Journey through the History of Italian Citizenship by Descent
In this article, we will discuss the historical and legal evolution of Italian citizenship, particularly by descent. Before we begin, remember to also consult the introductory article about the different ways of acquiring Italian citizenship.
The Origins of Italian Citizenship
In Italian law, citizenship is a condition of the individual (called a citizen) to whom the Italian state recognizes the full enjoyment of civil and political rights. Citizenship can be seen both as a status of the citizen and as a legal relationship established between the citizen and the state. Those without Italian citizenship are called foreigners (if they have citizenship of another country) or stateless (if they do not have any citizenship).
In ancient Roman law, the so-called “status civitatis” distinguished a Roman citizen (“civis romanus”) from a non-citizen. Together with the other two statuses (i.e., the status libertatis, which distinguished a free man from a slave, and the status familiae, which distinguished the pater familias from other family members), it was a necessary condition for having legal capacity.
Being a Roman citizen meant enjoying a wide range of privileges that changed over time. In summary, Roman citizenship allowed access to public offices and various magistracies (including the possibility of voting in elections), participation in political assemblies, various tax advantages, and, above all, the possibility of being a subject of private law (with the ability to appear in court and benefit from the mechanisms of ius civile/Roman law).
In the Imperial era, citizenship was granted only by the emperor.
Citizenship in the Middle Ages, initially was granted to those who owned a house within the city walls for a specific number of years and paid taxes. Later, it was extended to various categories of immigrants, with varying provisions.
In general, one could enjoy numerous advantages: economic, legal, and cultural.
But there were also a series of duties, such as paying taxes or defending the community through participation in the military structure.
Clearly, throughout history, the term citizenship has had different uses and meanings: it could indicate how powers and resources were distributed within the political-social order or indicate the relationship between the individual and the political order (in the sense of active participation of the subject in the public sphere).
The Difference Between Being Citizens and Being Subjects
The concept of a subject indicates someone who is subject to the sovereignty of a state and lives in purely passive legal situations (only duties and subjections). In contrast, the concept of a citizen implies the ownership of rights and other active legal situations (obviously always accompanied by duties and other passive legal situations).
It is precisely when the state recognizes the various civil and political rights to the subject that they become a citizen.
In Western countries, it is sometimes possible that, before obtaining full citizenship, one passes through intermediate situations; the reference is to short or long-term residence permits or to the residence card (which in Italy is a sort of permanent residence permit).
Italian Citizenship
As mentioned in the introduction, Italian citizenship constitutes a status of the individual (called an Italian citizen) to whom the Italian legal system recognizes the fullness of civil and political rights.
In Italy, the modern concept of citizenship was born at the time of the establishment of the unified state; it is currently governed by law number 91 of 1992.
Italian citizenship is based mainly on jus sanguinis (by birth, recognition, or adoption, even by a single Italian parent) and, only residually, on jus soli (by birth in Italy to stateless parents or foreign parents whose legal system of origin does not contemplate jus sanguinis).
Other ways to acquire citizenship are: by naturalization, by marriage to an Italian citizen, upon request if born in Italy to foreign parents and residing uninterruptedly until the age of 18. (We recommend reading this article to discover these and other methods in detail).
Legislative Chronology on Italian Citizenship
Citizenship According to the Albertine Statute
The Albertine Statute of 1848 constituted the first fundamental norm on citizenship of the Italian state (which was then formed in 1861). It listed a series of fundamental principles at the base of the then-monarchical order.
Article 24 of the Statute affirmed the equality of the subjects before the law, but only with reference to men, as women were subject to the authority of the pater familias; however, this aspect allowed any matter relating to citizenship (including its loss or reacquisition) to be transmitted to the entire family (woman and children).
Citizenship by Descent in the Civil Code of 1865
The loss and acquisition of Italian citizenship were provided for from article 4 to article 15 of this code. It established the criterion of jus sanguinis, i.e., the child of an Italian citizen (father) was an Italian citizen. Loss occurred due to renunciation (followed by emigration) or by obtaining a foreign citizenship.
Citizenship in Law Number 555 of 1912
The idea of the subjection of the wife (and therefore of the children) to the husband present in the Albertine Statute was found in law number 555 of 1912.
