question regarding jure sanguinis

[question760]

ill keep this as simple as possible. Do I have any claim to italian citizenship through the jure sanguinis method?

(the following lineage is all on my dads side)

great grand father ---> born in italy... never moved anywhere else and was married to a fellow Italian (not sure of dates but i know he was an italian citizen and died one after the 1860 whatever date)

grandma ---> born in italy as well but married my grandfather (who was a us citizen via the military) and then moved to the states per his wishes. she had my dad years after she became a us citizen through marriage. id imagine they were married and moved to the states sometime in the 40's/50's. my dad was born mid 60's.

dad----> born in america.



my worry is my grandma jacked the chain up by marrying a us citizen and moving to america sometime in the 40's/50's although she was born in italy and her parents were also born in italy. It is to my understanding that one could not possess a dual citizenship once they left italy. I know for a fact she never explicitly renounced citizenship though.

any claims to my great grandfathers citizenship?

[mler]

Your dates are rather confusing. You state your great grandfather died in the 1860's meaning your grandmother was born in that decade. Are your sure your don't mean great great grandfather?

Assuming that is the case and that your grandmother also had an Italian father, she was born an Italian citizen. After the 1922 Cable Act, women did not receive citizenship automatically through their husbands. That would mean if your grandmother became a US citizen in the 40's or 50's, she did so through naturalization.

If your grandmother did indeed naturalize, she lost her Italian citizenship at that time. It was not necessary to formally renounce; citizenship was lost automatically at naturalization. That would end the Italian line and disqualify your father and future generations.

And actually it was possible to have dual citizenship if the foreign citizenship was obtained at birth (jus soli). It was not possible if the foreign citizenship was obtained through naturalization.

[OpusReticulatum]

question760,

I agree with mler that the dates you have provided are a bit confusing.

Try posting your chain of descent again, but filled in with people and dates and places(or approximate dates).
Ex: grandmother: born in (year) in Italy

Also, you mention that your grandfather "who was a us citizen via the military." Was he born in Italy, too?

Do you have any Italian ancestry on your mother's side?

While from what you have posted it appears that you might not be eligible to claim citizenship via the consulates, please keep in mind two things:

1)Dates matter, a lot. Prior to the law change in the 1990s, if a child was born (outside of Italy in a jure solis country) the day after his/her parent naturalized, they were not eligible to claim Italian citizenship through that parent. But, if they were born even just the day before, they were. So, the more precise you can be about dates, ages, where people were born, etc. the better. Sometimes, cases that appear at first glance to be ineligible turn out to be okay. (And sometimes, unfortunately, cases that look okay at first aren't, such as when it's found that a naturalization happened earlier than previously thought.)

2)With the possibility of citizenship through the courts (via a 1948 case) being a possible factor, there might be another avenue available. I don't see a 1948 case jumping out at me here, but it's possible* or there might be one on your mother's side if she has any Italian ancestry. Or there might be one via your paternal grandfather if he was born in the US of Italian ancestry.


*mler is correct that after the 1922 Cable Act, women did not automatically gain American citizenship via through marriage to an American. However, prior to 1948, Italian-born women (who were Italian citizens only, and not born with a second citizenship) who married foreign men (i.e., men who were not Italian citizens) lost their Italian citizenship upon marriage. This is why you need to provide more information with dates. While Italian courts could find that your grandmother lost her citizenship unfairly upon marriage (if it was prior to January 01, 1948), if she subsequently naturalized on her own, prior to your father's birth, then that would not have protected her citizenship, since she lost it through her voluntary action (naturalizing as a US citizen).

But . . . if it was just presumed that she became as US citizen upon marrying your grandfather, but she never actually took an oath of citizenship before a US official, then she might not have ever officially become a US citizen. Given the times and circumstances, that might not have been likely (especially if she voted, had a US passport, etc.) - so I don't want to get your hopes up unrealistically - but we've seen stranger scenarios on the forums before.

So, please try posting your ancestral chain with as much information as you can regarding dates, places of birth, events (marriages, naturalizations, births, etc.) and who is who family-wise. If there's at all a possible route in there (and they're not always obvious) we'll try to help you find it.

[jennabet]

However, prior to 1948, Italian-born women (who were Italian citizens only, and not born with a second citizenship) who married foreign men (i.e., men who were not Italian citizens) lost their Italian citizenship upon marriage. This is why you need to provide more information with dates. While Italian courts could find that your grandmother lost her citizenship unfairly upon marriage (if it was prior to January 01, 1948), if she subsequently naturalized on her own, prior to your father's birth, then that would not have protected her citizenship, since she lost it through her voluntary action (naturalizing as a US citizen).

