What a law from 1912 means for your claim for Italian citizenship via ancestry
Recent changes to how Italian courts are applying rules dating from 1912, known as the ‘minor case’ issue, can prove an unexpected obstacle for some citizenship applications.
Ius sanguinis is, in theory, one of the most straightforward paths to Italian citizenship, simply requiring the applicant to demonstrate they are a direct descendent of an Italian citizen.
In reality, however, acquiring citizenship through ancestry can be more complex than it sounds - and lawyers who specialise in the process say that recent changes to how the courts apply the law are making things more difficult for some applicants.
READ ALSO: An expert guide to getting Italian citizenship via ancestry
We spoke with Arturo Grasso, an attorney and citizenship specialist at the Rome-based firm My Lawyer in Italy, about what these developments could mean in practice for someone seeking ius sanguinis Italian citizenship.
A little-known obstacle to citizenship
It's widely known that a key requirement for an ius sanguinis citizenship application is that the ancestor through whom you're applying must have been an Italian citizen at the time of their child's birth.
That means if they ever renounced their citizenship in the process of naturalising as a foreign citizen (as many emigrants did), they must have done so after their child was born; otherwise the line of descent ends with them.
What's less well-known, however, is that if you're bringing your application before Italy's courts, it's likely to be rejected if your ancestor naturalised when their child was still a minor - that is, under the age of 21.
That's all because of a 1912 law on the topic - legislation that's still in place today.
Why a law from 1912 matters today
At first, Italy didn't have any laws on citizenship; but as more and more of its citizens emigrated, it decided it needed one. In 1912, a law was passed to regulate how Italian citizenship was handed down.
READ ALSO: How foreigners can get ‘fast track’ citizenship in Italy
This law contained two clauses that were somewhat contradictory, based on the fact that Italy in general did not allow dual citizenship at the time, but also wanted to stop hemorrhaging citizens.
One said if the child of an Italian was born abroad (e.g., in the US) and gained birthright citizenship of a foreign country, they remained legally Italian.
But another said that if a child's parent naturalised as a foreigner before the child turned 21, the child automatically lost their Italian citizenship.
That means that for people whose Italian parent naturalised as a foreign citizen before 1992 (when Italy first officially sanctioned dual citizenship), the rules are hazy - and this is where the courts' interpretation of the law is key.
FACT CHECK: Is Italy tightening the requirements for citizenship via ancestry?
In 1990, Italy's Administrative Court said the clause allowing the children of Italian citizens to keep their citizenship should take precedence - what's known as the 'minor case' rule.
What does a 1912 law have to do with applications for Italian citizenship? Photo by MIGUEL MEDINA / AFP.
But more recently, in 2019, the Court of Rome issued a judgement saying it thinks the other clause should take precedence, meaning anyone whose parent renounced Italian citizenship when the child was under the age of 21 should not be considered Italian.
Since then, Grasso says almost all court applications that fall into this category have been rejected. Some are later overturned on appeal, he says; but this only happens in a small minority of cases.
Does the minor case issue apply to me?
It's important to note that you should only run up against the minor case issue if you're applying for citizenship through Italy's courts - going the administrative route via a consulate or comune should be straightforward, because they continue to apply the Administrative Court's more lenient guidelines.
However, as there are now years-long delays to get appointments at many Italian consulates, large numbers of applicants are now petitioning the courts to review their application in order to speed things up.
It's important to check your dates to see whether your Italian ancestor naturalised as a foreign citizen when their child was under 21; if so, taking your case to court is very likely to jeopardise your application, and you're better off waiting.
Grasso also notes that it also only tends to be paternal line applications that are thwarted by the Court of Rome's 2019 ruling.
That's because the 1912 law considered Italian women non-entities, barring them from passing down citizenship and automatically stripping them of their own if they married a foreigner. In the years since, various laws have been passed aimed at rectifying this injustice.
READ ALSO: How the '1948 rule' could affect your Italian citizenship application
That means maternal line applications tend to rely on a different set of laws; and in Grasso's experience to date, he says judges tend not to care when the maternal ancestor forfeited her citizenship, since she often had no say in the matter anyway.
What about applicants whose ancestors naturalised as foreign citizens before the 1912 law came into being?
Unfortunately, Grasso says, people in this situation likely won't be eligible for ius sanguinis citizenship either through the Italian consulate/comune or the courts, regardless of when their children were born, as there was no mechanism in place to allow dual citizenship under any circumstances at the time.
However, he points out that in the case of the US, naturalisation records were not centralised until 1906.
If US applicants contact the United States Citizenship and Immigration Services (USCIS) asking for their ancestor's naturalisation record and none is found, then, Grasso advises them not to keep digging - a Certificate of Non-Existence from USCIS is usually enough to satisfy the courts.