The main features were as follows:
- Jus sanguinis constituted, as in the current regime, the fundamental principle, while jus soli was a residual modality.
- Children followed the citizenship of the father and only residually that of the mother; the latter transmitted the right to citizenship to children born before January 1, 1948 (date of entry into force of the Italian Constitution), according to article 1, paragraph 2 of the law. Thus, in cases where the father was unknown or stateless, children did not follow the citizenship of the foreign father according to the law of the latter’s state (if the foreign country provided for foreign citizenship only jus soli and not jus sanguinis).
- The woman lost her original Italian citizenship if she married a foreigner, immediately assuming the citizenship of the latter.
Cases of dual citizenship were also provided for (article 7). In this case, the child born to an Italian father in a country that provided and granted jus soli citizenship found themselves in possession of both Italian citizenship and that of the country of birth. Dual citizenship was also extended to daughters, even if they could not then transmit their Italian citizenship to children born before January 1, 1948.
Article 12 provided that if the widowed mother (exercising parental authority over the children) changed citizenship after contracting a new marriage, the citizenship of the first-born children remained unchanged (even in the case of automatic acquisition of the new citizenship of the mother).
Women who were foreign spouses of Italian citizens also had dual citizenship (prior to April 27, 1983).
Citizenship in the Italian Constitution
With the advent of the republican Constitution, initially, there was no implementation rule regarding citizenship through maternal lineage until the 1983 law. Despite the equality provided by articles 3 (equality of all citizens before the law) and 29 (equality between spouses) of the Constitution, there was still no law that provided a rule to allow the child of an Italian mother and a foreign father to be an Italian citizen by right of blood (ius sanguinis).
Only in 1975 and 1983 were there significant rulings by the Constitutional Court that intervened to declare the unconstitutionality of the preceding norms (we will analyze these in the following paragraphs). Indeed, with the advent of article 136 of the Constitution, it became possible for the Constitutional Court (a newly established body) to declare the unconstitutionality of legislative norms or acts with the force of law, thus ending the effectiveness of the latter from the day after the publication of the decision.
What were the rulings of the Constitutional Court and the laws enacted as a consequence?
- The ruling number 87 of 1975: declared the unconstitutionality of article 10, third clause, of law number 555 of 1912, regarding the part that provided for the loss of Italian citizenship independently of the woman’s will. This article conflicted with the new constitutional principles as it considered the woman legally inferior to the man and as a subject without full legal capacity (active or passive political rights were not recognized). Moreover, it created an unjustified and irrational disparity of treatment between spouses and among Italian women themselves who married a foreigner (because it made the automatic loss or retention of citizenship depend on the existence or not of a foreign norm, thus on a circumstance extraneous to the will).
- The law number 151 of 1975 (reform of family law) issued as a result of the declaration of unconstitutionality described above. With article 219 of the law, women were allowed the “reacquisition” (better recognition, as established by the Constitutional Court) of citizenship through declaration by the competent authority.
- The ruling number 30 of 1983: here the Constitutional Court not only declared the unconstitutionality of article 1 of law number 555 of 1912 (where it did not foresee that the child of a citizen mother was also a citizen by birth), but also of article 2, paragraph 2, of the same law (which allowed the acquisition of maternal citizenship by the child only in residual hypotheses). From then on, citizenship could be acquired under any circumstance.
- The opinion number 105 of 1983 of the Council of State provided that only those born to an Italian mother from January 1, 1948 (date of entry into force of the Constitution) could be considered Italian citizens, as there could not be retroactive effects of the ruling number 30 of 1983 of the Constitutional Court. (read here for more on this issue).
- Law no. 123 of 1983: established that a child under the age of majority (including adopted) of an Italian father or mother, or born in Italy, is a citizen by birth; it also admitted multiple citizenship. In the case of dual citizenship of a non-native in Italy, they had to choose only one citizenship within one year of reaching the age of majority (article 5). In this way, the previous norm that provided for the automatic acquisition of Italian citizenship iure matrimonii for foreign women who married an Italian citizen was repealed. Finally, the equality of foreign spouses before Italian law was reached and sanctioned, and the important principle of acquiring citizenship through expressed will was reaffirmed.
