The ‘Minor Issue’ in Italian Dual Citizenship: A Recent Legal Twist

Understanding the Complexity

If you’ve been navigating the world of Italian dual citizenship, you may have come across the term “minor issue.” No, we’re not talking about a small problem – it’s actually a significant legal consideration that’s recently thrown a curveball into the process.

On October 10, 2024, the Italian Ministry of the Interior issued a circolare which unfortunately threatens pending applications for citizenship with a “minor issue.” At Get Italian Citizenship, we believe that this circolare is illegitimate and also will see two unintended consequences – a likely surge in appeals, and more cases being filed through the courts. Could this development catch the Italian Ministry of the Interior off guard? We think so.

Let’s dive into what this means and why it matters.

The Historical Context

To understand the “minor issue,” we need to take a quick trip back in time. Italian citizenship law 555/1912, which came into force on July 1, 1912, had two key provisions that are now causing some confusion:

1. Article 12 stated that children automatically followed the citizenship status of the parent exercising patria potestà. This meant if that parent lost Italian citizenship, so did the child.
2. Article 7, on the other hand, allowed Italian citizens born and residing abroad to keep their Italian citizenship, even if they were citizens of another country by birthright.

What is Patria Potestà?

In Italian law, patria potestà (Italian: “power of a father”) was the authority that the male head of a family exercised over his minor children, his wife, and adopted family members. This concept was abolished in 1975 with Law no. 151/1975, granting women equal rights and duties to those of a father. Today, Italian law recognizes responsabilità genitoriale (Italian: “parental responsibility”) instead of patria potestà.

For years, the Italian Ministry of Internal Affairs and many Italian courts leaned towards Article 7. They interpreted the law to mean that children born in countries with birthright citizenship (like the U.S.) could keep their Italian citizenship, even if their father became a citizen of another country after their birth (as long as this happened after July 1, 1912).

The Recent Plot Twist

Here’s where things get interesting. In 2023 and 2024, the Italian Court of Cassation made two groundbreaking decisions that have shaken up this long-standing interpretation. These rulings favor Article 12, meaning:

• An American-born child would lose their Italian citizenship if their parent became a U.S. citizen after 1912 while the child was still a minor.
• Before 1975, “minor” meant under 21 years old. After 1975, it changed to under 18.

Up until a few days ago, only the Court of Rome and very few judges in courts across Italy declared the “minor issue” a disqualifying factor.

What This Means for Dual Citizenship Seekers

Now, you might be thinking, “Does this mean I can’t claim Italian citizenship if my ancestor naturalized when my parent or grandparent was a minor?” Not necessarily. Here’s the kicker:

In the Italian judicial system, court decisions don’t set binding precedents like they do in the U.S. This means that other Italian judges and authorities can still choose to grant Italian citizenship based on the previous interpretation of the law, though a precedent does tend to hold weight.

The Road Ahead: Potential Changes

While recent Court of Cassation rulings have complicated matters, it’s crucial to understand that this may not be the final word. The legal landscape surrounding Italian dual citizenship is dynamic and ever-evolving. Here’s what you need to know:

1. Potential for Future Rulings: There’s a possibility of a favorable Court of Cassation ruling in the near future. Some legal experts even anticipate that the Joint Sections of the Court might eventually weigh in, which could significantly impact how the “minor issue” is interpreted.
2. Ongoing Legal Challenges: Many citizenship cases involving this specific issue are currently being denied. However, a number of plaintiffs are likely to keep appealing to the Court of Cassation. This persistence
3. Historical Precedent: It’s worth noting that similar legal back-and-forths have occurred in the past. The “1948 cases” (involving maternal lineage citizenship claims) saw multiple interpretations by the Court of Cassation before the landmark Sezioni Unite ruling no. 4466 of 2009, which is now the basis for many citizenship petitions. increases the chances that the Court will revisit this matter and potentially reevaluate its position. This is also what happened with the so-called “Great Naturalization” of Italians who moved to Brazil, which Italy ruled constitutional, then reversed (it is now unconstitutional).
4. Law as an Evolving Entity: Remember, law is not static. It constantly evolves to reflect changing societal norms, interpretations, and precedents. The current interpretation of the “minor issue” may not be the final one.

Possible Challenges and Loopholes

Despite the recent rulings, there are several potential avenues to challenge the “minor issue” or find alternative paths to Italian citizenship:

1. The Cable Act Loophole: This applies to cases where the naturalizing ancestor was male. If he both became a U.S. citizen and married his Italian-born wife before September 22, 1922, you might have a viable claim. Here’s why: Before this date, foreign women automatically lost their citizenship upon marrying an American man. In the 1970s, Italy ruled this automatic loss of citizenship unconstitutional. You can petition the court arguing that your female ancestor should be considered to have never lost her Italian citizenship at all.
2. 1948 Cases: If you have a female ancestor who never naturalized (or who naturalized after her child reached the age of majority), you might be eligible for a “1948 case.” This route allows you to petition through the court system rather than going through a consulate.
3. The Patria Potestà Argument: This approach highlights the historical discrimination against women in Italian law. The argument goes: Until January 1, 1948, women could rarely pass on citizenship to their children. If only a father’s loss of citizenship could impact a minor child’s citizenship, then the mother’s citizenship status was inconsequential. Therefore, as long as a mother maintained her Italian citizenship after the birth of her U.S.-born child, she should still be able to pass on that citizenship. This argument has been successfully used in Italian courts by highlighting the sexism inherent in the old laws.

Possible Upcoming Joint Sections (Sezioni Unite) Ruling

The possibility of a Joint Sections ruling is particularly significant. Here’s why:

• The Sezioni Unite or Joint Sections is a special panel of Italy’s highest court, the Court of Cassation.
• It consists of nine judges and carries substantial weight in the Italian legal system.
• The Joint Sections are responsible for ensuring uniform interpretation of the law across Italy.
• If they were to rule on the “minor issue,” it could provide a more definitive interpretation that lower courts would likely follow.
• This is similar to what happened with the 1948 cases, where a Joint Sections ruling became the basis for many subsequent citizenship petitions.

What This Means for You

If you’re in the process of seeking Italian dual citizenship or considering it, here’s what you should keep in mind:

1. Stay Informed: Keep abreast of legal developments. The interpretation that applies to your case today might change tomorrow.
2. Don’t Give Up: If your case is initially denied due to the “minor issue,” remember that appealing might be worthwhile, especially as new rulings emerge.
3. Seek Expert Advice: Given the complexity and evolving nature of this issue, consulting with legal experts specializing in Italian citizenship law is more important than ever.
4. Be Patient: Legal changes take time. If you’re passionate about claiming your Italian heritage, remember that persistence often pays off in immigration matters.

Conclusion

The “minor issue” in Italian dual citizenship perfectly illustrates the complex and dynamic nature of immigration law. While recent court decisions have created new challenges, they haven’t closed the door on dual citizenship claims. As we’ve seen, the legal landscape continues to evolve, and future rulings may bring new interpretations and opportunities. Whether you’re just starting your journey towards Italian citizenship or facing obstacles along the way, remember that the path to reconnecting with your heritage is often as rewarding as the destination itself.