The Italian legal system recognizes the possibility of foreigners from Italian ancestors acquiring Italian citizenship. Law 91/92, Article 1, confirms the principle of ius sanguinis, establishing that a child of a citizen father or mother is a citizen by birth.
The ordinary procedure is that the application must be filed before the office responsible for the applicant's residence: consequently, either (a) the Consulate, if the applicant resides abroad, or (b) the Italian municipality, if the applicant resides in Italy. The application must be accompanied by a series of documents aimed primarily at ascertaining that the descendants begin with an Italian ancestor and that such ancestor has retained citizenship until the descendant's birth.
As for the timeframe, the deadline for an application submitted to the Municipality is 180 days, while for that before the Consulate, it is 730 days from the submission of the application (Art. 3 of Presidential Decree No. 362 of April 18, 1994). However, the Italian Consulates in places of high Italian emigration, such as the entire American continent, the waiting time even to obtain an appointment is several years.
For this reason, when the applicant proves that the Italian Consulate is unable to meet the aforementioned deadline of two years (preferably through an email or documentation from the Consulate stating or from which one can infer multi-year waits), he or she is entitled to launch a lawsuit before the Italian court for the recognition of Italian citizenship. Suppose the requirement of failure (or potential failure) to meet the legal deadlines is proved. In that case, the court will ascertain the actual descent based on the same documentation that should have been submitted to the Consulate.
The action must be filed with the court having jurisdiction over the Italian ancestor's municipality of birth. Such an action has some advantages:
It is quite quick. In fact, based on the case history, the proceedings usually conclude in a period of between 6 and 15 months. The range depends essentially on the time between the introduction of the case and the hearing set by the judge; unfortunately, it cannot be influenced, as it depends solely on the availability of the judge assigned to the case.
It is a proceeding where the other party is essentially inert: in fact, the defendant in such proceedings is the Italian Ministry of the Interior, which more often than does not even participate or merely asks the judge not to issue an adverse cost order;
If the documentation supporting citizenship is correct, there is a high probability of success.
The only disadvantage of this action is that the court usually does not issue an adverse cost order between the parties; in other words, if the action is successful, the court does not recognize the legal costs incurred by the applicant, who will, therefore, have to pay his lawyer. On this point, I point out that in Italy, it is mandatory to be represented in court by a lawyer, but, as a result, the applicant is not obliged to appear at the hearing, thus representing an advantage if he or she resides abroad.
Finally, a further clarification is that if Italian descent is derived from a female line of succession before 1948, recourse to the Italian courts is the only way to obtain Italian citizenship: the reason is that before 1948, the year in which the Italian constitution sanctioning equality between men and women came into effect, citizenship could not be transmitted iure sanguinis by women to their children, as well as if they married a foreign citizen, they automatically lost Italian citizenship.
If you have questions or would like to pursue the process of recognizing Italian citizenship by descent, please contact our office. We will provide you with information tailored to your case.
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