth of the direct descendant (father/mother).

We will analyze the text of the law, compare it with the pre-existing rules and with the interpretive principles of Italian law, highlighting how a literal interpretation seems to lead to this possibly unintentional conclusion regarding naturalization and the Tajani Decree. However, we will strongly emphasize the precariousness of this potential “window,” given the temporary nature of the decree-law and the high probability that Parliament will intervene to “correct” this (alleged) oversight during the conversion phase.

We reiterate: this is a theoretical analysis, not advice. The goal is to stimulate informed reflection on the complexity and possible consequences, even unexpected ones, of such impactful legislative interventions, especially when carried out through emergency decrees.

1. The Previous Barrier: Ancestor’s Naturalization Before the Child’s Birth

Before delving into the new decree, it is crucial to remember the ironclad rule that governed the transmission of Italian citizenship for over a century in the presence of foreign naturalization. According to the Law of June 13, 1912, n. 555 (and even earlier, the Civil Code of 1865), an Italian citizen who voluntarily acquired a foreign citizenship normally lost the Italian one (cf. Art. 7 L. 555/1912 – view on Normattiva).

The direct consequence, undisputed and universally applied by jurisprudence and administration, was that if this loss occurred before the birth of the child of this (former) citizen, the latter was born to a foreign parent and, therefore, could not receive Italian citizenship jure sanguinis. The chain of transmission was inexorably broken.

In summary: until March 27, 2025, an individual whose Italian grandfather had naturalized abroad *before* the birth of the applicant’s father or mother could *not* obtain recognition of Italian citizenship through that line. The impediment was absolute.

2. The Text of the Tajani Decree: The Derogation and the Key Exception (Art. 3-bis)

DL 36/2025 introduces Article 3-bis into Law 91/1992. Paragraph 1 establishes a general restrictive rule: those born abroad and holding another citizenship “are considered never to have acquired Italian citizenship,” unless one of the following conditions is met. The structure is therefore: general exclusion, with specific exceptions.

Let’s analyze two crucial elements of this paragraph 1 for our question:

The Derogation Clause (Opening of paragraph 1):

“By way of derogation from articles 1, 2, 3, 14 and 20 of this law, article 5 of law 21 April 1983, n. 123, articles 1, 2, 7, 10, 12 and 19 of law 13 June 1912, n. 555, as well as articles 4, 5, 7, 8 and 9 of the civil code approved by royal decree 25 June 1865, n. 2358, is considered never to have acquired…”

This clause is powerful. It states that the entire mechanism that follows (general exclusion + exceptions) applies by setting aside, rendering inapplicable for the purposes of this new rule, all the listed provisions. Among these, Article 7 of Law 555/1912 stands out, precisely the cornerstone provision that governed the loss of citizenship due to naturalization and its effects on transmission to descendants.

The Exception in Letter ‘e’:

One of the conditions that allows escaping the general exclusion (and thus being considered citizens despite being born abroad and holding another citizenship) is:

“e) a first-degree citizen ancestor of the citizen parents or adopters was born in Italy.”

In practice, if one has a grandfather or grandmother (first-degree ancestor of the parent through whom citizenship is claimed) who was an Italian citizen and was born in Italy, this condition is met.

3. The Literal Interpretation: Does a Window Open?

Let’s put the pieces together according to legal logic and the interpretation rules established by Art. 12 of the Preliminary Provisions to the Italian Civil Code (Preleggi), which prioritizes the “proper meaning of the words according to their connection.”

1. The DL 36 says you are excluded if born abroad with another citizenship.
2. But this exclusion does not apply if you meet one of the conditions from ‘a’ to ‘e’.
3. One of these conditions (‘e’) is having a citizen grandparent born in Italy.
4. This entire mechanism applies “by way of derogation” (i.e., ignoring for the purpose of this specific assessment) from Art. 7 of L. 555/1912.

