Stefano Cuomo Avvocato, Family Law Italy – www.familylawitaly.com – s.cuomo@familylawitaly.com – cell.+39/338 5221487

The acquisition of Italian citizenship is regulated by the Law no. 91 of Feb. 5, 1992 which has profoundly innovated in a complete and organic way the previous legislative framework dating back to the pre-fascist era (Law no. 555/1912).

Our legal system accepts the principle of ius sanguinis, i.e. the transmission of the status of citizen by birth, regardless of the place of birth. The recent parliamentary proposals aimed at expanding the cases of acquisition of citizenship iure soli have been set aside, which is why this hypothesis, at the moment, remains basically residual.

Furthermore, there are other cases of acquiring citizenship by naturalization, for the benefit of the law or by communicatio iuris.

Regarding the procedure for the recognition of the Italian citizenship by descent from an Italian citizen (so-called iure sanguinis), this tipically should take place with administrative means, i.e. by the Consulate or the Registrar, depending on the place of living.

However, a judicial way is also enabled to get the recognition of the italian citizenship by blood when specific circumstances occour.

Currently, the recourse to the Courthouse aimed to have it is constantly increasing, since the Italian consular offices are unable to process the numerous requests and often have waiting lists of several years, or even decades in some case to have just the first appointment.

More precisely, there are three cases in which usually it is possible to appeal direct to the judge.

The first one concerns the hypotheses of a descent from an Italian woman born before 1 January 1948, in application of the judgement of the Court of Cassation no. 4466 of Feb. 25, 2009.

The second one is direct litigation with the Registrar, whose refusal has been contested by the interested party. This case requires that the interested party be resident in Italy.

Finally, as abomentioned, if the applicant is resident abroad and the competent Italian Consulate is not able to provide an appointment for the examination of the application within a reasonable time, it is possible to grant a Court judgment before the territorially competent Courthouse, on the basis of the recent case law.

More precisely, the appeal, based on the recent legislative amendment pursuant to the art. 1, paragraph 36, Law no. 206 of Nov. 26, 2021, must be presented before the Civil Court in whose district the municipality of birth of the father, mother or ancestor of Italian citizens is included, and is directed against the Ministry of the Interior and follows the non-fulfillment of the Competent Italian Consulate.

Relating to that, a recent Court of Rome order ruled that: “the uncertainty regarding the definition of the request for recognition of the Italian civitatis status iure sanguinis and the course of an unreasonable period of time with respect to the interest claimed, also involving a infringements of the interest itself, are equivalent to a denial of recognition of the right, justifying the interest in resorting to judicial protection” (see, Trib. Roma, Rg n. 39713/2018, 25.2.2020).

The prerequisite for appealing to the Judicial Authority in such cases had already been initially indicated with regard to the recognition of the statelessness by the Soupreme Court with ruling no. 28873/2008, then taken up by other rulings based on the case law.

Among these, one of particular interest is that of the Court of Rome which clarified that “the provision of a specific administrative procedure governed by Presidential Decree no. 572/1993 does not preclude protection before the ordinary judge, since the interested party has the right to request a certification from the administrative authority or a ruling from the ordinary judge ascertaining his or her status as a citizen and that the Law no. 91/1992 on citizenship does not impose any interested party a prior request to the competent authority for the purpose of recognition of the condition of citizen (see, Trib. Roma, Rg n. 27170/2018, 21.12. 2018).

The assumption to appeal to the Court in such cases, therefore, lies on the fact the administrative authority competent (specifically the Italian Consulates) for the proceding of recognition of italian citizenship by blood is not able to comply with the provisions relating to the terms of the procedure, effectively causing an unreasonable and exaggerated delay to the applicant which is assessed by the Civil Court as a real infringement of the rights of the interested party, such as to justify a direct intervention by the Judge to replace the consular authority.