Marrying a foreigner in Italy prior to 1948 would have also been voluntary on the part of the Italian woman. It's not like there were no Italian men for her to choose from. So why do you think a court might find that the woman lost her Italian citizenship unfairly upon marriage to a foreigner? In a situation like this before 1948 even the children born in Italy as the result of a marriage between Italian mother and foreign father would have been recognized by the state as foreign citizens only.

[mler]

As jennebet notes, marriage was, for most people, voluntary; and in some years, marriage had citizenship implications. Just a few examples:

- Pre-Cable Act in the US, women automatically acquired the citizenship of their husbands, and in some cases, this meant the loss of US or Italian citizenship.

- Before 1983, a woman married to an Italian automatically obtained Italian citizenship.

- Before 1948, a woman lost her Italian citizenship automatically by marrying a foreigner.

I think what OpusRecticulatum is suggesting is that recent 1948 court decisions have affirmed that an automatic loss of Italian citizenship (that is, a loss without a naturalization) can be overturned by the courts. We have already seen some cases of this in pre-Cable Act situations.

However, the Cable Act was a US, not an Italian law. Despite this, it seems the odds are good for the courts to overturn an automatic loss of citizenship by marriage since they seem to regularly ignore pre-1948 rules as they apply to women, as being discriminatory.

And indeed the pre-1948 law was discriminatory in that only a woman could automatically lose citizenship by marrying someone she loved.

In reality, though, I don't recall anyone describing a problem with the consulates regarding a female ancestor automatically losing citizenship before 1948.

-----

This discussion brought to mind another issue. Before 1983, a man could automatically pass citizenship to his spouse; a woman could not. One could, therefore, argue that the pre-1983 law was also discriminatory. I don't think this has ever been challenged, and I wonder how the courts would view such a claim.

[OpusReticulatum]

Marrying a foreigner in Italy prior to 1948 would have also been voluntary on the part of the Italian woman. It's not like there were no Italian men for her to choose from.

Perhaps, but why didn't any of the Italian men who married foreign women lose their Italian citizenship? There were plenty of Italian women for them to choose from as well, but they weren't "punished" for their choices.

So why do you think a court might find that the woman lost her Italian citizenship unfairly upon marriage to a foreigner?

Decision No. 4466 of 2009 of the Court of Cassation

It established that the automatic loss of citizenship by a woman who married a foreign man was discriminatory. Italian men who married foreign women did not lose their citizenship, and the Court of Cassation ruled that women should have been treated the same way.

[jennabet]

If the court ruled that women should have been treated the same, why does the court not also find discriminatory the big fee these applicants are charged compared to applicants who have straight ius sanguine cases? And why does the court not find discriminatory that offspring of these mixed marriages get the sur name of the father only, even if he's a foreigner?

Since there is no plan to include 1948 cases in the ius sanguine citizenship law, at least not that I'm aware of, I think the courts are eventually going to tire of being burdened with all of these cases.

Bottom line. Italian women didn't have to marry foreigners and their position in Italian society should not be compared to men because Italian men had more opportunity to marry foreigners as they were more often out of the country (for war and/or work) when women didn't even leave their parents' homes unless they were married. I speak from experience when I say Italian women didn't have to marry foreigners. My mother, an Italian woman, married my father, an Italian man, in the United States, a place where she could have chosen a foreigner from any number of foreign groups. All four of my mother's sisters did the same and so did all of her female cousins. I myself did not chose a foreigner. My companion is also an Italian through his Calabrian grand-father. Also, correct me if I'm wrong but I don't think decisions by the Court of Cassation set any kind of precedent.

[mler]

That is wrong on so many levels.

Men were free to marry whomever they chose to marry (Italian or non-Italian), but only women were penalized for doing so. Whether men had more opportunities to marry non-Italians is debatable and really not an issue.

That the women in your family (and my family) chose to marry Italians was their choice, but to strip women of their birthright Italian citizenship because they fell in love with a non-Italian was blatantly discriminatory.

The 1948 cases continue to be successful because Italian courts have seen the need to remedy past inequities.

These successful 1948 applicants pay the same fee as other jure sanguinis applicants. Additional costs are incurred because the legal process is inherently costly as are lawyer fees.

