Confused on eligibility Jure Sanguinis?

[jennabet]

If Italians only became naturalized in countries that did NOT recognize birth on the soil, every minor child born in Italy would also be naturalized along with the parent and lose his/her Italian citizenship along with the parent and there would be no question as to what's "fair" and "unfair" regarding Italian minors born in Italy or born abroad.

It's only becomes "unfair" when the parent naturalizes in a country that DOES recognize birth on the soil (USA, Canada, South Africa, etc.) because in this case the minor doesn't have to be naturalized because the minor is not a foreigner as he was born on the soil and has citizenship by birth.

So in order to eliminate this "injustice", perhaps Italians should not immigrate to countries that recognize jus soli. Although I'm very glad all four of my grand-parents immigrated to a jus soli country.

[mler]

Although I'm very glad all four of my grand-parents immigrated to a jus soli country.

Me too!!

Actually, though, that the Italian government may attempt to draft a naturalized US citizen does not mean that citizenship was not lost; it simply means that the Italian government was never informed of the naturalization and thus was unaware of the loss. If only Italian records were important, naturalization records would not be such a critical part of the jure sanguinis application process. That process requires that all documents be presented to the consulate so that they can determine exactly when the loss of citizenship occurred. In fact, if there are no naturalization records for an ancestor, the consulate demands records for that ancestor's parents to ensure that derivative naturalization did not occur.

The 1992 law ended the automatic loss of Italian citizenship through naturalization for emigrants and their minor children who did not receive US citizenship jus soli, but this law was not retroactive, and I'm unaware of any pre-1992 legal challenges at the present time. Perhaps one day.

[lvelt]

From an Italian website:

"Italian citizenship by descent is granted by birth through the paternal line (with no limit on the number of generations) or through the maternal line (for individuals born after January 1, 1948). If you were born in any country where citizenship is acquired by birth you may be considered an Italian citizen."

WITH NO LIMIT ON THE NUMBER OF GENERATIONS........

Is this false advertising?

[mler]

Not false advertising. As long as you can trace an unbroken line of citizenship, there is no generational limit.

Of course, you cannot trace your lineage back to a time before Italy became a nation, and more generations mean more documents to prove your case.

[lvelt]

OK:

If we are going to Italy to find a lawyer to help with our Italian Citizenship where do we start?

Philadelphia Consulate said they don't need to see the documents because we do not qualify.

Next step? Flying to Italy at the end of this month.

Thank you for any info.

[mler]

Why not read through the 1948 threads both here and at www.italiancitizenship.freeforums.org

They will give you some very good ideas.

[lvelt]

From: http://www.myitaliancitizenship.com

Q:
I've looked through all the categories on your Qualifying page, but I'm still not sure if I qualify.

A. Whatever your circumstances, remember that there are two principle laws governing Italian citizenship jure sanguinis. The first is that citizenship can only be passed to a child while the parent is still an Italian citizen. That is, parents who became naturalized citizens of their new country BEFORE the birth of their children lost their Italian citizenship and COULD NOT pass citizenship on to them, while parents who became naturalized AFTER the birth of their children COULD pass citizenship on to them. For example, Achille Berto immigrated to America in 1895. He became a naturalized US citizen in 1919 and had a son David in 1921. Citizenship was not passed to David because Achille was an American citizen (naturalized in 1919) at the time of David's birth. Using another example, Massimo Meneghetti immigrated to the USA in 1912, had a daughter Eleanor in 1924 and became a naturalized US citizen in 1936. Citizenship WAS passed to Eleanor because Massimo was still an Italian citizen when she was born.

My Questions?
Eleanor would have been 12 years old. Wouldn't she lose citizenship being that she's was a minor?

My grandfather was born in Italy in 1901 and his father naturalized in 1913. Why would the girl in this answer keep hers and my grandfather lose his?

[suanj]

that your question is just what I have endeavored to describe, that is, the unjust disparities:
-Eleanor born in USA have the US citizenship, but don't lost the right to italian citizenship because Massimo was no naturalized when she born.

-Instead your ancestor was full italian Citizen, born from italian parents in Italy, his Birth act is on italian register of births, but because his father naturalized and he was a minor, your ancestor lost the italian citizenship definitively ...

seeming so, but really the law is unclear, and its unfair application, because, in the facts, it bann
-for all life- to a italian minor the right to think differently from his father naturalized.

So the choice for naturalization of the father, has a beneficial effect on the child born in the US prior to naturalization, because can still obtain Italian citizenship, MA has an bad effect on the child born in Italy ,
because it loses the right to Italian citizenship forever, a right which he has a much greater extent of his brother born in the USA.
It is up to the courts to interpret the law, and I personally believe that there is room for maneuver, because in the laws that I mentioned earlier, is not explicitly clarified what and why they cut out completely from the Italian citizenship the descendants of a child born in Italy.