What is the current legislation on Italian citizenship by descent?
Historically, this concept of transmission of Italian citizenship by descent is linked to the mass emigrations from Italy to other countries and to the figure of the oriundo, i.e., someone born and residing in a country, having descent from parents or ancestors who had moved there from the country of origin.
Today, law number 91 of 1992 is in force, which establishes in article 1 that a citizen by birth is:
- the child of father or mother citizens
- one who is born in the Italian territory if both parents are unknown or stateless or if the child does not follow the citizenship of the parents (according to the law of their state)
- the child of unknowns found in Italy (if not in possession of another citizenship)
Article 3, instead, partially reproduces the text of article 5 of law number 123 of 1983, considering a citizen the adopted child, even foreign, of Italian citizen father or mother, even if adopted before the date of entry into force of the law (therefore, there is retroactivity). On the contrary, the retroactivity of the law is not foreseen in situations like those of article 20 where the citizenship acquired previously does not change except for facts subsequent to the date of entry into force of the law.
Multiple citizenship is always allowed, unlike article 5 of Law number 123 of 1983.
Subsequent laws after 1992 have modified and extended access to citizenship for some categories of citizens excluded for historical reasons.
These are the following laws:
- law number 379 of 2000 in which Italian citizenship is recognized to people born and already residing in the territories belonging to the Austro-Hungarian Empire and their descendants
- law number 124 of 2006 for the recognition of Italian citizenship to nationals of Istria, Fiume, and Dalmatia and their descendants
In summary, according to the current legislation, for the recognition of citizenship by descent from an Italian ancestor, a foreigner (born in a country that recognizes him as its citizen by birth) can request to be recognized as an Italian citizen by right of blood. An important condition is the proof of the absence of interruptions in the transmission of citizenship. This means: no foreign naturalization of the ancestor before the birth of the children and absence of declarations of renunciation of Italian citizenship by the further descendants before the birth of the next generation (as evidence of the non-interruption of the chain of transmission of citizenship).
In case the applicant is residing abroad, the application must be submitted to the competent Italian consular authority for the territory.
In case the applicant is residing in Italy, the application must be submitted to the Mayor of the Municipality where the applicant has established residence. (read this article for more detailed information)
For each stage of the procedure, a special power of attorney with a notarial deed may be conferred to a professional who will take care of the applicant’s interests.
What has been the evolution of citizenship iure sanguinis through maternal lineage?
Briefly, we summarize the events that have marked Italian citizenship by descent / iure sanguinis through maternal lineage (you can read this article specifically dedicated to the subject).
As a result of law number 123 of 1983 and the opinion of the Council of State, we have seen how children born after January 1, 1948, to Italian women who became foreign citizens by marrying foreign citizens were recognized as Italian. However, children born in the previous period were not recognized as Italian.
Of significant importance was the ruling number 4466 of February 25, 2009, of the Court of Cassation, United Sections, which recognized Italian citizenship also for children born before 1948. Consequently, following the ruling of the Constitutional Court number 87 of 1975 and the ruling of the Council of State number 30 of 1983 (previously analyzed), the Cassation established that the right to the “status” of Italian citizen must be recognized to the applicant born abroad, child of an Italian woman married to a foreign citizen under the Law number 555 of 1912 (remember that, according to this law, the woman was deprived of Italian citizenship due to marriage). The reasoning is that the right to citizenship is a permanent and imprescriptible “status” (except for extinction after renunciation by the applicant), therefore it is justiciable at any time.
Therefore, since 2009, judges of the Italian Civil Courts (to which one must resort) have pronounced several rulings recognizing Italian citizenship to children and descendants of an Italian woman, born before 1948. Indeed, this is a type of judicial recognition, not administrative.
In summary, today the citizen residing abroad, after obtaining recognition of maternal descent before 1948, must request the transcription of the Civil Status acts to the competent Italian Consular Authority for the territory.
Conclusions
If you have doubts and want to receive clarifications on Italian citizenship by descent do not hesitate to contact our lawyers specialized in Italian citizenship to receive a consultation.
