New Italian Law March 2009

[JamesBianco]

she is a he.

oops! Sorry about that.

[mler]

"JamesBiancoMler you failed to notice this:

grandmother b. 1908 US, married US citizen 1935
mother born 1948

The grandmother would have lost her citizenship because she married a US Citizen before 1948. Her child was born after Jan 1, 1948 yes, but she was no longer able to pass citizenship on.

Now she (the poster) is all set, this legislation opens the door for her.

Provided (as you point out) it does pass.

No, James, I did notice it, but it was my understanding that the loss of Italian citizenship applied only to women born in Italy. If I am incorrect, this poses a real problem for several applicants because this proposal has not been made law; and there's no indication at this time that it will.

[idmaclean]

"JamesBiancoMler you failed to notice this:

grandmother b. 1908 US, married US citizen 1935
mother born 1948

The grandmother would have lost her citizenship because she married a US Citizen before 1948. Her child was born after Jan 1, 1948 yes, but she was no longer able to pass citizenship on.

Now she (the poster) is all set, this legislation opens the door for her.

Provided (as you point out) it does pass.

No, James, I did notice it, but it was my understanding that the loss of Italian citizenship applied only to women born in Italy. If I am incorrect, this poses a real problem for several applicants because this proposal has not been made law; and there's no indication at this time that it will.

James,

that is my understanding as well. otherwise I am not sure I would have started down this path back in December 08.

[idmaclean]

I guess I will find out on November 27th 2009.

[JamesBianco]

James,

that is my understanding as well. otherwise I am not sure I would have started down this path back in December 08.

I missed that she was born in the US!

Then yes, the grandmother would have retained Italian citizenship because her father never naturalized and she was born here.


my bad

[JoeTinLA]

I'm sorry, but I think you are misreading this law. It states that an Italian woman who lost citizenship before 1948 by virtue of marriage to a foreigner now has that citizenship restored.

So, for example, if a woman married a foreign national in 1940, she lost her citizenship, and future children could not obtain citizenship from her line. This has now changed. Since she is now deemed a citizen, she can transfer her citizenship. It does NOT, however, state anywhere in this ruling that she can transfer her now regained citizenship to a child born before 1948.

I see nothing here that would lead one to believe that the 1948 ruling has been rescinded.

I think you're right in your reading of the law, but the Italians who drafted it obviously interpreted differently, in their own way. Some of this has to do with the difference between the Italian and the Anglo-Saxon mindset.

In the USA, we don't necessarily equate having children with being married, but Italians, especially legislators who draft laws, probably do. So much so that they are looking at this from the standpoint of an Italian woman who marries a foreigner, rather than an Italian woman who has a child and can't pass on her citizenship due to the fact that she's a woman.
To the drafters of this law, these two categories are one, but obviously they are not necessarily one in the same thing.

Under the old law, if an Italian woman had a baby of a foreign man, she couldn't pass on her Italian citizenship and obviously the man couldn't do so.... If the woman had an illegitimate baby, even if she were Italian, it wouldn't matter because the baby wouldn't automatically be Italian. Now the fact that she marries a foreign man doesn't negate the baby from being eligible for Italian citizenship. As I see it, if the baby is illegitimate, it is still technically outside the law based on that criteria alone, so wouldn't be eligible by birth anyway unless residency or state work requirements are also met.

[teddi]

I'm sorry, but I think you are misreading this law. It states that an Italian woman who lost citizenship before 1948 by virtue of marriage to a foreigner now has that citizenship restored.

So, for example, if a woman married a foreign national in 1940, she lost her citizenship, and future children could not obtain citizenship from her line. This has now changed. Since she is now deemed a citizen, she can transfer her citizenship. It does NOT, however, state anywhere in this ruling that she can transfer her now regained citizenship to a child born before 1948.

I see nothing here that would lead one to believe that the 1948 ruling has been rescinded.

I think you're right in your reading of the law, but the Italians who drafted it obviously interpreted differently, in their own way.

First of all, Italians didn't draft this law- it's a 2009 Italian supreme court ruling on the 1912 law, in light of the the 1948 constitution.

There's nothing "obviously interpreted differently" from mler's interpretation. The court ruling is very specific- Italian women who married foreigners prior to 1948 are now deemed not to have lost Italian citizenship. Their children born after 1948, who previously would have been born without Italian citizenship, now may have their Italian citizenship recognized. Period.

The court ruling does not touch the issue of children born to female Italian citizens prior to 1948.

[mler]

Agree totally. This Supreme Court ruling (which I am not certain has even been formally adopted as yet) only would establish that woman who married foreign nationals before 1948 retained their citizenship.

It does not in any way indicate that that the rules regarding the transmission of citizenship have changed. As teddi points out, children born before 1948 to Italian woman are still precluded from claiming citizenship through that line.

[JoeTinLA]

Agree totally. This Supreme Court ruling (which I am not certain has even been formally adopted as yet) only would establish that woman who married foreign nationals before 1948 retained their citizenship.

It does not in any way indicate that that the rules regarding the transmission of citizenship have changed. As teddi points out, children born before 1948 to Italian woman are still precluded from claiming citizenship through that line.