I think that the choices of a father are valid for the minor child, which lasts up to the minority...

later, when the child becomes an adult, he should be able to ratify or not to ratify the choice that the father has done for him, and in the absence of any effective expression of will on the part of the former child, if it want to maintain or permanently lose Italian citizenship ( so as the father has chosen for him), well in this case the spirit of the law should take over, and the spirit of the law (abt italian citizenship to descendents of italians immigrated in foreign country) it is strengthening the bond with Italy..

but at the moment there is a clear inequality of treatment abt the italian citizenship right, abt a child born in Italy and a child born in USA....
suanj

[jennabet]

but at the moment there is a clear inequality of treatment abt the italian citizenship right, abt a child born in Italy and a child born in USA....
suanj

If you think there is inequality, then you must also think it's unequal that every African immigrant who steps illegally into Italy and gives birth on Italian soil has a child that is not born with Italian citizenship?

I don't think there will ever be any room to maneuver until Italy changes it's citizenship laws. As is the rule for every other country in Europe, Italy does not recognize birth on the soil. It does not matter where an Italian child is born. He is still Italian as long as his father is Italian. If the father is no longer Italian because he became naturalized in another country and has a minor child born in Italy, the child becomes naturalized too and Italian citizenship is lost to both of them.

If the Italian child was born in USA, he is automatically American because USA recognizes birth on the soil. Everybody born in USA is American. An Italian child born in USA is also Italian if his father is Italian because with citizenship by blood it does not matter where the child is born.

I don't see any inequality. Italy has it's own citizenship laws and the USA has it's own laws. It's not unfair for Italy to only recognize jures sanguinis and it's not unfair for the USA to only recognize jures soli.

[suanj]

Hi Jennabet,
I do not do any controversy on the principle, ius soli or jus sanguinis..

I say only that the law relates to the Italian citizenship to descendants of immigrants, you can be interpreted more favorably.
So I'm not judging the law of 1912 entirely, but just in that part a little vague with regard to children born in Italy, it is not explicitly spelled out in all aspects.
I'm just saying you could apply more favorably.

Make discussion of jus soli and jus sanguinis, and make comparisons with other countries it is unnecessary and misleading, because it can be forget that Italy has a long history, and her laws coming from Roman laws, and from Roman law also come many foreign laws.
If Italy does not currently recognize the ius soli has its own reasons, and that should not be put in discussion.

The laws come from history, from the facts, from the life of a nation and if Italy does not intend to give the ius soli, I do not judge.
Ius soli definitely can be a benefit to countries recently formed, with a recent history, with very wide territory, and that were sparsely populated, so you had to create and form a nation, but that is no the story of Italy.
The her laws were formed based on its history and the events that happened Italy.
The Italy knows how to make its own laws and made laws from ancient times.
Do not forget that Italy is a nation of great culture, and who loves her blood in foreign country.
For that recognize the italian citizenship by right of blood.
But it is just a my opinion.
My best regards,
suanj

[jennabet]

Hi suanj. I understand your point of view. But I don't think that Italian minors losing citizenship when the father naturalized is necessarily a bad thing because it is preserving parental rights.

In my opinion, it is far better for the Italian father and for the Italian child that the father's parental rights are strictly enforced. Unfortunately in the USA, parents don't always have a lot of rights and far too many children are being taken away from their natural parents and given to foster/adoptive parents who don't always have their best interests at heart.

In fact, this happened in my own family in the USA when a father's parental rights were terminated even though his child was being raised by his parents. It ended in a major tragedy with the child involved at five years old witnessing a brutal murder that she would have never seen if she hadn't been taken away from her father's family due to the "wisdom" of a "brilliant" family court judge.

I believe it's always in the best interest of a child to have that child remain with their natural parents, in most circumstances. If that meant Italian minors lost their citizenship and it's now considered unfair, perhaps this particular parental right needs to be examined after the fact. But Italy might just consider this "water under the bridge".

[suanj]

Hi,
I think that, as at present, by appealing to the court, and having all the requirements, is recognized by court order the Italian citizenship to descendants by female line born before 1948( and the italy government working in this direction for a new law to wider interpretation of the law as it should be),

so I hope that in next future the descendents of a italian minor child ( as the topic author), naturalized in minor age by father, will have from Italy a good treatment to acquire or reacquire the Italian citizenship, I am saying that it could be possible to find a legal loophole in this good sense, because if the law is pertinent to justice, it seems to me that we should do justice by making easier to acquire or reacquire the Italian citizenship.

