In a previous podcast and article, that can be found here, we talked about “1948 cases” and the reform in the state’s judicial system according to which a case needs to be presented at the regional court that covers the jurisdiction of the municipality where the applicant’s Italian ancestor was born. In this article we will provide an update to the information previously given.
Background
Under 1912 Italian citizenship law, only men were able to pass on their Italian citizenship to their children (born in Italy or abroad) providing that, at the time of the child’s birth, they were Italian citizens. This same law prohibited Italian-born women, and women born abroad who held Italian citizenship, from being able to transfer Italian citizenship to their children. The same law also discriminated against women who married non-Italian men before 1948 by stripping them of their Italian citizenship.
This changed with the advent of the Italian Constitution in January 1, 1948, which recognized the right of Italian women to pass on their Italian citizenship to their children, but only to children born after January 1st 1948. Because of this law, Italian consulates reject all citizenship applications whereby the applicant is applying through an Italian-born female ancestor or female ancestor born abroad, whose child was born before January 1, 1948. In 2009 a court case challenged this law, based on its discriminatory and unjust nature, and won. This set a new precedent, and since then applicants who file a “1948 case” that fall under one of the above categories have a high chance of success in obtaining Italian citizenship, because of the legal argument that principles (around gender equality) established in the Italian Constitution should be applied retroactively. This is how courts are able to rule that female ancestors can transfer Italian citizenship to their children, on the condition that they did not autonomously naturalize before the child’s birth. Furthermore, also set forth by the same principle was that women did not lose Italian citizenship by marrying a non-Italian citizen.
Update in law
Originally, all 1948 cases had to be filed before the Civil Court of Rome (Tribunale Ordinario di Roma). However, in June 22, 2022, the Italian government implemented a new law which stated that if the petitioner lives abroad the lawsuit must be filed at the court in the municipality where the Italian ancestor was born. This is significant because it means that courts aside from the Court of Rome can litigate 1948 cases, and this is positive because it has opened pathways for applicants to file lawsuits in the municipality where their ancestor was born; reducing waiting periods as it removed the strain on the Court of Rome.
Other factors that make the likelihood of attaining citizenship via the local courts in Italy high are: the Italian government generally does not represents itself in court, and in the majority of new trials the judges assigned are more lenient in the evaluation of name discrepancies of the Italian ancestors, compared to the judges of the court of Rome.
Documents needed
To apply for Italian citizenship by descent by filing a case in court you will need to gather certified copies of your family’s vital records, including birth, marriage, divorce and death certificates. The naturalization records regarding the ancestor who was born in Italy will also be required.
If you are claiming citizenship through an Italian ancestor who never naturalized you will need to present a Certificate of Non-Existence of Records from USCIS (U.S. Citizenship and Immigration Services), and a Letter of Negative Search from NARA (the National Archives and Records Administration) or the county that covers the jurisdiction where your ancestor lived. All documents must be authenticated with an Apostille and translated into Italian. When applying for citizenship through a court, all translations need to be certified before being filed.
Court process and costs
All 1948 cases are now filed as complaints (ricorsi) rather than petitions (atti di citazione). The court filing fee for citizenship cases filed after February 28, 2023 has been increased to €545 (before it was €286). Other fees relate to certifying the accuracy of the translations. Translations can either be certified in Italy (through a sworn translator who will do this at a local court in Italy) or in the country from where they were issued (in accordance with their legalization regulations), either through the local Italian Consulate or via a local sworn translator whose signature will then be legalized with Apostille. The power of attorney must be signed before a notary public and legalized with Apostille.
Duration of the court process
Once the attorney files the lawsuit a judge will be allocated to the case. Following this, a first hearing will be scheduled. The waiting time will depend on the judge’s availability, but in general it is between 3 and 9 months. In that initial hearing the judge will examine your vital records to ensure they are accurate and in the correct format. A second hearing may be arranged, but this again depends on the judge. If your application is in order and without discrepancies, the judge will grant or deny your claim to citizenship during the hearing or, more likely, between 1 and 6 weeks after the hearing. In this case, a final judgment will be filed with the clerk’s office. Generally speaking, the process is much faster at the regional courts as cases can be filed across the country rather than in a single location (which caused the court of Rome to accumulate large backlogs).
A note on minors
The child’s age of the ancestor is important to consider when determining eligibility for a “1948 case”. If you apply for citizenship through an Italian ancestor who never naturalized, or became naturalized when his/her child was an adult, then the likelihood of being granted citizenship is greater than if you apply through an ancestor who became naturalized while his/her child was still a minor (before 1975 this was under 21 in Italy). With that said, many rulings made by the Civil Court of Rome have been successfully challenged via the Appellate Court.
It is also important to say that other judges within the Court of Rome, as well as the vast majority of judges within the regional courts, have applied the now widely accepted interpretation of the law in relation to 1948 cases, and have ruled in favor of the minor child of an Italian ancestor to maintain both Italian and U.S. citizenship.
Furthermore, if your ancestor, who was born in Italy, emigrated to the U.S., and never naturalized, or naturalized as a U.S. citizen after the child who was born in the U.S. reached the age of majority (21), then the child inherited Italian citizenship and was able to pass it on to the next descendant without any limitations.
It is also worth mentioning that if your male ancestor naturalized while his child was still a minor, this may not affect your application if you have an eligible female ancestor who never naturalized, or naturalized at a later stage, when her child was an adult. In this case, as long as the female ancestor was born in Italy, you can apply through her. For more detailed information about minors see here.
Applying with family members
You can apply as a family if you are claiming citizenship through the same Italian ancestor, and this is encouraged because only the petitioners who are named in the lawsuit will be granted Italian citizenship. If a family member wishes to apply for Italian citizenship at a later date, they will need to file another citizenship claim.
Fiscal Code
Many regional courts require that all petitioners are in possession of an Italian fiscal code, which can be obtained via the Italian consulate.
A successful 1948 case
If you win your case the judge will officially recognize you as an Italian citizen, and the attorney of record will be notified. The attorney will need to wait 60 days for the judge’s decision to be finalized. After that period the attorney can request a certified copy of the final judgment with an official seal that states that the ruling is no longer subject to appeal (sentenza con passaggio in giudicato). The final judgment will then need to be registered through the municipality in Italy where your ancestor was born, along with your vital records. For more information click here.
Next steps once Italian citizenship is granted
Once the final judgment has been issued, and it has been sent to your Italian ancestor’s municipality to be registered with your vital records, the municipality will then register you with the A.I.R.E. (Registry of Italian Citizens Residing Abroad). Once this happens you will be able to apply for an Italian passport at the Italian consulate that covers the jurisdiction where you reside.
This article has given a summary and update as to the process of applying for citizenship by descent through a court in Italy. If you would like further information, or would like to know more about our services and how we can be of assistance, you can visit our homepage or contact us directly and one of our friendly experts will be in touch.
