A recent decision by the Court of Cassation has revolutionized the application for recognition of Italian citizenship iure sanguinis for many descendants of our compatriots who emigrated to Latin American countries such as Argentina, Brazil, Uruguay and Venezuela starting from 1861, the year of foundation of the Italian State. Recognition of right iure sanguinis is bound to the demonstration, by the applicants, of uninterrupted transmission of Italian citizenship from an ancestor. In short, to obtain Italian citizenship it is sufficient to prove the chain of descent, i.e. that one’s grandfather, great-grandfather, great-great-grandfather of Italian ascendancy without generational limits, has never lost citizenship and therefore passed it onto the descendant who applies for it to the Italian Consulate.
Waiting lists for requesting citizenship iure sanguinis
At that point, the request enters the waiting lists for citizenship recognition. However, the Italian Ministry of the Interior opposes and hinders granting Italian citizenship to those who request it either by administrative means, i.e. through the Consulate, in case the ascendant is a man, or by judicial means in case the ascendant is a woman. In fact, in those cases where transmission of the right to Italian citizenship iure sanguinis occurs through the mother, recognition must be requested to a judge.
The decision of the Court of Cassation transforms the principles of recognition of citizenship rights to descendants
The events originating the decision are related to a request for citizenship recognition without generational limits, after several years, by a Brazilian citizen who applied for Italian citizenship iure sanguinis. The Ministry objected that in 1889 Brazil had by law naturalized all immigrant foreign citizens. On that occasion, the immigrants had been invited to formalize their desire to maintain their citizenship of origin – otherwise, they would have been considered exclusively Brazilian citizens. Given the impossibility to prove that the applicant’s ancestor had produced such a declaration, he was no longer entitled to Italian citizenship.
Invalidity of the principle of effectiveness and cases of loss of Italian citizenship
The Ministry of the Interior considered that the Italian citizen, for the sole fact of having actually moved to another country for work, had made a tacit choice in favor of Brazilian citizenship. But the work of reconstruction of the regulatory sources carried out by the Court of Cassation proves that:
- the choice of evaluating a specific behavior for the purpose of acquiring or losing Italian citizenship rests solely with the national i.e. Italian legislator;
- the Italian law has always stated that the loss of citizenship depends on “active” and “voluntary” behavior and none of these behaviors had been proven by the Ministry against the applicant’s ancestor;
- as early as 1907, the Court of Cassation of Naples discussed the relevance of the “great Brazilian naturalization” in the Italian legal system, coming to the same conclusions, namely that the Italians residing in Brazil in 1889 did not lose citizenship for the mere fact of having been naturalized;
- in relation to such a relevant status as citizen, the principle of allocation of the burden of proof must be applied. It is up to the descendant to prove the original attribution of Italian citizenship and the uninterrupted transmission without generational limits to the person who requests it. At the same time, however, it is up to those who want to plead a circumstance that prevents or extinguishes the right to Italian citizenship to produce proof thereof – in this case to the Ministry of the Interior.
How to apply for and obtain citizenship iure sanguinis
The granting of citizenship is bound to its application, accompanied by documents proving the uninterrupted transmission of citizenship iure sanguinis. In the event that the transmission of the right iure sanguinis occurs through the mother, it is still necessary to request recognition from the Court.
Damiani & Damiani International Law Firm has been researching and working on immigration rights for years, both in relation to the granting and recognition of residence permit and citizenship, and offers online consultancy for assistance in applying for Italian citizenship both by administrative and judicial decision.
