Italian citizenship – the “Minor Issue”
New Circular by the Ministero dell’Interno regarding the ‘minor issue’ in Italian citizenship applications on the grounds of ius sanguinis.
On 3 October 2024, the Ministero dell’Interno issued new guidelines to the courts, the Italian Consulates and the Comune in relation to applications for Italian citizenship by descent (ius sanguinis) and the interpretation of Law no. 555/1912. These guidelines, published by way of Circulare no. 43347/2024, state that where the applicant’s last Italian born ancestor naturalised whilst the ancestor’s child (i.e. the applicant’s parent, grandparent, great-grandparent etc) was still a minor, the application should be refused.
The Italian citizenship law 555/1912 contained two key articles:
Article 12: This article stated that children automatically obtained the citizenship status of a parent e.g. if a father lost his Italian citizenship but naturalised as a citizen of another country, his minor children also lost their Italian citizenship.
Article 7: This article allowed Italian citizens born and residing abroad to maintain their Italian citizenship, even if they were citizens of another country by birthright.
Up until now Article 7 was applied more extensively to these applications.
The Italian Supreme Court (Corte Suprema di Cassazione) decision no. 17161/2023 and the more recent decision no. 454/2024 recommended the denial of applications where the Italian ancestor naturalised as a foreign citizen during the child’s minor age, regardless of the child’s place of birth.
Following the Ministero dell’Interno’s guidelines issued this month recommending that these applications are outright refused, applicants have been forced to carefully examine their family history noting when exactly their last Italian born ancestor naturalised. The guidelines are considered to be extremely restrictive and punitive for descendants of Italian citizens. It is questionable whether the administrative authorities even have the competence to recommend the way in which Italian law is interpreted, but only Parliament should have the right to change the law.
An additional issue that is unclear is whether a ‘minor’ is a child under 21 years old (as was the case before 1975) or 18 years old.
Please note that the Ministero dell’Interno guidelines only apply to future applications.
We have contacted our clients whose applications may be affected by these new guidelines and advised (where possible) of alternative routes for recognition of Italian citizenship. An alternative route is often via a female ancestor who lost her Italian citizenship involuntarily due to being married to a foreign national or when her Italian spouse naturalised as a citizen of another country.
For all new matters we will need to consider the facts of each matter on a case-by-case basis to identify if there are merits for applicants to apply for recognition of Italian citizenship on the grounds of ius sanguinis.
Referendum on Italian citizenship
The Italian government is proposing to hold a Referendum to ask whether the law should be changed to reduce the period of 10 years continous and lawful residence, which is necessary for a non-EU national to be able to apply to become an Italian citizen.
The current period of 10 years continuous and lawful residence was fixed in 1992 (Art. 9 (1) (f) Legge 5 febbraio 1992, n. 91). The Referendum will decide whether this period should be reduced to 5 years, as it was prior to 1992, which is the requirement in most other EU countries.
A petition to hold a Referendum to change the law was signed by more than 500.000 signatories in early September 2024, an initiative promoted by the party Più Europa. The question which would be put to the Italian people is:
«Volete voi abrogare l’art. 9, comma 1, lettera b), limitatamente alle parole “adottato da cittadino italiano” e “successivamente alla adozione”; nonche’ la lettera f), recante la seguente disposizione: “f) allo straniero che risiede legalmente da almeno dieci anni nel territorio della Repubblica.”, della legge 5 febbraio 1992, n. 91, recante nuove norme sulla cittadinanza”?».
Before a date can be fixed for the Referendum however, both the Constitutional Court and the Supreme Court need to pronounce an opinion on admissability, expected in February 2025. The Referendum could be then be held between April and June 2025.
The government estimates that approximately 2,5 million non-EU citizens resident in Italy (including minor children living with persons applying for Italian Citizenship) could benefit from the change in the law. All the other existing pre-conditions will still apply before an application for Italian citizenship can be made, including the need for a certificate of Italian language at B1 level, the requirement to prove an income above the legal minimum together with proof of filing of a tax return unless exempt, and lack of criminal record in Italy or in any country of previous residence. An application for Italian citizenship is any case at the discretion of the Italian State when based on the length of residence.
Confirmation of permanent residence for British citizens
The Ministero dell’Interno has issued guidance to the Comune in relation to British citizens, resident in Italy since before 31.12.2020, the end of the Brexit transition period.