Because you should not take away this right as well, just to the choice made by a parent, and it never ratified by the child when he became adult...
just my opinion, hoping greater flexibility on this issue, but at the moment the situation seems blocked, but for me it is not right that..
good week end,
suanj

[mler]

I understand your position, Suanj. You believe it is inherently unfair for an Italian-born child to lose citizenship as a minor when his parent naturalizes even though his younger sibling, born in the US retains Italian citizenship.

In a sense it is unfair, but I will play devil's advocate and explain the reasoning for this. The child born in the US is born with US citizenship and, under Italian law, he is born with Italian citizenship as well because his parent is Italian. This child's older sibling was born in Italy to an Italian parent and, therefore, has only Italian citizenship. When his father naturalizes in the US, he naturalizes too. According to Italian law, naturalization results in the loss of Italian citizenship so both father and child lose that citizenship.

Your argument that the child never made the decision to naturalize is really not valid. According to US law, any child who is affected by decisions made during his minority can rescind those actions when he reaches his majority. So if a minor enters into a contract when he is a minor, he can end (disaffirm) that contract after he becomes an adult. The same thing applies to citizenship. If a child received US citizenship when his parent naturalized during his minority, it is his right to rescind that decision when he reaches adulthood. If he fails to do this, that citizenship action is ratified.

Obviously, most, if not all, minors who received US citizenship in this manner were quite happy with the citizenship status they obtained through naturalization.

That being said, Italian courts have been consistently awarding citizenship to those challenging the law because their Italian ancestor was born to an Italian woman before 1948. It is conceivable that the courts would look favorably on a "naturalized as a minor" challenge. One never knows.

However, I think a "naturalized as a minor" case would be a more difficult one to make. The 1948 cases demonstrate clear discrimination based on sex. The "naturalization as a minor" situation is more difficult for three reasons:

1. The loss of citizenship through naturalization is not discriminatory.
2. As Jennebet noted, Italy has always, and still, recognized the parents' right to make decisions for the minor child.
3. By accepting the US citizenship he obtained as a minor, the adult ratified his parents' decision.

Again, one never knows what the courts may do, but this seems a difficult case to make.

[suanj]

Hi Mier,
I have my opinion, and just for exemple when you say that I said:

The loss of citizenship through naturalization is not discriminatory

Nooo . Instead I said that the different treatment is discriminatory about the loss of the Italian citizenship between a child born in Italy and one born in the USA.

If the law of 1912 aimed to extend the rights to acquire Italian citizenship, it seems to have totally forgotten this right for a child born in Italy.
I understand that is very difficult the Italian Language, but the txt of 1912 law and all explanatory circulars, let me understand that the spirit of law was not to deny a right but to expand it, however unfortunately this does not apply to a child born in Italy. Nothing changed than before the law of 1912, for a child born in Italy but naturalized by his father.
The fact that the 1912 law is old, does not make it right to 100%, as a well the law abt italian citizenship by female line just for who born from 1 jan 1948 and after.
So if a person thinked that his right is denied, it appeals to the court and it can get justice... It seemed impossible years ago..!

We can speak and write for other hours, and no solution, everyone has the right to think what he wants.

Personally I do not answer more on this topic.
We have different opinions, I respect all .. the comparison is meaningful of democracy and mutual respect,
and here we are one family.
Best regards,
suanj

[mler]

You are right, Suanj. We are both looking at the law in a different way, and I totally understand your position.

You are saying that the different treatment of the child born in Italy and the child born in the US is discriminatory. I would agree if there was not the issue of naturalization. The child born in the US was never naturalized; the child born in Italy was naturalized. Given that Italy says that before 1992 naturalization causes the loss of Italian citizenship, that explains the different treatment. Italy is simply saying if you naturalized, you lost Italian citizenship. Nothing more. This is not discrimination; it is just following the letter of the law. That it happens to work against the child who is forced to naturalize (the child born in Italy) is not in and of itself discrimination.

This does not mean that the court will never change its view. Only a few years ago, if yours was a so-called "1948 case," you had no chance of obtaining citizenship. Now the courts have pretty much consistently ruled for the petitioner. It is entirely possible that one day someone may initiate a lawsuit regarding an ancestor who naturalized as a minor, and the courts may rule in his favor. One never knows.

I'm only saying that in this case, Italy is following the letter of the law. It treats all those who naturalized in the same way. That's why I think that a case of this nature may be a bit more difficult to argue. But, as you say, things change all the time, and until such a case is actually presented to the courts, we will not have an answer. It would be interesting, though.