Comments (1)
See Also
Ius sanguinis is, in theory, one of the most straightforward paths to Italian citizenship, simply requiring the applicant to demonstrate they are a direct descendent of an Italian citizen.
In reality, however, acquiring citizenship through ancestry can be more complex than it sounds - and lawyers who specialise in the process say that recent changes to how the courts apply the law are making things more difficult for some applicants.
READ ALSO: An expert guide to getting Italian citizenship via ancestry
We spoke with Arturo Grasso, an attorney and citizenship specialist at the Rome-based firm My Lawyer in Italy, about what these developments could mean in practice for someone seeking ius sanguinis Italian citizenship.
A little-known obstacle to citizenship
It's widely known that a key requirement for an ius sanguinis citizenship application is that the ancestor through whom you're applying must have been an Italian citizen at the time of their child's birth.
That means if they ever renounced their citizenship in the process of naturalising as a foreign citizen (as many emigrants did), they must have done so after their child was born; otherwise the line of descent ends with them.
What's less well-known, however, is that if you're bringing your application before Italy's courts, it's likely to be rejected if your ancestor naturalised when their child was still a minor - that is, under the age of 21.
That's all because of a 1912 law on the topic - legislation that's still in place today.
Why a law from 1912 matters today
At first, Italy didn't have any laws on citizenship; but as more and more of its citizens emigrated, it decided it needed one. In 1912, a law was passed to regulate how Italian citizenship was handed down.
READ ALSO: How foreigners can get ‘fast track’ citizenship in Italy
This law contained two clauses that were somewhat contradictory, based on the fact that Italy in general did not allow dual citizenship at the time, but also wanted to stop hemorrhaging citizens.
One said if the child of an Italian was born abroad (e.g., in the US) and gained birthright citizenship of a foreign country, they remained legally Italian.
But another said that if a child's parent naturalised as a foreigner before the child turned 21, the child automatically lost their Italian citizenship.
That means that for people whose Italian parent naturalised as a foreign citizen before 1992 (when Italy first officially sanctioned dual citizenship), the rules are hazy - and this is where the courts' interpretation of the law is key.
FACT CHECK: Is Italy tightening the requirements for citizenship via ancestry?
In 1990, Italy's Administrative Court said the clause allowing the children of Italian citizens to keep their citizenship should take precedence - what's known as the 'minor case' rule.
But more recently, in 2019, the Court of Rome issued a judgement saying it thinks the other clause should take precedence, meaning anyone whose parent renounced Italian citizenship when the child was under the age of 21 should not be considered Italian.
Since then, Grasso says almost all court applications that fall into this category have been rejected. Some are later overturned on appeal, he says; but this only happens in a small minority of cases.
Does the minor case issue apply to me?
It's important to note that you should only run up against the minor case issue if you're applying for citizenship through Italy's courts - going the administrative route via a consulate or comune should be straightforward, because they continue to apply the Administrative Court's more lenient guidelines.
However, as there are now years-long delays to get appointments at many Italian consulates, large numbers of applicants are now petitioning the courts to review their application in order to speed things up.
It's important to check your dates to see whether your Italian ancestor naturalised as a foreign citizen when their child was under 21; if so, taking your case to court is very likely to jeopardise your application, and you're better off waiting.
Grasso also notes that it also only tends to be paternal line applications that are thwarted by the Court of Rome's 2019 ruling.
That's because the 1912 law considered Italian women non-entities, barring them from passing down citizenship and automatically stripping them of their own if they married a foreigner. In the years since, various laws have been passed aimed at rectifying this injustice.
READ ALSO: How the '1948 rule' could affect your Italian citizenship application
That means maternal line applications tend to rely on a different set of laws; and in Grasso's experience to date, he says judges tend not to care when the maternal ancestor forfeited her citizenship, since she often had no say in the matter anyway.
What about applicants whose ancestors naturalised as foreign citizens before the 1912 law came into being?
Unfortunately, Grasso says, people in this situation likely won't be eligible for ius sanguinis citizenship either through the Italian consulate/comune or the courts, regardless of when their children were born, as there was no mechanism in place to allow dual citizenship under any circumstances at the time.
However, he points out that in the case of the US, naturalisation records were not centralised until 1906.
If US applicants contact the United States Citizenship and Immigration Services (USCIS) asking for their ancestor's naturalisation record and none is found, then, Grasso advises them not to keep digging - a Certificate of Non-Existence from USCIS is usually enough to satisfy the courts.
Join the conversation in our comments section below. Share your own views and experience and if you have a question or suggestion for our journalists then email us at [email protected].
Please keep comments civil, constructive and on topic – and make sure to read our terms of use before getting involved.
Please log in here to leave a comment.