The literal interpretation that follows seems almost mandatory:

If a person today has an Italian grandparent born in Italy (meets condition ‘e’), then they should be able to access citizenship recognition according to Art. 3-bis, even if that same grandparent had naturalized before the birth of the child (applicant’s parent). Why? Because the impediment that previously blocked the line (the naturalization operating according to Art. 7 L. 555/1912) has been expressly rendered inapplicable by the derogation clause when evaluating the case under the new conditions. The positive condition (grandparent born in Italy) seems to “neutralize,” thanks to the derogation, the negative effect previously produced by naturalization under the old law.

In practice, the current text of the decree seems to create a new scenario for naturalization and the Tajani Decree: people who were never eligible due to the line being broken by pre-birth naturalization might now become eligible if their ancestor (grandparent) who naturalized was born in Italy.

4. The Legislator’s Intent: An Obvious Conflict?

Here lies the problem. If we read the (scarce) explanatory report for DL 36/2025 (contained in Senate Bill S. 1432 – view on Senate website – Link may need update as bill progresses) and the reasons given by the Government (contained in the preamble of the decree itself, viewable on Gazzetta Ufficiale), the stated intent is clearly restrictive:

• Limit automatic transmission abroad.
• Anchor it to “clear indicators of the existence of effective ties.”
• Achieve a “balance” between constitutional principles.
• Avoid an “exceptional and uncontrolled influx of applications.”
• Address the “continuous and exponential growth of the pool of potential citizens.”

Nowhere in the preparatory works or official statements does the intention emerge to broaden the categories of eligible persons or to “rectify” situations previously excluded, such as pre-birth naturalization. Indeed, the stated goal is the opposite: to reduce the potential pool.

This discrepancy between the possible literal effect of the rule and the declared intention is striking. It almost seems that, in the rush to write the decree, the formulation of the derogation and exceptions produced an uncalculated, or at least unpublicized, consequence regarding pre-birth naturalization.

5. Legal Interpretation: Can Intent Override the Text?

How is this conflict resolved in the Italian legal system? As mentioned, Art. 12 of the Preleggi guides interpretation. It requires considering both the literal meaning and the legislator’s intention. However, consistent jurisprudence (Cassation and Constitutional Court) has established a hierarchy:

1. Start with the text: if it is clear and unambiguous, that is the primary meaning.
2. The intention (which can also be inferred from preparatory works) serves to clarify doubts, resolve ambiguities, or understand the rationale for coherent application (teleological interpretation).
3. Preparatory works cannot overturn a clear text. If Parliament (or the Government in the case of a decree-law) writes one thing, that rule cannot be made to say the opposite just because something else was said in preliminary discussions or that aspect was not considered. This would violate legal certainty.

Applying these principles to our case:

• The text of Art. 3-bis, with its explicit derogation from Art. 7 L. 555/1912 in the presence of condition ‘e’, seems sufficiently clear in producing the discussed effect.
• The declared general restrictive intention in the preparatory works, although evident, does not seem sufficient to neutralize the literal scope of the specific derogation applied to one of the positive exceptions. This is not an interpretation leading to absurd or clearly unconstitutional results (in fact, it might even appear more “equitable” to some), but simply to a result perhaps unforeseen or unwanted at the general political level.

Provisional Conclusion: From a strictly legal-interpretive standpoint, based on Italian rules, the argument that DL 36/2025 has effectively opened this “window” for descendants of Italian ancestors born in Italy but naturalized before the birth of the child appears founded on the text of the law currently in force.

6. The Crucial Warning: A Time-Limited Window?

And here is the fundamental point for anyone in this specific situation: Decree Law 36/2025 is a temporary measure. It must be converted into law by Parliament within 60 days of its publication (therefore, by approximately May 27, 2025).

During this conversion process (currently underway in the Senate with Bill S. 1432), the text of the decree can be modified through amendments. It is highly probable that, if this potential consequence of letter ‘e’ combined with the derogation is perceived as an error or as politically undesirable by the Government or the parliamentary majority, an amendment will be introduced and approved to explicitly “close” this window concerning pre-birth naturalization.

This could happen in many ways:

• Adding a clause to letter ‘e’ such as: “…provided that the line of transmission was not previously interrupted by the ancestor’s foreign naturalization.”
• Removing Art. 7 of L. 555/1912 from the list of derogated norms.
• Modifying the general structure of the rule.

