The recognition of Italian citizenship by descent, a.k.a. ‘iure sanguinis’, is a fundamental right available to many descendants of Italian expatriates in foreign countries, especially in the Americas. The Court of Cassation has recently clarified the conditions necessary to obtain such recognition, with particular attention to the case of posthumous recognition, of the child of an Italian emigrant.
Citizenship by descent and proof of filiation
To obtain Italian citizenship iure sanguinis, proof of filiation is essential. Traditionally, such proof is obtained by means of the birth certificates of the descendants of the Italian ancestor, as registered in the civil status registers of the claimant’s country of residence. However, the Court of Cassation has stated that, in the absence of this document, it is possible to refer to the continued possession of the status of descendant child of an Italian citizen.
The Case of Posthumous Recognition
In the specific case before the Supreme Court, a South American citizen requested recognition of her Italian nationality iure sanguinis. Her application had initially been rejected by the Municipality where it had been submitted, due to the lack of a birth certificate indicating the paternity and maternity of the child of her Italian ancestor who had emigrated. Given the impossibility to find and file the birth certificate of the ancestor, the applicant had presented the ancestor’s marriage certificate, where the parents recognised the illegitimate child of the Italian ancestor, born out of wedlock. However, both the local authority and the Court of Appeal had rejected the application for citizenship due to the interruption of the line of descent.
The Supreme Court Overturning the Decision. Recognition of the right to transmission of citizenship
The Supreme Court reversed this decision, granting the appeal based on three main grounds:
- violation of the Italian law, in favour of that of the foreign State of emigration;
- failure to state reasons concerning the posthumous recognition of the status of child born out of wedlock of the Italian citizen descendant;
- violation of the Italian Civil Code.
The importance of the judgment lies in the fact that the Court emphasised that, in the absence of a birth certificate, the continuous possession of the status of child can be demonstrated by other means.
Transmission of Citizenship by Descent
The crucial point of the judgment is the posthumous recognition of filiation made in the marriage act. The Court ruled that this recognition is sufficient to prove the continuous possession of the status of child and, consequently, the transmission of Italian citizenship. This principle makes it possible to overcome the lack of a birth certificate, making the recognition of citizenship possible even in the absence of complete documentation.
Proof of filiation and transmission of citizenship by alternative means
The Supreme Court’s ruling represents a significant derogation from the rigidities of the documentation required for the recognition of citizenship iure sanguinis. However, this derogation must be assessed on a case-by-case basis. The possibility of proving filiation and the transmission of citizenship by alternative means increases the opportunities for descendants of Italian emigrants to have their right recognised. It is important to bear in mind that this flexibility is, however, limited by existing rules and administrative practices, often requiring a careful legal approach to the resolution of individual cases.
It is a fact that the recent ruling of the Court of Cassation has opened up new perspectives for the recognition of Italian citizenship iure sanguinis, emphasising the importance of the continued possession of the status of child and the possibility of resorting to posthumous recognition to prove descent from an ancestor who is an Italian citizen.
This opportunity represents a further possibility in the recognition of the rights of Italian descendants abroad, although it requires a careful assessment of the specific circumstances of each case.
