Citizenship by Descent: Do Minor Children Become Foreigners if Their Parent Loses Italian Citizenship?
Are you a foreigner interested in obtaining Italian citizenship by descent? In this article, we will explain some aspects to be aware of, in light of a new Italian jurisprudential orientation. Before we start, we remind you that you can consult another article on our blog to delve deeper into the subject.
Automatic Italian Citizenship
Let’s briefly summarize the ways in which children living with parents who have become Italian citizens can obtain Italian citizenship automatically. The relevant legislation is Law No. 91 of 1992. Minor children living with the foreign citizen who acquires or reacquires Italian citizenship obtain Italian citizenship but, upon reaching the age of majority, they may renounce it (in case of possession of another citizenship, Article 14 of Law No. 91 of 1992). This means that the minor child of the foreign citizen who acquires Italian citizenship automatically becomes an Italian citizen if living with the parent at the time the latter became an Italian citizen.
However, adult children do not automatically acquire Italian citizenship through the naturalized parent. They must submit an autonomous and separate application in this regard (after 5 years from the parent’s naturalization date).
How is the recognition of citizenship possession regulated for foreigners descending from an Italian ancestor who emigrated abroad?
Law No. 555 of 1912 (prior to Law No. 91 of 1992), already affirmed the principle of Italian citizenship recognition by paternal derivation to the citizen’s child regardless of the place of birth in Article 1, and in Article 7, it guaranteed to the children of Italian emigrants the maintenance of the link with the country of origin of the ancestors, as an exception to the principle of the uniqueness of citizenship. Indeed, it was possible for children to retain Italian citizenship acquired at birth, even if the parent, during their minority, incurred in the loss of the same. The interested party living abroad had the faculty to renounce Italian citizenship upon reaching the age of majority. This rule also derogated from the principle of the dependence of the child’s citizenship fate on that of the father, provided for in Article 12 of the same law.
Therefore, the conditions to obtain such recognition are: the demonstration of descent from the subject originally invested with the status of citizen (the emigrated ancestor) and the proof of no interruptions in the transmission of citizenship (no foreign naturalization of the ancestor before the birth of the child and absence of declarations of renunciation of Italian citizenship by further descendants before the birth of the subsequent generation).
In which cases is Italian citizenship lost?
In general, Italian citizenship is lost when certain situations provided for by Law No. 91 of 1992 occur, and when certain behaviors by citizens, explicitly (with a declaration) or indirectly, wish to cease relations with the Italian State.
The cases are as follows:
- the adopted who has acquired Italian citizenship, but against whom the adoption is subsequently revoked
- the subject who possesses, acquires, or reacquires a foreign citizenship
- the subject child of the one who has acquired or reacquired citizenship during their minority
- the citizen who has accepted a public employment or a public office in a foreign State or Public Entity (or in an International Entity not participated by Italy, or in a State at war with Italy).
However, it is worth noting that the current law allows the citizen who possesses, acquires, or reacquires a foreign citizenship, to retain Italian citizenship, with the possibility of renouncing it in case of established residence abroad.
Problematic issue what happens to minor children if the ancestor (grantor) born in Italy and moved abroad, naturalizes?
An ordinance of the Italian Court of Cassation (number 17161 of June 15, 2023) clarified various aspects on the theme and gave rise to a new jurisprudential orientation. The issue concerned a subject (T.), born in the United States, who requested Italian citizenship by descent from the ancestor (C.), born in Italy. However, the latter had lost Italian citizenship, since he chose to naturalize as an American citizen (in 1924). Consequently, the child (S.) born in America, at the time a minor, had lost it, since he had not applied to reacquire Italian citizenship within one year from reaching 18 years of age (as provided by Article 12 of Law No. 555 of 1912).
Thus, the conclusion reached by the Court of Cassation is that the minor child of an Italian citizen, if he has acquired foreign citizenship (e.g., by birth in the foreign country), loses Italian citizenship as a consequence of the loss of the same by the parent. However, the possibility of reacquiring citizenship in the cases provided for by Articles 3 and 9 of Law 555 of 1912 is preserved.
For the Court, Article 7, paragraph 1, of the cited law, which provides that “except for special provisions to be stipulated with international treaties, the citizen born and resident in a foreign state, who is considered its citizen by birth, retains Italian citizenship, but once of age or emancipated can renounce it,” is not even applicable to the specific case. Indeed, the applicant, having lost Italian citizenship as the minor child of a non-Italian citizen, could not retain Italian citizenship to add it to the American one, and therefore, could neither renounce it nor transmit it to descendants. The cited article is solely referable to the different case of dual citizenship, not existing in the specific case (the applicant, as mentioned, was the son of a United States citizen at the time of birth).
Conclusions
As we have seen, attention must be paid when requesting recognition of Italian citizenship by descent. In particular, while previously the non-naturalization of the grantor at the time of the descendant’s birth was relevant, today it is important to verify what happens during the period following birth (during minority). If the grantor loses Italian citizenship (Article 8 of Law No. 555 of 1912, that is, for having voluntarily acquired foreign citizenship and having established residence abroad), their minor children will also lose it.
(See this article for frequently asked questions about citizenship by descent)
If you wish to have more information, you can contact one of our Italian lawyers specialized in citizenship who will provide you with the best assistance.
