Introduction
The case study we are presenting is based on Mr P.B., who approached us after receiving a rejection for Italian citizenship by descent. Our client sought to apply for Italian citizenship via ius sanguinis (bloodline) and his great-grandfather was Italian. He submitted his application in April 2022, which was subsequently rejected by the Italian Consulate in Edinburgh in September 2022.
This case study analyses the key facts, legal issues and arguments from our legal team and the Italian Consulate, and the ultimate Italian Government decision.
Facts
- Our client’s great-grandfather, who was his last registered ancestry (LIRA) never renounced his rights to Italian citizenship, and never naturalized as a British citizen. Therefore, the subsequent descendant in line, our client’s grandfather (hereinafter referred to as ‘GF’), was indeed an Italian citizen;
- GF was born in the UK in 1906 and he was a British citizen by virtue of being born on UK soil;
- The Italian Consulate issued a letter rejecting P.B. application to Italian citizenship as the GF lost his rights to Italian citizenship by acquiring British citizenship at birth – pursuant to Article 11 co. II of the Italian Civil Code 1865, which regulated the acquisition of Italian citizenship by descent at that time. In addition, the Consulate argued that GF did not renounce his British citizenship in favour of Italian citizenship upon adulthood, thereby implying the renunciation of Italian citizenship under Article 11 co. III of the Civil Code 1865.
Legal Issues
Loss of Italian citizenship rights:
the main legal issue was determining whether having acquired British citizenship by virtue of being born on UK soil, thus without a formal declaration, would have implied for GF to renounce to his Italian citizenship rights and whether the judgement recalled by the Italian Consulate was pertinent to regulating this case.
The Italian Consulate’s arguments:
The Italian Consulate referred to the Appeal Court of Rome’s judgment on July 5, 2021 (hereinafter referred to as “Ruling”) as the basis for their decision.
The case involves an Italian citizen, who we will refer to as ‘Primo’ for illustrative purposes, who migrated to Brazil in the late 19th century. He became a Brazilian citizen via a decree issued in 1889, by which all immigrants living in Brazil at the time would automatically be considered Brazilian citizens unless they formally chose to keep their original citizenship within six months of the decree being enacted.
The Court ruled that Primo had obtained his Brazilian citizenship automatically; this is because there was no formal evidence of Primo choosing to retain his Italian citizenship within the legal timeframe of the 1889 decree. As a result, the Court concluded that Primo lost his Italian citizenship under the provision of the 1865 Italian Civil Code, which stated that obtaining citizenship in a foreign country would lead to losing Italian citizenship.
Based on this reasoning, the Court also held that Primo’s son, who was born in Brazil and considered a Brazilian citizen by virtue of being born on Brazilian soil, did not have any rights to Italian citizenship through descent (iure sanguinis). The court argued that since Primo’s son had not renounced his Brazilian citizenship in favour of Italian citizenship once he reached adulthood, it implied that he had chosen to sever ties with his Italian nationality. The Court referred to the ‘principle of effectiveness’ and took into consideration that Primo’s son lived and worked in Brazil as an indication of his implicit choice of his Brazilian citizenship.
In summary, the Court determined that Primo lost his Italian citizenship by obtaining his Brazilian citizenship. Consequently, his son did not have a claim to Italian citizenship by ius sanguinis as he did not express his intention to retain his Italian citizenship. Moreover, he was also living and working in Brazil.
In light of the above, the Italian Consulate concluded that GF had no rights to Italian citizenship and, therefore, could not pass it on to its next descendants in line.
Our legal team’s arguments
We thoroughly examined P.B.’s case and we demonstrated that his GF’s acquisition of British citizenship by virtue of being born on UK soil did not automatically invalidate his right to Italian citizenship. The LIRA’s continuous Italian citizenship status was a crucial factor, and the mere acquisition of British citizenship at birth did not negate the eligibility for Italian citizenship by descent.
We highlighted that not only was the Ruling contradicted by consolidated jurisprudence (ex multis, judgment no. 6640/2021, no. 1496/2022, no. 4153/2022, no. 4707/2022, and no. 4711/2022), but it was also contrary to the orientation expressed by the Italian Court of Cassation (‘Court’), United Sections, with the judgements, no. 25317 and 25318, issued on 24/08/2022, whose analysis was completely omitted by the Italian Consulate. The Court ruled that:
- “According to the legal system outlined by the Civil Code of 1865, citizenship by birth was acquired originally through the principle of bloodline (ius sanguinis). Those requesting recognition of citizenship only need to prove the acquisition and the lineage, while any opposing party bears the burden of proving circumstances that may interrupt the acquisition.
