By Avv. Michele Vitale

I received many comments lately regarding my posts about registering a minor under the new law. I wish to all the commenters for their questions and counter-arguments, as they allow me to delve deeper into such a new and complicated topic and try to clarify the strategic foundation of my advice. I want to be very clear from the outset: I don’t claim that the interpretation I have outlined is the one and only “correct” reading of this law. On the contrary, my entire analysis is an attempt to navigate a legislative text that, because of the political motivations and haste with which it was enacted, is profoundly ambiguous, at times cryptic, and in some areas, nearly incomprehensible. A real quagmire (“ginepraio” in Italian).

The core difficulty lies in reconciling the binding nature of such an important and wide-reaching law with the foundational constitutional principles it appears to violate on multiple fronts. This inherent tension is what gives rise to multiple, conflicting interpretations.

The interpretation I have proposed is therefore just one of several possibilities. I believe it is the most prudent and strategically sound because it adheres to a rigorous, literal reading of the text (“interpretazione letterale”). In our legal system, this approach offers the greatest guarantee of holding up over time and is the least likely to be successfully challenged by the administrative or judicial authorities who will ultimately judge our case.

This does not, of course, negate the existence of other interpretations. It is entirely possible that the prevailing interpretation adopted by judges and administrative offices could be different, and perhaps more benevolent, than the literal one I am proposing. A perfect example of this is the extensive interpretation offered by Dr. Tiziana Piola of ANUSCA, which I detailed in a previous blog post, suggesting the 2026 deadline for the “Declaration of Will” might apply to all minors.

The core of this benevolent argument is that if letters a) and b) of Article 3-bis do not protect those already recognized, the law’s main preclusion clause (“considered to have never acquired…”) would lead to the absurd and unconstitutional outcome of stripping citizenship from those who are already, legally, Italian. Therefore, to maintain legal coherence, letters a) and b) must be interpreted as a safety net for anyone who has ever successfully completed the application process.

However, I believe it is far preferable to adopt the most prudent interpretation possible, even if it seems restrictive. The risk of relying on more generous interpretations is that they could, sooner or later, be rejected by an official who decides to adhere strictly to the letter of the law. Given the general trend toward increasing restrictiveness from Italian institutions on these matters, this is, unfortunately, a very concrete risk. Therefore, the strategy I am advising is designed to be successful even under the strictest possible scrutiny.

1. A Fundamental Shift: From Automatic Jus Sanguinis to Conditional “Benefit of Law”

The most critical change introduced by the new law, which circulating advice often overlooks, is that minor children born abroad to an Italian citizen parent no longer acquire citizenship automatically at birth jure sanguinis. Instead, they now acquire it “by benefit of law” (per beneficio di legge), as outlined in the new Article 4, comma 1-bis, of Law 91/1992. This is a monumental shift in legal doctrine. It means citizenship is no longer an automatic birthright but is a right granted only after specific legal conditions are met. Crucially, the acquisition of citizenship takes effect not retroactively from the moment of birth, but prospectively from the day after these new conditions are fulfilled. This makes timely and correct adherence to the new procedures absolutely essential for successfully registering a minor.

2. The Prudent Strategy: A Literal Interpretation Backed by Three Converging Arguments

Let’s recap the prudent strategy based on a literal, restrictive interpretation of the wording used by the legislator. There are three powerful, converging arguments to offer.

Argument 1: The Different Wording for Different Beneficiaries

The most powerful evidence comes from a direct comparison of the text defining the beneficiaries of each rule:

• The General Rule (Art. 4, comma 1-bis): This rule applies to the minor child “del quale il padre o la madre sono cittadini per nascita” (“of whom the father or mother are citizens by birth”). This is a broad, simple, and all-encompassing category.
• The Transitional Rule (Art. 4, comma 1-ter(2)): This rule, with its 2026 deadline, applies only to minors who are “figli di cittadini per nascita di cui all’articolo 3-bis, comma 1, lettere a), a-bis) e b)” (“children of citizens by birth as per Article 3-bis, paragraph 1, letters a), a-bis), and b)“).

