Overview on General Rule and Exceptions
Typically, Italian citizenship can be obtained if one of your parents was Italian at the time of your birth.
If you can’t acquire Italian citizenship through your parents because they were both born in your native country, you can go all the way back up in your direct lineage until you find the first Italian person who first emigrated to your country from Italy and became a citizen of your native country.
In that case, if, for instance, your paternal grandfather emigrated to the United States or Brazil, or Argentina, from Italy and he became a citizen after your father was born, your father was also an Italian citizen by birth and therefore you will be entitled to Italian citizenship as well.
Same goes for your great grandfather if he was the one who first emigrated to the U.S. (or another country) so long as he became a U.S. citizen (or citizen of another country) after your grandfather was born.
A few exceptions, however, apply to this general rule
First, if your ancestor died before 1861, that person could not pass on Italian citizenship because Italy became a unified country only on such date. As you can imagine, though, this exception applies very rarely.
Second, if you were born after August 16, 1992, your parent did not lose his / her Italian citizenship even though he / she became a citizen of your native country prior to your birth. In fact, since 1992 Italian citizens would remain as such even after becoming citizens of other foreign countries.
Third and most important exception: under a citizenship law enacted in 1912, only men were able to pass Italian citizenship to their children (born in Italy or abroad).
Women, instead, whether born in Italy or emigrated abroad but still Italian citizens after their children’s birth, were not entitled to transfer Italian Citizenship to their children. This law was clearly discriminatory and just a few decades later became outdated and in contrast with the opinion of the general public.
Acquiring Italian Citizenship through Female Ancestor
The very expected change took place only upon the enactment of the Italian Constitution in 1948, which finally established equal rights for men and women, including the extension to women of the right to transmit Italian citizenship to their sons and daughters.
Unfortunately, since the Italian Constitution was not retroactive and the citizenship law of 1912 was never repealed, as a matter of law only children born after January 1st 1948 were entitled to receive Italian citizenship from women.
So, once the Constitution was enacted, what happened to children born prior to 1948? Were they able to receive Italian Citizenship from their mothers, provided of course that the father lineage was not available?
The answer, in the beginning, was negative: since the 1912 citizenship law was formally still in place, Italian consulates, short of any other determination, denied all citizenship applications in which the applicant was using an Italian-born female ancestor whose child was born prior to 1948.
Finally, in 2009 this practice was challenged in court and was held unjust and discriminatory. However, since this judicial recourse did not result in the 1912 law being repealed, as of today it is still necessary to go to court and challenge the law and the practice.
Nowadays, based on the precedent established in 2009 and a long line of cases won thereafter, applicants falling in the above category have almost 100% chances of succeeding in challenging the law and receive a judgment that entitles them to successfully apply for the Italian Citizenship through their female ancestor.
Similarly, Courts held unconstitutional discriminatory a law enacted prior to the Italian Constitution pursuant to which women were to lose their Italian citizenship by marrying a non-Italian citizen.
The Judicial Recourse in pre-1948 cases in Italy
The lawsuit to challenge the above mentioned discriminatory laws is brought before the Rome Civil Court, the defendant in this instance being the Italian Government (specifically the Ministry of Interior).
Due to the cited well-established precedents, the Italian Government has determined that it would not appear in Court to oppose these lawsuits and consequently it would not raise any sort of defense.
For this reason, the chances to win this type of cases are incredibly high, however there is still no absolute certainty. Proper documentation needs to be provided and failure to do so may result in the denial of the application.
Two major downsides of these types of proceedings are:
- The cost: the applicant will be required to be represented by an Italian attorney; this cost may be mitigated by the fact that multiple applicants may file a joint petition.
- The timeframe: close to 1.5 years.
Further, if your local Italian consulate has scheduled your appointment for a date which is more than two years away, you may be entitled to bring your request for Italian Citizenship directly before an Italian Court. Same happens if the Consulate denies or does not make a determination on your application.
Contact us today for your Italian Citizenship Application
If you wish to read more regarding the eligibility, process and requirements to apply for Italian Citizenship, read our post Italian Citizenship by Descent. The Path to Italian Citizenship. Our italian citizenship lawyers can guide you throughout the processes of applying and obtaining your italian citizenship!
If you have an Italian female ancestor and you, or one other ancestor, are born before 1948, chances are that you will need to go to Court in Italy and obtain a declaratory judgment granting you the leave to apply for Italian Citizenship at your nearest consulate.
Our affiliate Law Firm in Italy can provide you the required representation to challenge the 1912 discriminatory Italian citizenship law before the Italian Courts. Contact us today for a free evaluation of your Italian Citizenship case.