The risk that this potential opening will be closed shortly, perhaps even in the coming weeks, is therefore extremely concrete.

7. Strategic Reflections (Not Legal Advice!)

What does all this mean for those who recognize themselves in the discussed case: grandparent citizen born in Italy, naturalized before the birth of the applicant’s parent?

Reiterating that this is not legal advice, a strategic reflection can be made. For decades, these individuals were not entitled to recognition. Now, the text of a currently effective decree-law seems to offer them a possibility, based on a strong literal interpretation, although potentially contrary to the general intent of the emergency legislator. However, this possibility risks vanishing with the conversion of the decree.

Could it therefore make sense, for those in this category, to consider the opportunity to act now, while the text of DL 36/2025 remains unchanged?

• Pro: Submitting an application (administrative or, more likely given the novelty and complexity, judicial) based on the literal interpretation of the currently effective Art. 3-bis could “crystallize” the situation under this specific rule. If the law were to change after the application is submitted, one could argue that the right should be assessed according to the law in force at the time of the request. A judge, faced with a clear literal text at the time of the decision, might find it difficult to justify a rejection based solely on presumed intent, preparatory works, or a subsequently modified law.
• Con/Risks: The costs of legal action; the uncertainty of the outcome (a judge might still adopt a restrictive interpretation, although harder to justify); the risk that the law changes before a decision is reached, making the action more complex or futile; the long timelines of the Italian justice system.

The reflection is delicate. Acting now involves risks and costs, but it might be the only, perhaps brief, opportunity based on this specific (and perhaps unintentional) legislative formulation addressing naturalization. Not acting likely means losing this potential window if Parliament intervenes during conversion, as seems probable.

Conclusion: A Legislative Paradox to Monitor

The Tajani Decree, born with the declared intent to restrict access to citizenship jure sanguinis, seems to have created, due to a specific textual formulation (the derogation from Art. 7 L. 555/1912 combined with the exception for the grandparent born in Italy), a potential new access route for a previously excluded category affected by historical pre-birth naturalization and the Tajani Decree’s new rules.

This interpretation, although literally founded, contrasts with the spirit of the law and seriously risks being nullified by Parliament during the conversion of the decree in the coming weeks.

The situation requires maximum attention and constant monitoring of the parliamentary work on Bill S. 1432. For those specifically in the discussed situation, a thorough strategic reflection with an expert lawyer, carefully weighing the pros and cons of immediate action, seems advisable, in full awareness of the extreme uncertainty and probable temporariness of this “window”.

Stay tuned to our blog for updates on this and other crucial developments regarding Italian citizenship.

FAQs (Frequently Asked Questions about the Potential “Window”)

Q: What is the potential “new window” opened by the Tajani Decree?

A: The literal interpretation of Art. 3-bis (paragraph 1, letter ‘e’ + derogation clause) suggests that individuals with a citizen grandparent born in Italy might now be entitled to citizenship, even if that grandparent naturalized abroad before the birth of the applicant’s parent, a fact that previously broke the lineage under the old understanding of citizenship law.

Q: Why would this opening be “unexpected” or “unintentional”?

A: Because the stated intent of the Government in issuing DL 36/2025 was to limit access to citizenship, not to create new categories of eligible individuals. The preparatory works do not mention this specific effect concerning naturalization and the Tajani Decree.

Q: Is this interpretation certain?

A: No. It is based on a literal interpretation of the current text of the decree-law. It is possible that it will be contested in court or, more likely, that the text will be modified by Parliament to explicitly exclude this possibility. It is NOT a legal certainty.

Q: Why might this “window” close soon?

A: Because DL 36/2025 must be converted into law by Parliament by the end of May 2025. During this conversion process, it is very likely that amendments will be approved to correct this (presumed) unintended consequence and explicitly close this path.

Q: If I fall into this case, should I apply now?

A: This article does not provide legal advice. It is a complex strategic decision with pros and cons. Acting now might allow the application to be based on the current text, but involves costs and uncertainties. It is essential to discuss this thoroughly with a qualified lawyer who can assess the specific risks and opportunities of your case concerning naturalization and the Tajani Decree in light of real-time legislative developments.