This Circolare confirms that British citizens are still entitled to obtain a certificate of permanent residence from the Anagrafe (“attestazione di soggiorno permanente“).
See below Circolare n. 66/2024 issued on 17th June.
In other words, as guaranteed by the UK-EU Withdrawal Agreement, British citizens continue to have the right to obtain a permanent residence certificate (as provided for in the EU Freedom of Movement Directive and article 16 of Italian Law no. 30/2007). British citizens are entitled to this after 5 years regular and continuous residence in Italy registered with the Comune, even if part of those 5 years were after Brexit.
This is relevant for those British citizens who have not yet obtained Italian citizenship, or have not yet been able to obtain the post-Brexit “carta di soggiorno”, as referred to in the “Vademecum“. You will find other articles on this wesbite posted since Brexit regarding what this is.
The carta di soggiorno is a plastic card which for British citizens is equivalent to a “permesso di soggiorno” in Italy, which is issued by the Immigration Office of the Questura to British citizens who were resident in Italy before Brexit.
That plastic card was not obligatory after Brexit, although in practice British citizens have found life can be impossible without it. It will become crucial post October 2024 for those wishing to travel in and out of the country as from that date a biometric card will be essential for travel in the EU. The British Embassy warns that it is now the time to have all necessary documents in place to avoid future problems.
Delays at the Italian Consulate
Aleksandra Broom was interviewed by the Local Italy on applications for visas and for Italian citizenship. The article considers how the system is frustratingly in deadlock with very long waiting times for an appointment. The situation is dire at the moment, in particular at the Italian Consulate in London which is overwhelmed from applications from British citizens post-Brexit.
Post-Brexit residence questions
The promise made by the UK government to British citizens resident in the EU, that their residence rights would be protected post-Brexit is still a work in progress.
A recent review by the British Embassy revealed that only one-third of British citizens resident in Italy has applied for the electronic “carta di soggiorno” from the Questura. This document is optional and not mandatory, however it is strongly recommended. Due to widespread misunderstanding by the Italian authorities about our new unique status as third country nationals, albeit protected by the UK-EU Withdrawal agreement, this document is without doubt the most effective means of demonstrating permission to reside in Italy.
Permesso di soggiorno
British citizens who were resident in Italy pre-Brexit are frequently and incorrectly asked by Italian authorities to produce a permesso di soggiorno. The computer systems of the Comune and other government authorities require this to be entered automatically when the given nationality is non-EU. British citizens are not required to hold a permesso di soggiorno unless they are applying for residence in Italy after 31st December 2021.
If a British citizen is required to hold a permesso di soggiorno, this implies that they will have entered Italy post-Brexit with a visa issued by the Italian Consulate in their country of residence, for one of the categories of entry visa set out in Law no. 286/1998 as amended (testo unico immigrazione), such as the elective residence visa or a work permit.
We were contacted recently by a British client, resident in Italy for more than 10 years, who was shocked when his accountant notified him that his residence had been cancelled by the Comune. His name and those of other British nationals had been included in a list of non-EU nationals who had failed to declare the renewal of their address (“dimora abituale“), after the renewal of their permesso di soggiorno. The British Consulate intervened in this case. Eventually the error was accepted and his residence reinstated.
We have made representations to the British Embassy in Italy that the application process for entry visas made in the Italian Consulate in the UK is unfairly slow. We have also noticed a substantial rise in the number of refusals of the elective residence visa, often simply due to a misunderstanding by the Consulate of the financial information provided to prove the passive income requirement. This is affecting British citizens who have property in Italy and are applying for residence in order to spend longer than the permitted 90 days at one time in their Italian home.
Any British citizen who does not hold a carta di soggiorno is advised to show the Attestazione di Iscrizione Anagrafica issued by the Comune. In case of an enquiry they can refer to the Vademecum published by the Ministero dell’Interno.
Local courts take over Italian citizenship applications
Applications for Italian citizenship, made by non-Italian residents, on the grounds of descent (ius sanguinis) pre-1948 from a female relative, will no longer be decided by the Civil Court of Rome.
As of 22nd June 2022, applications need to be lodged in the civil court of the Comune where the last Italian ancestor was born, as of 22nd June 2022. (See Law of 26 November 2021, n. 206)
Article 1, paragraph 37 of Law n. 206 states the following:
‘When the plaintiff resides abroad, disputes regarding the ascertainment of the status of Italian Citizenship are assigned having regard to the municipality of birth of the father, mother or ancestor of Italian citizens’.