OK, the issue of whether it was an actual law passed by the Parliament, or a decision of the Supreme Court, is a valid one, but in this case it's a bit of a technicality apart from any procedural factors about when and how it takes effect.

The point is that I believe if you translate the original Italian link from the Immigrazione Oggi website, it specifically states that the rights of DESCENDANTS of Italian women who lost citizenship before 1948 would be CHANGED.

When I first saw this link, I only skimmed over the Italian article, and it didn't sink in that this was a Supreme Court decision and not a new piece of legislation. So that's my mistake. Nonetheless, I think the consequences are pretty clear.

The header of the article says:

"Cittadinanza italiana: deve essere riconosciuta anche ai discendenti delle italiane sposate con stranieri prima del 1948."

Italian citizenship: must also be recognized to the descendants of Italian women married to foreigners before 1948.

The article says:

"Ora, a seguito di una sentenza pronunciata dalla Sezioni Unite della Cassazione la scorsa settimana, questo limite temporale è stato spazzato via, con la conseguenza che anche i discendenti delle italiane che avevano perduto la cittadinanza, a seguito del matrimonio con un cittadino straniero stipulato prima del 1948, e indipendentemente dalla volontà dell’ascendente, hanno diritto di riacquistare le cittadinanza italiana."

My translation:

Now, following a decision pronounced by the United Sections of Case Review this past week, this time limit has been swept away, with the consequence that also the descendants of Italian women who had lost their citizenship, following marriage with a foreign citizen before 1948, and independently from the will of their ancestors, have the right to reacquire their Italian citizenship.

----------

No, it's not a perfect or a professional translation, but that's the way I read it. They are talking here specifically about the rights of DESCENDANTS of these Italian women who lost citizenship by marrying foreigners before 1948. (Side note: Whether or not these descendants are actually themselves born before or after 1948 is incidental to this whole thing.)

This decision clearly was INTENDED to make it easier for Italian-descended foreign nationals to acquire citizenship from their mother's or maternal line, and obviously was passed to resolve issues stemming from SEXISM. Really, there are only two practical consequences of this: (1) Italian women who married foreigners before '48, and perhaps by extension their descendants, may now be eligible for certain state benefits like welfare and hospitalization, where they may not have been before; and (2) exactly what the article from Immigrazione Oggi states, that descendants of Italian women who married foreigners before 1948 are now eligible to get citizenship through their maternal ancestors' (mother's or grandmother's) line, whereas that chain of citizenship, once cut off by marriage, did not work to confer citizenship rights prior to this decision.

--Just because the decision doesn't specifically address an issue in so many words, doesn't mean there aren't certain practical, legal consequences that flow from the decision.

--To know what all the practical consequences of the ruling are, look at all Italian statutes that have to do with the transmission and rights of citizenship, and see how this new decision affects them.

I have already spoken with a very prominent Italian immigration lawyer, who called this to my attention before I even read it here. (That's why I ended up on this site. At first I had no idea what he was talking about.) He agrees 100% with this interpretation. My cousin is also a graduate of La Sapienza law faculty, but doesn't practice law. He agrees with this reading, too.

I am also told by these attorneys that in making or amending an application for Italian citizenship now on the basis of a maternal line where a woman previously lost citizenship, you must now invoke this new decision in written documents, and specifically cite it, because it is not yet codified in the statues.

[teddi]

mler and I merely pointed out that the Cassazione court ruling doesn't change the 1912 law restricting a mother's ability to pass Italian citizenship to a child prior to 1948.

Instead, it reverses a woman's loss of Italian citizenship through marriage to a foreigner prior to 1948.

Children who were previously prevented from gaining Italian citizenship because their mother lost Italian citizenship by marriage prior to 1948 now have the right to apply for recognition of Italian citizenship.

It's pretty simple.

[JoeTinLA]

In general, after 1948, if an Italian citizen of either gender who has not renounced his or her Italian citizenship before a government has a child with a foreigner in wedlock, that child is automatically considered an Italian citizen from birth, whether or not he or she holds another citizenship. Before 1948 that rule only applied to male Italian parents.

Now, retroactively, the Italian Supreme Court has held that the same rule applies to women who had previously lost their citizenship through marriage before 1948 -- and to their descendants, through their own bloodline.

Now, not only have they been retroactively "re-granted" their lost citizenship, but the rule that they automatically pass on this "latent" (or "unrecognized") citizenship to their children, directly through the maternal line, also applies.

As I understand it, the citizenship is "latent" because whether or not the descendant knows he/she has it, or whether or not they have a passport, the Italian government will automatically recognize it, if it is applied for.

Also, by extension, a holder of latent Italian citizenship passes on his/her citizenship exactly as does a holder of an "active" one -- whether or not that person's descendants are aware of it. So now, all children even of *latent* Italian citizens are de jure Italian citizens, regardless of whether the latent citizenship holder is male or female, or if their right to citizenship was previously cut off by marriage somewhere in their ancestry.

The logical consequence of this is that, barring an overt renunciation of Italian citizenship by anyone in the chain, all future descendants, down the line and looking back on either parents' side any number of generations (at least from the founding of the modern Italian Republic), are latent Italian citizens.

