Italian citizenship is based on the principle of jure sanguinis: this means that a child born to an Italian father or mother is also an Italian citizen, regardless of the place of birth.
An individual may apply for Italian citizenship without limit to the number of generations behind, but the Italian ancestor from whom Italian citizenship can be derived must have been a person who had Italian citizenship in or after 1861.
Italian citizens who emigrated and acquired foreign citizenship automatically lost their Italian citizenship until 1992 (when Italy allowed dual citizenship): before 1992 naturalization in another country could occur voluntarily or involuntarily. Moreover, until 1948, women could maintain but not transmit Italian citizenship to their descendants, only men could transfer their Italian descent to their children, therefore children born to an Italian mother before 1948 are not automatically Italian (to claim citizenship, in this case, it is necessary to submit a Lawsuit in Italy at the Court where in the area Italian ancestor was born).
Regarding minor children, the Law on Italian citizenship n.555/1912 (in force before 1992) contains two conflicting provisions, the art.12 and the art.7:
art. 12 provides that children automatically acquire the citizenship status of their parents, consequently losing their Italian citizenship in case their parents do so;
art. 7 establishes that Italian citizens born and residing abroad, considered citizens of that country by birthright, retained Italian citizenship unless they decided to renounce it once adults or emancipated.
To date, most Italian Judges and Consulates abroad have applied the more favorable provision of the art. 7, thus granting citizenship even in cases where the applicant’s ancestor was a minor when the parents acquired foreign citizenship.
However, two recent decisions of the High Italian Court (Corte di Cassazione) have applied Article 12, by denying citizenship in a case in which the Italian citizen was naturalized during the minor age of the child, regardless of the place of birth of the minor child.
Although in the Italian legal system, the decisions of the Courts (even of the Corte di Cassazione) do not constitute binding precedents, some Italian judges are now following the same interpretation as the Corte di Cassazione (applying the more restrictive art. 12 of Law n.555/ 1912).
Taking these recent decisions into account, it would be preferable to investigate any other family branches without the “minor case” or to search for any female ancestor in the lineage who does not fall within the “minor case”.
ItalianPapers will keep you updated on future developments.
Avv. Paola Caputi