The consulates follow the letter of the law without addressing inequality. That is their job. The court system, however, is free to interpret the law and to address inequities. That is why 1948 cases have been so successful.

[OpusReticulatum]

If the court ruled that women should have been treated the same, why does the court not also find discriminatory the big fee these applicants are charged compared to applicants who have straight ius sanguine cases? And why does the court not find discriminatory that offspring of these mixed marriages get the sur name of the father only, even if he's a foreigner?

The court fees to file a 1948 case, while more than the 300 euros to apply JS at the consulates, aren't really that high. The main expense comes from the fees to hire a lawyer. And the Italian government doesn't set the legal fees - that matter is strictly between the lawyer and client.


I'm not sure what you mean about the surname issue. Children of two Italians in Italy get the surname of the father. Children of one Italian and one non-Italian in Italy get the surname of the father. Both are treated the same. And women keep their original surname upon marriage. If you mean to say that the father's surname, and not the mother's, being given to the children is discriminatory, one could make that argument. However, one could also say that it's not right for either parent to decide for the child which surname he or she should get. While a discussion about Italian surname conventions, and if they should change (perhaps to something like that used in Iceland) would be interesting, it's a bit far afield from the issue being discussed in this thread.

Since there is no plan to include 1948 cases in the ius sanguine citizenship law, at least not that I'm aware of, I think the courts are eventually going to tire of being burdened with all of these cases.

People have a right to pursue their citizenship rights in the courts just the same as the many, many, many, many more people who go through the courts to pursue divorces, business matters, various personal claims, and inheritance issues. There might be "a lot" of 1948 cases, but their numbers are greatly overshadowed by any of the other types of cases that I mentioned (plus the many more that I didn't).

If you ever happen to read any of the sentenze issued in some 1948 cases that are available online, you'll find that the courts refer to citizenship as a permanent and inalienable right, one that may be pursued judicially at any time when that right is denied, even when due to unfair legislation.

That sounds like the courts take citizenship cases very seriously and do not view them as merely burdensome and annoying bits of dust that should be brushed away.

Bottom line. Italian women didn't have to marry foreigners and their position in Italian society should not be compared to men because Italian men had more opportunity to marry foreigners as they were more often out of the country (for war and/or work) when women didn't even leave their parents' homes unless they were married.

So, Italian men had more opportunities to marry non-Italians, and therefore they did it more, and because of that they shouldn't have been "punished" with loss of citizenship like the women were? That is a very peculiar argument.

If the Italian government was really concerned about Italians marrying non-Italians, wouldn't it have made more sense to go after the men as well, who were doing it more, and not target only the women (who, as you pointed out, had only limited opportunities to do so)?

I speak from experience when I say Italian women didn't have to marry foreigners. My mother, an Italian woman, married my father, an Italian man, in the United States, a place where she could have chosen a foreigner from any number of foreign groups. All four of my mother's sisters did the same and so did all of her female cousins. I myself did not chose a foreigner. My companion is also an Italian through his Calabrian grand-father.

I speak from experience, too.

I am of 100% Italian ancestry, yet my only route to Italian citizenship recognition is through the courts. And the only reason for that is because the parent my line goes through was born just a little before 1948. My parent's siblings were all born after 1948. So, even though they share the same parents, the same ancestry, and the exact same line of JS citizenship, my parent has to go through the courts while his siblings can all go through the consulates. And the only single difference between them, as far as consulate eligibility, goes is that one of them (my parent) was born before 1948. Let me repeat: they have the EXACT same ancestry.

And there's more. Of my cousins born outside of Italy in this citizenship chain, I'm the only one that is of 100% Italian ancestry. So, all of my cousins (who are not all Italian) are eligible to just go to a consulate, present their paperwork, and be recognized easily (our chain is very clear and direct) . . . but I cannot. I have to go through the courts.

I speak Italian, am involved with Italian cultural organizations that promote Italian heritage and culture, visited our relatives in Italy - more than once, keep in contact with our Italian relatives, devoted years to learning about my Italian heritage (and by that I mean the local histories of where my family is from, as well as the overall history and folkways of the Mezzogiorno - not just the usual food and Michelangelo stuff), and have identified very strongly with Italy since childhood (to the point of pursuing Italian citizenship recognition many years ago, only to be heartbroken by the 1948 rule). I grew up about as connected to Italy as a disapora-born person can be. And I have a clear line of JS, the exact same one as my eligible cousins. Yet the consulates will not recognize me simply because my parent was born to woman with Italian citizenship before 1948.