By the way, it seems that this decision clearly invalidates the part of the 1912 law that prevented women married to foreigners from passing on their citizenship. It basically voids the consequences of that law for all of their descendants looking forward, and also effectively nullifies it for all descendants of such women looking backward, from the founding of the Italian Republic.

Please forgive me if I'm re-hashing stuff about unrecognized citizenship that I've seen has already been discussed on these boards. I'm just connecting the dots, partly for my own understanding here, and partly to maybe help anyone who doesn't yet see it.

[teddi]

Yes, it is a bit of a rehash. Feel free though if it's helping you understand the Cassazione court ruling.

The Cassazione court ruling does not state that a female Italian citizen (whether she married a foreign spouse or not) passes citizenship to children born prior to 1948 however. There 's a law that's been stalled in committee in parliament for a few years that would make that change, but it's never come up for a vote.

[mler]

I think, Joe, that you are expanding the stated intent of the ruling. Before 1948, women married to foreign nationals lost Italian citizenship and thus the ability to pass citizenship to their children. Should the ruling be adopted as law, women in this situation would be recognized as having maintained their Italian status and thus the ability to pass on citizenship to their children born after 1948. Unfortunately, as teddi notes, the ability to pass citizenship to children born before 1948 is a separate issue which is not addressed in this ruling.

The bill that has been stalled in committee would change this to allow those born before 1948 to inherit citizenship through the maternal line. It would also simplify reinstatement of citizenship for Italians who naturalized before 1992. Unfortunately, the proposal comes from a minority party, and, therefore, has obtained little support to date.

[JoeTinLA]

The inability of children born of Italian women married to foreigners before '48 to gain Italian citizenship was, as I see it, a direct consequence of the 1912 law.

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.

Pardon me for being a bit outspoken for an upstart novice here. I'm an American business attorney who knows little about immigration law, Italian or American.

But the way I see it, when a high court invalidates a law, or part of a law, any legal consequence of what was invalidated, disappears in a puff of smoke.

The bill stalled in committee would have had the EXACT same practical effect, but what has apparently happened here is that the Cassazione bypassed the legislative branch by declaring that part of the 1912 law unconstitutional.

I also don't think the bill in committee and the ruling were unrelated; the same interest groups and controversies probably drove both. What the legislature was unwilling to do, the court did.

To teddi: I have absolutely no difficulty interpreting the Cassazione ruling. What I meant is that since I've just started delving into the world of Italian citizenship law, I've been flustered wrapping my head around all the various interpretations and misinterpretations of it I've seen, including all the different things I've seen written and heard said about the meaning of "unrecognized citizenship".

I was born in Italy of 2 US-born Italian-American parents and frankly I was a bit shocked when I learned that I was not automatically recognized as an Italian citizen, but had to go through a bureaucratic procedure to establish it.

To mler: what I was told about the effect of the ruling is that it is essentially Italian law already, although not codified law. However, it has the same effect. If your application depends on this decision (mine technically doesn't but this decision actually helps a great deal in my case for administrative reasons), then you simply cite the decision and by law, they have to honor it. Although I think that if you need to rely on the decision, and haven't yet retained an Italian immigration attorney, now is the time to do it, because bureaucrats in a consulate or at the Interior Ministry may not recognize it, and you might have to appeal to a magistrate for a specific ruling.

[teddi]

The 1912 law contains 20 Articles. Article 10 mandates loss of Italian citizenship by a women marrying a foreigner. Article 1 restricts a woman's ability to convey Italian citizenship to a child. The court ruling affects Article 10, not Article 1.

The court ruling applies to a specific sentence within article 10 of the 1912 law:

La donna cittadina che si marita ad uno straniero perde la cittadinanza italiana, sempreché il marito possieda una cittadinanza che per il fatto del matrimonio a lei si comunichi.

The court ruling built upon prior rulings in 1975 and 1983, that negated loss of Italian citizenship by marriages to foreigners after the 1948 constitution took effect. The new ruling negates loss of Italian citizenship by marriage to a foreigner even before 1948. It states the descendants of women who lost Italian citizenship by marriage to a foreigner prior to 1948 may now have their Italian citizenship recognized.

This ruling does not address citizenship of persons born to Italian women prior to 1948, covered by Article 1 of the 1912 law:

E’ cittadino per nascita:
1. Il figlio di padre cittadino;
2. Il figlio di madre cittadina se il padre è ignoto o non ha la cittadinanza
italiana, né quella di altro Stato, ovvero se il figli non segue la cittadinanza
del padre straniero secondo la legge dello Stato al quale questi appartiene;
3. Chi è nato nel [Regno] se entrambi i genitori o sono ignoti o non hanno la
cittadinanza italiana, né quella di altro Stato, ovvero se il figlio non segue la
cittadinanza dei genitori stranieri secondo la legge dello Stato al quale
questi appartengono.
Il figlio di ignoti trovato in Italia si presume fino a prova in contrario nato nel
[Regno].

This article (Article 1) would have been changed by the proposed law sitting in parliamentary committee. The Cassazione court ruling affects Article 10 instead.