- The concept of loss of Italian citizenship should be interpreted restrictively, taking into account constitutional principles and considering citizenship as a fundamental right. Article 11, No. 2, of the Civil Code of 1865 stated that Italian citizenship was lost by those who actively sought and obtained citizenship in a foreign country. This implied that the person who emigrated must have voluntarily and actively pursued foreign citizenship rather than merely establishing residency or settling abroad. Mere residence abroad does not constitute the extinguishing circumstances for citizenship by tacit acceptance.
- The Italian Constitution, Universal Declaration of Human Rights, and the Treaty of Lisbon affirm that every person has a permanent right and inalienable subjective right to citizenship. This principle also applies to the interpretation of pre-constitutional norms, where applicable. The right to citizenship can only be lost by voluntary and explicit renunciation, and not by tacit renunciation.
- The provision regarding the loss of Italian citizenship for accepting employment by a foreign government without permission, should be understood as applying only to strictly governmental positions involving public functions abroad, imposing obligations of hierarchy and loyalty towards the foreign state. These positions should be stable and potentially permanent rather than encompassing any kind of work, whether public or private, abroad.”
In summary, the Court affirmed the importance of citizenship as a fundamental right. It establishes that Italian citizenship acquired by descent is permanent and can only be lost through voluntary renunciation. Merely residing abroad or failing to respond to general naturalisation measures does not lead to losing Italian citizenship. Additionally, the loss of citizenship for employment with a foreign government applies to specific governmental positions involving public functions and not to any type of work abroad.
By presenting these compelling legal arguments and supporting evidence, our legal team aimed to challenge the Consulate rejection and establish P. B. ‘s rightful claim to Italian citizenship by descent.
Therefore, our aim was to have our client’s rejection revoked and/or voidable pursuant to Articles 21-nonies and 21-quinquies of the Administrative Law no. 241 of 7 August 1990, pursuant to which:
- Section 21-quinquies (Revocation of Measures) states: administrative measures may be revoked by the same organ that issued them. The revocatory instrument shall establish that the revoked measure shall not be capable of producing further effects. (See reference).
- Section 21-nonies (Ex Officio Annulment) states: an administrative measure that is unlawful, and also in accordance with Section 21-octies of the same Article, may be annulled by the organ that issued it or organs empowered by the law, if there is ground of public interest. This should be done within a reasonable timeframe and by taking into account the interests of the addressees and parties with conflicting interests (See reference).
The Italian Ministry of the Interior
The Italian Consulate took into account the arguments presented by the legal teams and notified our client that his case would be reassessed by the Italian Ministry of the Interior. The Ministry of the Interior determined the legal arguments we presented were indeed correct, and as a result, the refusal was revoked. Our client’s claim to Italian citizenship was successful.
“Dear Davide,
I am pleased to report that the Italian embassy has now granted my Italian citizenship. Thanks for your advice and intervention on the matter.
– P.B”
Conclusion
In summary, according to the Italian legal system, Italian citizenship is lost only through active and voluntary conduct, not passive behaviour. The interpretation of provision No. 8 of the Italian Civil Code 1865 should align with this principle. In the case at hand, it has been demonstrated that P.B.’s great-grandfather did not become a British citizen, nor was he subject to a foreign law with similar effects to the Brazilian Decree. Additionally, P.B.’s grandfather, who was born in the UK as a British citizen, did not acquire British citizenship voluntarily nor renounce his rights to Italian citizenship tacitly. Therefore, our client’s claim was founded.
Ps. If you like this article, we would appreciate it if you like it, and leave your comment.
Important Disclaimer: The content of this article does not have the character of a periodical and does not constitute a newspaper or an editorial product. It is only for general information purposes and shall not, in any circumstances, be considered bespoke legal advice or professional advice. The control of the information is made only for the content published on this website and not for the contents of the pages that are linked to this website. If you are currently dealing with an individual legal situation, you are invited to contact us.