New Italian Law March 2009

[mler]

Hi Joe,

The court ruling you cite is limited in its scope, and, unfortunately, there is no basis to assume that a ruling focusing on one article in a law then applies to all articles of that law. In fact, history proves otherwise.

In 1948, the law changed to allow women to pass citizenship to their children. This was a change of only one article in the 1912 law; it did not, however negate the entire law. You state: "If you invalidate that law, or a section of that law, as the Cassazione court did, I think that the consequences of the law simply disappear. They cease to have any effect." Clearly this is not the case.

As teddi correctly points out, the Italian parliament has not addressed the 1912 law in its entirety, and the Article 1 proposal is bogged down in committee.

Don't assume, too, that any ruling in an Italian court is, by precedent, equivalent to codified law. Precedent is not treated in Italy in the same manner that it is treated in U.S. courts.

I can understand your frustration with this part of the law. Although Italian citizenship law is quite liberal, it also contains a number of inequities. The legislature's failure to make the 1948 ruling retroactive is among them, but there are others I could cite as well.

I wish I could say that your interpretation is correct. It would simplify things for so many people. I am, however, a bit concerned that you may create unrealistic expectations for people for whom the 1948 ruling has created difficulty. I think you will find that the Italian consulates and the Italian comuni will not interpret the Cassazione ruling in the broad manner you suggest.

[teddi]

In fact members of parliament representing Italians abroad, while welcoming the court ruling for the handful of persons it will help, used the occasion to urge action on the bill stuck in committee that would help thousands

[JoeTinLA]

I wish I could say that your interpretation is correct. It would simplify things for so many people. I am, however, a bit concerned that you may create unrealistic expectations for people for whom the 1948 ruling has created difficulty. I think you will find that the Italian consulates and the Italian comuni will not interpret the Cassazione ruling in the broad manner you suggest.

Hi mler,

I appreciate your comments. I think I understand where you're coming from on this.

Your explanation of what the consulates and comuni might do may very well be correct.

However, since this hasn't been tested yet, how do we know that for sure?

In any event, I have retained one of the top immigration lawyers in Rome. He tells me he is confident that he can pursue my claim through my maternal side, using the Cassazione ruling. Pursuing it through my mother's side would spare me the trouble of having to go through my father's side (my father's family emigrated to the US two generations before my mother's).

I think what may happen is that the consulate or comune (or Interior Ministry) might first deny it, or state that the application is incomplete. Then my lawyer would appeal it in court, and the court might grant it based on the Cassazione ruling.

My cousin is a La Sapienza grad and he tells me this is the likely outcome, and in any case that the decision should be cited as part of the application.

Joe

[JoeTinLA]

In fact members of parliament representing Italians abroad, while welcoming the court ruling for the handful of persons it will help, used the occasion to urge action on the bill stuck in committee that would help thousands:
Italiaesteri

Thank you, teddi - good article!

[mler]

I wish you luck with this, but I honestly think an easier approach would be to go through your dad. My son and I both obtained our citizenship last year--my son through his greatgrandfather--and many of those pursuing citizenship have traced their lines to greatgreatgrandparents.

My nephew and two cousins are lawyers in Italy, and they tell me that the Italian legal process is exceptionally slow. With a rather "iffy" interpretation of the law, and an immigration attorney who undoubtedly loves to get new business, it may be a good idea to attack the problem on two fronts. While you're waiting on the legal process, you can begin gathering documents through your father's line. Trust me--it's a lot of fun.

If you do succeed in your legal challenge, do let us know as it would be helpful to others.

[JoeTinLA]

mler - Thank you! I appreciate the help. You and teddi have enlightened me on nuances of this that even my lawyer hasn't told me about. And you're right, he's probably just too excited about the business I'm bringing him (it's not just me, but friends, too...)

[JoeTinLA]

teddi - thanks for the detailed explanation of the 1912 law you gave on the previous page.

I think I understand loud and clear what you're saying -- that the Cassazione ruling only restores citizenship to Italian women who lost it by marrying foreigners before 1948, but doesn't affect their children's right to citizenship.

My understanding, though, was that any Italian CITIZEN, regardless of gender automatically transmits his/her citizenship on to their offspring, in the absence of a renunciation of that citizenship. Under the law predating the 2009 Cassazione ruling, that would have effectively applied only to fathers and mothers not married to foreigners pre-1948. (I think the Italian government just assumes fathers and mothers are married, and treats illegitimates as "outside the law", to some extent.)

My understanding was that this provision about the transmission of citizenship (conferring citizenship de jure sanguinis on offspring) existed elsewhere in Italian law, and that when you apply for citizenship, the consulates or courts, or whatever, were putting at least different two parts of Italian law together, to grant your citizenship.

Now with the new Cassazione decision, since women who were previously not considered citizens are now considered citizens, they can, by virtue of that other provision of Italian law I am referring to but unfortunately cannot cite, transmit their citizenship in the same way as any male Italian can.

Obviously, the husbands of these women couldn't transmit their citizenship, because they weren't even Italian citizens in the first place.

So now, we're equating formerly "disenfranchised" Italian-born women, who have been re-enfranchised, with their brothers -- who were never disenfranchised in the first place.

All the rights stemming from that re-enfranchisement, I would argue, are now restored, including the right or ability to transmit citizenship. Since the transmission of citizenship by a citizen is "automatic" (as I understand it), then the children of these women have now become unrecognized Italian citizens.