As of 22nd June 2022 only pre-1948 cases deriving from Italian ancestors born in Rome will be processed via the Rome Civil Court. This will allow the local Italian Courts to process all the remaining applications, which should hopefully in turn result in quicker hearing listings and quicker service of decisions.
Please be advised that the new law has no effect on applications already submitted or that will be submitted before 22nd June 2022, which will be processed accordingly at the Rome court.
For further information about applications based on pre-1948 maternal line cases, and how previous Italian law relating to the transmission of citizenship was declared to be discriminatory and unconstitutional, click the link below to read our 2019 article:
Claims to Italian citizenship through maternal line
Please contact Aleksandra Broom (a.broom@oliverpartners.it) or Liliana Petrolo (l.petrolo@oliverpartners.it) if you have any questions.
Residenza elettiva
Il permesso di soggiorno per residenza elettiva consente l’ingresso in Italia, ai fini del soggiorno, allo straniero che intenda stabilirsi nel nostro Paese e che dimostri di possedere risorse sufficienti a mantenersi autonomamente senza esercitare alcuna attività lavorativa
Requisiti per la domanda di permesso per residenza elettiva:
- disponibilità di un’abitazione da eleggere a residenza (proprietà immobiliare o contratto di locazione di oltre 12 mesi)
- possesso di ampie risorse economiche autonome, stabili e regolari, di cui si possa supporre la continuità nel futuro. Tali risorse economiche possono provenire da: rendite (pensioni, vitalizi); possesso di proprietà immobiliari; titolarità di stabili attività economico/commerciali; altre fonti diverse dal lavoro subordinato.
La domanda di visto viene presentata nel Consolato o nell’Ambasciata nel proprio paese d’origine che valuterà la sussistenza dei requisiti.
Una volta ottenuto il visto, che di solito ha la validità di un anno, si potrà fare ingresso in Italia e presentare nel territorio italiano, presso l’ufficio postale del paese in cui si vuole risiedere, il KIT per la richiesta del permesso di soggiorno, che verrà inviato alla Questura competente.
Inviato il KIT verrà dato un appuntamento presso la Questura competente per visionare la documentazione e rilasciare il permesso di soggiorno.
Dopo cinque anni di regolare soggiorno, in presenza dei requisiti necessari, il titolare di un permesso di soggiorno per residenza elettiva può chiedere il rilascio del Permesso di soggiorno UE per soggiornanti di lungo periodo
La procedura per il rilascio del permesso di soggiorno per residenza elettiva è abbastanza semplice, perché basta richiedere il visto al Consolato di appartenenza, ed in possesso del Visto fare ingresso nel territorio italiano, ed entro 8 giorni lavorativi inviare il cd. KIT allo Sportello amico presso le Poste Italiane per la richiesta del permesso di soggiorno alla Questura competente.
La cosa più complicata per gli stranieri è individuare le condizioni per riuscire ad avere il visto e reperire la giusta documentazione sia per presentare la domanda in Consolato, sia per inviare il KIT una volta arrivati in Italia e da presentare in Questura durante l’appuntamento.
Lo studio Oliver & Partners è in grado di seguire tutto il processo insieme al cliente, cominciando dalla consulenza e la raccolta della documentazione necessaria, previa corrispondenza con il Consolato di interesse, nonché per l’assistenza alla compilazione del KIT e per l’appuntamento presso la Questura.
Carta di soggiorno for British citizens in Italy
Since January 2021 a residence permit in a plastic card format (“carta di soggiorno“) has been available to British nationals and their family members who were resident in Italy pre-Brexit, ie on or before 31st December 2020. By “resident in Italy” we mean that a person’s name and address is registered with the Anagrafe office of the Comune in which they live.
Read our previous article here
The carta di soggiorno, which is issued by the local police headquarters (“Questura”) was specifically designed following the Agreement on the Withdrawal of the United Kingdom from the European Union (Accordo di recesso UK-EU”). The carta di soggiorno should not be confused with the “permesso di soggiorno” which is issued to other non -EU nationals who have permission to live or work in Italy and whose stay in the country is regulated by immigration law.
