The acquisition of Italian citizenship by a paternal or maternal line.
To ascertain whether or whether the applicant's Italian nationality was genuinely passed down via all of their ancestors, special consideration must be given to the assessment of paternal or maternal lineage. Because different laws apply depending on whether the nationality was passed down by a male or female ancestor, or by the father or mother, it is imperative that this initial assessment be done carefully.
In truth, it is evident from an analysis of Legislative Decree 555/1912's article 1 that Italian citizenship is solely passed down through the paternal line, with the exception of the circumstances outlined in the second sentence: "1. the child of a citizen father." 2) A child born in the Kingdom, if both parents are unknown or do not hold Italian citizenship or citizenship of another State, or if the child does not follow the nationality, if the father is not an Italian citizen or holds citizenship of another State. 3) A child born in the Kingdom, if both parents are unknown or do not hold Italian citizenship or citizenship of another State. The son of an unknown individual discovered in Italy is assumed to have been born in the UK until proven differently.
It was necessary to show that the parent in question was an Italian citizen and that a tie of sonship had been created in order to prove lineage from an Italian father. In most cases, it is sufficient to show that the father and mother of the child were married before the child was born through an act or certificate, together with proof that the child was born within the spouse. The father's name on the birth certificate could not be used to demonstrate citizenship if the papers were misplaced and no way to obtain a copy existed.
If the father and mother were married and remained so, or if the father registered the birth or later recognized the child, as long as the effects of that recognition could be traced back to the time of birth (such as if the recognition of a child occurred when the child was still a minor), Italian citizenship by paternal descent was only transmitted.
There are two possible results when passing on Italian citizenship: a) the kid may receive Italian citizenship whether born before or after 1948, or b) the woman may lose her Italian citizenship if she marries a foreigner. This makes transmission via maternal descent unique.
The two different hypotheses refer to two different articles of the same statute, which are, respectively, Article 1 and Article 10.3 of statute 555/1912.
If the birth took place before or after 1948, i.e., if the child was the son of a single mother, it was thought that the mother could pass on Italian citizenship even if the father was not known, so long as the same documentation was presented to officially recognize the birth and the relative acknowledgment. It should be noted that under Italian law, a woman must do more than just give birth to a kid in order to establish a paternal tie in order to establish a relationship of sonship; she must also make arrangements for the child's recognition. The same thing happens if a father is a stateless person or if a son is not granted his father's citizenship by abiding by the laws of the father's country of origin. In this case, the mother will grant the son Italian citizenship.
The loss of Italian citizenship for a woman who marries a foreign national is governed by Article 10 of Law 555/1912 on the uniqueness of citizenship within the family nucleus and, consequently, on the impossibility of holding multiple citizenships in addition to Italian citizenship ("The married woman cannot assume a citizenship different from that of her husband, even if there is a personal separation between spouses"). A woman who marries an alien forfeits her Italian citizenship if her husband's citizenship is transferred to her as a consequence of the marriage, according to the third paragraph ("A woman who marries an alien forfeits her Italian citizenship if her husband's citizenship is transferred to her as a result of the marriage. She either stays in the [Kingdom] or returns there in the event of the dissolution of the marriage, and in either case she expresses her desire to recover citizenship. The statement will be comparable to the fact that residency in the Kingdom lasted longer than two years from the date of dissolution if no children are born from the anticipated marriage.
The Constitutional Court's ruling that Article 10 was only unconstitutional insofar as it stated that a woman would lose her citizenship if she married a foreigner and that her husband would automatically acquire her nationality, despite the woman's wishes, supersedes the provisions of Law 555/1912 in its judgment no. 87/1975.
There is, however, more.
In its ruling No. 12601/1998), the Court of Cassation noted that although the rulings of unconstitutionality call for the repeal of the regulation that was found to be unconstitutional—but only and exclusively to apply as of January 1, 1948—and the maintenance of citizenship for married women as of that date, they also call for the loss of citizenship for those who had already entered into marriage. This disparity in legal treatment results from the fact that the Republican Constitution's provisions cannot be changed by decisions of the Constitutional Court. It is important to keep in mind that the idea of equal rights for men and women with regard to passing on citizenship was fully applied for the first time in the 1948 Constitutional Charter.
However, an Italian citizen who married an Argentine or Brazilian citizen (even before January 1, 1948) never lost her Italian citizenship as a direct result of her spouse because the husband's legislation did not require the immediate acquisition of another citizenship. Other laws foresaw this link between cause and consequence. In order to prove that the lady never took on her husband's nationality, it is always essential to obtain a certificate from the Italian consulate.