This is not a minor variation; it is a fundamental legal distinction that defines two completely different audiences. The legislator intentionally added the specific cross-reference to the Article 3-bis exceptions in the transitional rule. If the true intention had been to extend the 2026 deadline to everyone, the legislator would have simply used the same broad and general formula found in the permanent rule. The fact that they did not, and instead chose to add a specific, limiting clause, makes their intent clear.

Argument 2: The Deliberate Distinction Between “Citizens” and “Persons”

A careful textual analysis of the entire reform reveals another deliberate distinction. When the law wants to refer to those whose rights were **already established and consolidated**, it consistently uses the term **”cittadini” (citizens)**. The new Article 4, comma 1-bis, itself begins by referring to the child of a “padre o la madre [che] sono cittadini per nascita.” This presumes a pre-existing, recognized legal status.

Conversely, when the law addresses individuals with a **potential right who have not yet completed the recognition process**, it uses more generic terms like **”persone” (persons)**, **”straniero” (foreigner)**, or **”chi è nato all’estero” (he who was born abroad)**. This is precisely the language used in the main preclusion clause of Article 3-bis. This precise terminology strongly suggests that Article 3-bis is aimed at “persone” whose citizenship status is still in question, not at re-evaluating the status of established “cittadini”.

Argument 3: The Legislator’s Intent (The Teleological Argument)

This literal reading is corroborated by the official parliamentary dossier (A.S. n. 1432-A). The dossier’s analysis clarifies that the legislator’s intent was to manage pending applications, not to re-evaluate the status of those whose rights were already consolidated. It repeatedly speaks of protecting the “aspettativa” (legal expectation) of those who had “attivato” (activated) themselves by filing an application. A person who is already a recognized citizen does not have a mere “expectation”; they have a consolidated subjective right (diritto soggettivo perfetto). This analysis of intent, combined with the two textual arguments above, makes the restrictive interpretation the most legally sound.

The Missing Legal Step: The Formal In-Person “Dichiarazione di Volontà”

It’s crucial to also remember that the process itself has changed. It’s not enough to simply “contact the consulate.” The new law requires a formal and joint “Dichiarazione di Volontà” (Declaration of Will) from both parents. This is a formal legal act, and the Ministry’s own implementing Circular clarifies its solemnity, stating that such declarations:

“must be formal and take place in person, in the presence of delegate for the exercise of stato civile functions.”

This explicit instruction indicates a requirement for an in-person appearance before a qualified official, a standard far more rigorous than a simple postal application. Ignoring this when registering a minor could lead to a legitimate rejection of the application.

Conclusion: The Recommended Strategic Pathway

Given this complex and uncertain landscape, the recommended strategy should be tiered to ensure the best possible outcome:

1. The Safest Path: You should still aim to complete the registration for your son under the **one-year deadline of Article 4, comma 1-bis**, if at all possible. This approach bypasses any potential for administrative misinterpretation of the more complex Art. 3-bis and is the most direct route to success without litigation.
2. Alternative Subordinate Pathways: If the application under path #1 is challenged, rejected, or impossible to finalize (for example, because you can’t get an appointment), you should then try to follow the alternative interpretative path, arguing that you also fall under the protection of Art. 3-bis letters a) or b).
3. The Judicial Petition: If both administrative avenues prove impracticable or are denied, you will proceed with a judicial petition and argue that:
   • First, the correct procedure under the specific lex specialis of Art. 4, comma 1-bis, was followed.
   • Second, you also fall under the protective umbrella of the exceptions in Art. 3-bis, as a parent who successfully completed the application process in the past.
   • Third, you will challenge the constitutional legitimacy of the law, because it retroactively stripped your family of a right that was already vested.