The distinction between these two types of residence permit is not commonly understood, and most British nationals, faced with an authority who questions their status in Italy as a non-EU citizen will ask for the permesso di soggiorno, but the carta di soggiorno is the document which must be recognised as indisputable evidence of a person’s right of lawful continuous residence in Italy. The carta di soggiorno is not obligatory, as a person’s right of residence post-Brexit can also be proved by showing the document which is supplied by the Comune called the “attestazione di iscrizione anagrafica ai sensi dell’art. 17.4 dell’accordo di recesso“.
When travelling out of Italy and out of the EU a British national should make sure to carry at least one of these documents proving they are resident, although so far the immigration controls seem fairly relaxed and in some cases are known to accept even simply the “carta di identità” which is not in itself proof of residence status.
EU Settlement Scheme – Deadline for submission: 30th June 2021
The UK has left the EU and as of January 2021, the immigration rules to enter and remain in the UK have been changing. It is crucial now for EU citizens to secure their pre-settled or settled status in order for them to be able to continue working and residing in the UK without the requirement of a visa to do so. The following groups of people who are currently in the UK or arrived in the UK by 31st December 2020 can apply under the EU Settlement Scheme:
- EU citizens
- Citizens of Norway, Lichtenstein, Iceland (non-EU EEA citizens)
- Swiss citizens
If you have been living in the UK for less than 5 years you will be granted pre-settled status. After completing a further 5 years you can then apply for settled status.
If you have been living in the UK for more than 5 years you will be granted settled status, also referred to as indefinite leave to remain and can apply for British citizenship 1 year later.
Are you currently outside of the UK?
If you are currently outside of the UK and you have already qualified for pre-settled or settled status you may still be eligible to apply. As long as you are able to provide evidence of previously being in the UK and exercising EU treaty rights, you will be able to apply and will be granted status based on the number of years that you were resident in the UK. Evidence of residence can include: P45s, P60s, bank statements or council tax bills.
Under the Withdrawal Agreement agreed between the EU and the UK, those who are granted settled status can live outside the UK for five years without losing their status. EU, EEA or Swiss citizens who have previously lived in the UK for five continuous years but do not live in the UK at the moment, may also be eligible to be granted settled status as long as they have not been absent from the UK for more than five years since they stopped living in the UK.
If you have not completed your five-year continuous residence currently, you need to make sure that you do not spend more than six months outside the UK in any 12 month period to ensure that you do not break your continuous residence period that you need to qualify for settled status (unless you are spending up to 12 months outside the UK in a single period for important reasons e.g. work, pregnancy, medical care).
The deadline for applications to be submitted to the Home Office is 30th June 2021. For information and assistance with an application please contact Aleksandra Broom (a.broom@oliverpartners.it).
The application does not incur a fee.
New Residence Document (carta di soggiorno) for British Citizens
We have had a number of enquiries from our clients in relation to the new residence document (carta di soggiorno) that is now available for those British Citizens who were legally resident or who had commenced the process of registering their residence in Italy before the end of the transition period i.e. 31st December 2020.
This is not an obligatory document, but we believe it will be very useful to have it when travelling in and out of Italy. British citizens who do not apply for a carta di soggiorno can equally use the “attestazione di iscrizione anagrafica” (issued under art 18.4 Withdrawal agreement) to demonstrate their right of residence in Italy going forward. However the new carta di soggiorno is a plastic card with photograph which is likely to be more durable.
Now the Brexit transition period has ended many British citizens living in Italy are facing requests from employers, banks, schools, Comune to produce a permesso di soggiorno. If you were resident in Italy before the end of 2020 you will never legally be required to possess a permesso di soggiorno, although British citizens who enter Italy and seek residence from 2021 onwards will need to apply for one as they are now non-EU citizens. If you are being asked to produce a permesso di soggiorno this is therefore incorrect and unlawful.
All information about the carta di soggiorno has been provided by the Ministero dell’Interno by way of a Vademecum in English and Italian which is published on the website of the Questura.
Most Questure now have an appointment booking system in place to obtain this carta di soggiorno residence document, and at the same time your fingerprints will be taken. Please check the Questura website for your province of residence.
For our clients in Rome, if you wish to apply for the new carta di soggiorno you need to send a certified email (PEC) to the Questura at this address: immig.quest.rm.regnounito@pecps.poliziadistato.it. You will receive a reply with a letter confirming an appointment with a list of documents required.
