A short history lesson first…
After the unification of Italy, the 1865 Civil Code was the first “national’ guide to the rights and responsibilities of the citizens of this newly formed Kingdom. This Code was also the only reference for how Italian citizenship rights were transferred or lost:
• Art .4 states that the child of an Italian father is also Italian.
• However, if the father becomes a citizen of a foreign country, the wife and the minor children become foreigners as well unless they kept their full-time residency in the Kingdom.
• If the children were born in a foreign country governed by ius soli, such as the U.S, they would receive U.S. citizenship by birth, but would be able to retain their Italian citizenship rights so long as the father did not become a citizen of that foreign country.
Half a century later, the 1912 Law (No. 555) reforms and expands the Italian Citizenship law previously laid out by the Civil Code and it becomes the foundation for all Italian citizenship by descent cases. It presents two (2) different provisions:
Article 7 (Law No. 555/1912) states that a child born to an Italian father (living abroad who has not yet become a naturalized US citizen) maintains Italian citizenship rights even if the child has acquired U.S. citizenship at birth by ius soli (the 14th Amendment to the U.S. Constitution adopted on July 9th, 1868 Section 1) unless the child decides to expressly renounce Italian citizenship once he or she becomes an adult (21 years old up to 1975, 18 years old after that).
Article 12 (Law No. 555/1912) sets forth that a minor child automatically loses Italian citizenship if the father acquires a second (i.e., U.S.) citizenship, no matter where the child was born.
The long-standing interpretation by the Italian Ministry of Internal Affair and by some Italian Courts based on Article 7 (Law No. 555/1912) is that children born in a country that grants citizenship at birth by ius soli retain Italian citizenship regardless of their father becoming a citizen of a foreign country as long as he naturalized after their birth and after July 1, 1912.
For example: Pietro, the son of an Italian citizen, was born in the US in 1914 as a US citizen by ius soli; he inherits the Italian citizenship rights from his father who was still an Italian citizen at Pietro’s birth even if his father later naturalized as a US citizen in 1920 when Pietro was still a minor.
A very recent decision by the Court of Cassation (n. 17161 of June 15, 2023) ruled in favor of the application of art. 12: an American-born child loses his Italian citizenship if the parent becomes a US citizen after 1912 and while the child is still a minor (21 years old up to 1975, 18 years old after that).
The Court went back to the Civil Code of 1865 where the child’s citizenship is tied to his father’s regardless of where the child is born, disregarding any previous court rulings, opinions, and circulars issued by the Ministry of Internal Affair. Their decision is completely opposite to the way the law has been mostly interpreted thus far.
NOTE: Under the Italian judicial system, Court decisions are not binding precedents for other Courts as it would here in the U.S. This means that Italian judges and other relevant Authorities may continue granting Italian citizenship to those who have an Italian ancestor naturalized after 1912 and while the US-born child was still a minor.
What are the future ramifications? For now, NONE.
Italian Consulates here in the U.S. and Italian Comuni have not been directed to change the long-standing interpretation of the law and continue to rule on citizenship cases the same way regardless as to whether the child of the Italian immigrant was a minor at the time of the parent’s change in the citizenship status.
Italian Courts have always been independent in their rulings; in fact, several judges in the past (well before the June ruling by the Court of Cassation) rejected cases that involved the “minor” rule, but the majority were overturned on appeal.
In summary, if you fall under this “minor rule” and if you are applying through the normal administrative route, an Italian Consulate here in the US or a Comune in Italy, nothing has changed. Provided you fulfill the qualification requirements, and you present a “complete” AND “consistent” document portfolio, your application will most likely be accepted.
If you are applying through the Italian courts (1948 Case, Denial of Justice) and you are affected by the “minor rule”, we suggest you look at other family lines, maybe you have an Italian ancestor who never became a US citizen. Alternatively, you should look at the Italian born wife of the male Italian ancestor, to see if she was married before Sept 22, 1922 (US Cable Act) and naturalized involuntarily just by virtue of marriage. Before this date, women would receive derivative US citizenship from their husbands by marriage. Women followed the status civitatis of the man they married and automatically acquired US citizenship via marriage. Based on the Italian Constitutional Court judgment n. 87 of 1975 and of the Italian Supreme Court judgment n. 4466 of 2009, women who acquired a foreign nationality “involuntarily and automatically” because of marriage retain their Italian citizenship, and they are therefore able to transmit it to their children. Thus, an Italian woman who automatically acquired citizenship through her husband, according to the 2009 Court decision, would not have lost her original Italian citizenship (as she did not willingly renounce it) and could validly transfer it to subsequent generations.
In addition, you will have to “challenge” the so-called 1948 Rule in Italy and petition the Italian Courts because most likely the child of the Italian born female ancestor was born before January 1, 1948. The 1948 Rule is an additional requirement that only affects descendants of Italian Female Ancestors. Before Jan 1, 1948, women could hold but not pass citizenship to their children; after Italy became a Republic and a new Constitution was published (on January 1, 1948), more rights were given to women. Now women could finally pass Italian citizenship but only to children born AFTER January 1, 1948. This is still the law, but it has been deemed discriminatory by the High Court in Italy. That’s why you can receive citizenship by basically “suing” the Italian Government in the Italian Courts on the basis that this Rule is against the equality between men and women.
Do you believe you fall under the "Minor Rule" and have questions? Book your FREE Consultation at your convenience
My Italian Family TOGETHER with Mazzeschi, our affiliate Law Firm in Italy, can assist you. During our years of collaboration, we have successfully helped many applicants like you, fulfilling their dream of becoming Italian Dual Citizens. We don’t just give advice, we handle all the purchasing and preparation of your entire portfolio of documents, whether you apply at an Italian Consulate here in the US or you apply in Italy (including 1948 Challenge, Involuntary Citizenship and Denial of Justice Courts Cases). Our experience spans the past 20 years, and we have expert knowledge of what each Consulate requires, as well as what the Italian Courts require. TO GET STARTED AND FOR MORE INFORMATION ON OUR SERVICES, CLICK HERE.
© 2023 MY ITALIAN FAMILY, LLC. All rights reserved.