Therefore, there are three potential results.
In the first case, an Italian woman with Italian ancestry who was born in Brazil marries a national of any country whose laws forbid the transfer of citizenship to spouses. In this case, even if the marriage took place before January 1, 1948, the woman does not lose her Italian citizenship.
In the second case, if the lady is of Italian origin but was born in Brazil and marries a citizen of any nation that offers citizenship to spouses before January 1, 1948, she forfeits her Italian citizenship. In this case, the woman's citizenship from Italy is canceled.
It is stated that in light of the aforementioned Constitutional Court decision, the wife's citizenship is preserved under the changes to family law imposed by Law 151/1975. Because of the way that Article 219 was written, women who had lost their Italian citizenship due to marriage before January 1, 1948, were able to restore it by making a clear declaration of purpose. The interruption in citizenship occurs between the day of the marriage and the day after the declaration since a repurchase of citizenship is necessary starting on that day. As a result, the lady must think of herself as Italian up until the wedding day, then as foreign from the wedding day until the declaration of repurchase day, and finally as Italian starting the day after the declaration. The only provisions of Law 91/92 that can provide Italian citizenship to children born after marriage but before the declaration of repurchase are Articles 4 and 9. As a result, such children are regarded as outsiders.
It is actually stated explicitly in Article 4 of Law 91/92 that "1. The foreigner or stateless person, of whom the father or mother or one of the ascendants in a direct line of the second degree were nationals by birth, becomes a citizen: a) if he is actually serving in the military service of the Italian State and declares in advance that he wishes to acquire Italian citizenship; b) if he is employed by the State, also abroad, as a public servant and declares
"1. Italian citizenship may be granted by decree of the President of the Republic, after consulting the Council of State, on a proposal from the Minister of the Interior, to: a) a foreigner whose father or mother or one of the ascendants in the second straight line was a national by birth, or who was born on the territory of the Republic, and, in any event, without prejudice to the provisions of Article 4, paragraph 1." On the recommendation of the Minister of the Interior and in agreement with the Minister of Foreign Affairs, foreigners may be granted Italian citizenship by decree of the President of the Republic, after consultation with the Council of State and after consideration by the Council of Ministers, if they have made significant contributions to Italy or if it is in the interests of the State.
In order to transpose a declaration to be recorded in the registers of citizenship in which the woman intends to regain Italian citizenship, the registrar of the woman's municipality of residence (if she lives in Italy) or the Italian consul (if she lives abroad) will be in charge. Instead, the investigation's results will be sent to the mayor, who would subsequently record them in the citizenship registers.
The third and final scenario is portrayed by a Brazilian woman who was born in Italy but has Italian ancestry. She marries a citizen of any nation after January 1, 1948, who passes on his citizenship to his wife, who loses Italian citizenship, but who is still recognized as having citizenship under the terms of Circular K.60.1/5 of the Italian Ministry of the Interior, dated December 31, 1948. (Subject: New interpretive rules for women married to foreigners after January 1, 1948 -- Retroactive effect of ruling No. 87 rendered by the Constitutional Court on 16.4.1975).
According to the Supreme Court's ruling no. 4466/2009, the following legal principle applies to all of the aforementioned circumstances: "The title of citizenship (OMISSIS) must be recognized in court, regardless of the declaration made by the interested party pursuant to Law No. 151 of 1975, Article 219, to the woman who lost her citizenship in order to marry a foreign national before 1 January 1948, on the grounds that the loss without the holder's consent was due to a violation." Articles 3 and 29 of the EC state that this violates the principle of gender equality. In accordance with the same rule, it transfers to the son of a woman in the aforementioned situation who was born before that date and while Law No. 255 of 1912, defining the relationship of sonship, was in force, the status of citizen to which he would have been entitled absent the discriminatory law, citizenship (OMISSIS) from (OMISSIS).
In light of the aforementioned decision, it can be inferred that the officer of civil status must first assume that the transmission of citizenship has not taken place before granting a request for recognition of Italian citizenship. This is the situation if the official learns that the descent should have come from an Italian mother's filiation that took place before to January 1, 1948, or if the mother has lost citizenship as a result of her marriage to a foreign citizen prior to the child's birth. The interested parties must petition the judicial body for recognition of their status by citing judgment 4466/2009 of the Supreme Court of Cassation.
Abogado Sarah Silvestri
Immigration Attorney
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