How the '1948 rule' could affect your Italian citizenship application

You've tracked down your Italian ancestor's birth certificate, and you're ready to get started on your Italian ancestry-based ius sanguinis citizenship application.

But before you go any further, you'll want to stop and check whether your case falls under something known as the '1948 rule'.

READ ALSO: An expert guide to getting Italian citizenship via ancestry

This rule specifically affects people who want to apply for Italian citizenship by descent through a female ancestor - or her children - born before 1948.

What is the 1948 rule?

A 1912 Italian law decreed that only men, not women, could pass Italian citizenship on to their children (it also made it so that Italian women who married foreigners were automatically stripped of their own Italian citizenship).

That meant that children born to an Italian mother and a non-Italian father weren't legally recognised as Italian themselves, and couldn't hand down citizenship to any of their descendants.

This rule remained in force until 1983, when it was overturned by Italy's Constitutional Court.

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The Court ruled that since Italy's constitution, which came into force on January 1st, 1948, recognised women as equal to men, they should have been allowed to pass on citizenship.

However, because there was no law recognising women as equal to men prior to the constitution, the 1983 judgement only applied from 1948 onwards.

In other words, people born to an Italian mother after the start of 1948 could now retroactively claim citizenship through her - but those born before 1948 could not.

Fast forward to 2009, and Italy's Constitutional Court decided that this was also unfair.

In a landmark judgement, the Court ruled that a person could claim Italian citizenship through a maternal ancestor (or her offspring) born before 1948 - the '1948 rule'.

But because Italy has a civil law system, this 2009 judgement didn't affect Italian legislation, and those applying for Italian citizenship via the 1948 rule have to go a different route to most other applicants.

Applying via the 1948 rule

Generally, people applying for Italian citizenship via ancestry either go through their nearest Italian consulate (if they live abroad), or their local comune, or town hall (if they live in Italy).

With cases that fall under the 1948 rule, however, officials working at these places can't consider your application. Instead, applicants must directly petition the Italian courts to have their citizenship case heard.

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While there's no guarantee the judge will approve your case, in practice most 1948 rule appeals are successful, as long as you can provide documentation showing a clear and unbroken family line back to your Italian ancestor (and they didn't renounce their Italian citizenship before the next generation was born).

It might sound like applicants with 1948 cases are getting a raw deal. But Arturo Grasso, an immigration and citizenship lawyer at the Rome-based firm My Lawyer in Italy, says he actively prefers them, and will advise his clients to take this route if they have multiple Italian ancestors through whom they can apply.

"If I have an option, I will use the 1948 case," Grasso told The Local.

That's because there's currently a major backlog at most Italian consulates - so much so that many ius sanguinis citizenship applicants now have to wait years before they can secure an appointment.

READ ALSO: 'Next to impossible': How backlogs are delaying applications for Italian citizenship

Because of this, large numbers of people are now appealing to have the Italian courts take on their case instead; but in order to file an appeal, they must prove they tried to go the consular route first.

People with 1948 rule cases, on the other hand, get to skip this step, as they have no option but to go straight to the courts.

The one catch is that (as of a rule change in 2022) the appeal must be made at the immigration court closest to the town where your ancestor was from, and wait times can vary wildly depending on where that is.

Still, when it comes to timeframes, as things stand you're likely to be better off with a 1948 case than any other - despite the best efforts of those early 20th century lawmakers.