I'm probably overlooking something, but this is the way I see it now...

[JoeTinLA]

teddi - I just translated the part of the 1912 law you posted, and it looks like you may be correct, if that is the only Italian law on transmission of citizenship by women.

As I read it, Italian fathers can transmit citizenship, and Italian mothers can do so only if the father is unknown, or if the father has neither Italian nor foreign citizenship, or if the child doesn't automatically receive the citizenship of the father.

That's before the '48 change, of course.

So what they did was simply defer to the father's home country. If the father's home country considers the child a citizen, then the child could not receive Italian citizenship from the mother.

Under that law, there is apparently no automatic transmission of citizenship from mother to child UNLESS those listed situations exist.

Seems very unfair, and I guess they are just starting to mend those inequities, as mler said.

It looks like I misinterpreted the law...

[teddi]

My nephew and two cousins are lawyers in Italy, and they tell me that the Italian legal process is exceptionally slow.

Very true, mler. The Egiziana in this case applied for recognition of jure sanguinis citizenship in 2001. After exhausting her options with the Ministry of Interior, she took them to the Tribunale di Roma in 2003. After appeals at various courts in 2004 and 2006, she finally ended up in the Cassazione court with this decision coming in February 2009. She could have applied via 10 years of residency almost as quickly, and saved a fortune in legal expenses. The 3 year option would have been even quicker.

[JoeTinLA]

Question for the group:

I don't know how Italian law is interpreted, and what the force of precedent is.

It seems, though, that since we are talking about the right to citizenship that this Egyptian-born woman RECEIVED from her grandmother, that the only consequence of the Cassazione ruling was *not* that the grandmother's citizenship was restored retroactively, but also that the Egyptian woman then received Italian citizenship from her grandmother's line.

If that is true, then it seems to me the effect of the ruling is not restricted to restoring citizenship to women who married foreigners before '48, but also extends to their ability to transmit it.

Can someone please correct me if I'm wrong here? I suspect there is something about this I'm missing, but it seems this woman's case is almost exactly analogous to mine, with the exception that I was actually born in Italy.

In any event, I will take mler's advice and pursue it also via my dad's side, just to cover all the bases...

[teddi]

The court ruling only negated the loss of Italian citizenship by marriage to a foreigner prior to 1948. There is no prohibition to women passing citizenship to children on/after 1 Jan 1948, so there is no need for a court to do anything to make it possible.

[JoeTinLA]

Right, but if in this case there was a need to "re-connect the chain" of citizenship at all, it would have been done at the level of the grandmother, who I believe was married before 1948. Once the grandmother's citizenship was re-established, then her children's (the woman's mother or father -- I don't know which) citizenship would have been established, and thereby the Egyptian-born woman would have acquired her own citizenship, as she apparently has.

I think we can infer from what was written about this case after the fact (e.g., Immigrazione Oggi article) that this restores citizenship to the *descendants* of such women who lost it (i.e., the nonna's nipoti). And we can also infer this from what actually happened in this case. The Egiziana actually became an Italian citizen herself, through her grandmother.

The I.O. article specifically talks about the descendants, no?

Has anyone actually seen and read the original Cassazione decision in its entirety? Has it been translated into English?

Maybe the decision doesn't just touch on restoring citizenship to women married before '48, but additionally grants them the ability to transmit citizenship.

The article about the legislator you posted, teddi, is interesting. She seems to be implying that the Supreme Court decision was very deficient because it doesn't help a huge number of people.

Maybe, maybe not. I have no doubt in my mind that if the Parliament passes her law, and Napolitano signs it without any objections by Berlusconi, it will dramatically change things for the better for a lot of people seeking Italian citizenship. Including myself. (Side note: I would have to conclude that Berlusconi's party is blocking this bill for some reason.)

But, could not this woman simply be touting her own horn a bit, calling attention to the importance of her own bill, as legislators do all over the world, including the USA? If her bill passes, then she has scored a big political victory for her constituency. A feather in her cap. (A well-deserved and laudable one, I might add, but a political feather nonetheless.)

What exactly did the Cassazione decision say? Maybe it actually reached further than just restoring citizenship rights to those women, maybe it restored rights to their children, by extension.

I think we won't know this for sure until we actually read the decision.

[teddi]

Again, the court ruling states that the woman did not lose her Italian citizenship by marriage to a foreigner prior to 1948. Given that she remained an Italian citizen, exiting Italian law permits her children born on/after 1 Jan 1948 to gain Italian citizenship through her.

This court ruling does not address Article 1 of the 1912 law restricting women's ability to pass citizenship to a child ( which ended with the new Italian constitution of 1948).

[JoeTinLA]

Again, the court ruling states that the woman did not lose her Italian citizenship by marriage to a foreigner prior to 1948. Given that she remained an Italian citizen, exiting Italian law permits her children born on/after 1 Jan 1948 to gain Italian citizenship through her.

This court ruling does not address Article 1 of the 1912 law restricting women's ability to pass citizenship to a child ( which ended with the new Italian constitution of 1948).

Have you read the ruling? How do you know it only says that?

[teddi]

Because exiting Italian law permits children born on/after 1 Jan 1948 to gain Italian citizenship through their Italian mother- no new court ruling needed.