A "questão menor" da cidadania italiana por descendência: O que você precisa saber

A recent ruling from the Italian Supreme Court, known as the "Minor Issue," has significant implications for those seeking Italian citizenship by descent. This comprehensive guide will help you understand the background, legal interpretations, and future ramifications of this ruling.

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Impact on Minor Children

From the Civil Code of 1865 until 1912, the citizenship of a minor child was always tied to that of their father. A child born in a country that grants citizenship by birth (ius soli) would not lose their Italian citizenship because they inherited it from their father. However, if the father became a foreigner through naturalization, the child would lose their Italian citizenship.

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The 1912 Law and Article 7

Article 7 of the 1912 law stated that an Italian citizen born and residing in a foreign country retains Italian citizenship. Once the child reaches the age of majority, they can renounce their Italian citizenship. However, Article 12(2) of the same law indicated that non-emancipated minor children of individuals who lose citizenship become foreigners if they reside with a parent who holds foreign citizenship.

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The 1983 Constitutional Court Ruling

In 1983, the Italian Constitutional Court declared provisions in the 1912 law that only considered the father for citizenship as unconstitutional. This decision affirmed gender equality, allowing children to inherit citizenship from either parent. However, this ruling applied retroactively only to the 1948 constitution, not back to the inception of the 1912 law.

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The 2023 Cassation Court Ruling

The recent Cassation Court ruling declared that an American-born child lost Italian citizenship when their Italian ancestor naturalized after 1912 while the child was still a minor. The court dismissed the defense that Article 7 of 555/1912 safeguards a minor child from loss of citizenship under Article 12(2), deeming it "unfounded." This decision challenges the long-standing interpretation that Article 7 protects minors with dual citizenship from losing Italian citizenship due to their parents' naturalization.

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Future Ramifications

Italy's legal structure is a "civil law" system, meaning courts are not bound by other courts' decisions. The Court of Cassation's ruling holds finality and cannot be appealed. While the ruling has not directly affected ongoing court cases or administrative proceedings, it may influence future judgments. The Ministry could issue a Circolare to align consulates and municipalities with the recent ruling, potentially rejecting applications where the LIBRA (Lineage Italian Born Relative Acquisition) naturalized while the child was a minor.