But to you, apparently, people like me are just "burdensome" to the courts.

Also, correct me if I'm wrong but I don't think decisions by the Court of Cassation set any kind of precedent.

While it is true that Italy follows the Latin law process, rather than the English one (in which judgments issued by the highest court in the land set precedent and can overturn laws), and therefore a decision against a law by the Court of Cassation doesn't nullify the law, their rulings are very seriously considered by the lower courts. In Latin law, the concept of jurisprudence constante comes into play: While the rulings of Court of Cassation do not control the rulings of the lower court, they are persuasive to the lower courts, especially when there has been a series of similar rulings.

So, while the Court of Cassation cannot, for example, abrogate a section of a law that is found to be unconstitutional, their rulings are very influential when the lower courts make decisions in similar cases concerning challenges to that section of said law.

[jennabet]

OK, I understand but I hope, after you have burdened the courts in order to get one upmanship on your relatives who automatically qualified for recognition through the consulates, that you intend to live in Italy and contribute to the economy instead of using your Italian passport for bragging rights or to live in some other country in the EU. Since I came to Italy immediately after my passport was issued and have been here ever since, I would find it disconcerting, indeed, if I needed to use the Italian court system and found it backlogged by the many people who don't live in Italy, may never live in Italy and don't contribute to the Italian economy but think they should have Italian citizenship even though they don't meet the requirements of the law.

[jennabet]

OK, I understand but I hope, after you have burdened the Italian courts, that you intend to live in Italy and contribute to the economy instead of using your Italian passport for bragging rights or to live in some other country in the EU. Since I came to Italy immediately after my passport was issued and have been here ever since, I would find it disconcerting, indeed, if I needed to use the Italian court system and found it backlogged by the many people who don't live in Italy, may never live in Italy and don't contribute to the Italian economy but think they should have Italian citizenship even though they don't meet the requirements of the law. My mother could not pass citizenship to me but my father could and did. You may be 100% Italian descent but the fact that you apparently don't meet the requirements of the law on either side should be the end of it, in my opinion.

[mler]

Actually, the courts interpret the law (not individual citizens whether or not they live in Italy), so if the courts recognize citizenship, it means that person does indeed meet the requirements of the law.

[OpusReticulatum]

OK, I understand but I hope, after you have burdened the courts in order to get one upmanship on your relatives who automatically qualified for recognition through the consulates,

Yes, having to wait 20 years for the opportunity to get recognized, spend quite a bit more to do it, and then wait three to fives times as long . . . that's the definition of one-upmanship right there. I'm really getting one over on my relatives!!!

that you intend to live in Italy and contribute to the economy instead of using your Italian passport for bragging rights or to live in some other country in the EU.

If there was no 1948 issue, I very well might have been living in Italy and contributing to its economy for the past 20 years. Because of the field that my educational background was in, Italy would have been the perfect place to work.

At this point, moving permanently to Italy might not be feasible, but I do intend to contribute to Italy, both economically and otherwise. Though my career has taken a different path than it could have two decades ago, there is still work in at least one of my specializations that I plan on doing over there, even if I don't live there on a permanent basis.

Since I came to Italy immediately after my passport was issued and have been here ever since, I would find it disconcerting, indeed, if I needed to use the Italian court system and found it backlogged by the many people who don't live in Italy, may never live in Italy and don't contribute to the Italian economy but think they should have Italian citizenship even though they don't meet the requirements of the law.

Your argument for complete perfection is not helpful. It can keep going and going.

For example: If all Italian citizens lived and remained in Italy, there would be no need for consulates. Their primary purpose is to provide for the administrative needs of Italian citizens outside of Italy. Italy could save a significant sum if all Italians just resided in Italy permanently (like you). The needs of Italians who are visiting on holiday could be handled by the embassies (which have to be there anyway, for diplomatic reasons). The Italian citizens who are living in estero are doing so voluntarily. So, aren't they a burden and a drain on Italy, too? Should Italy close all of the consulates and leave its citizens in estero on their own? Of course not, that would be absurd. But for you to remain logically consistent, the answer would have to be "yes."

I appreciate your passion for this issue, and I understand that you are coming at this from a different perspective since you moved to Italy and live there permanently. However, please keep in mind this this is not, and has never been, a one-size-fits-all kind of thing.

In having these discussions, please remember that in a world filled with millions of Italians, past and present, not everyone has had the same experiences, circumstances, or opportunities. What was the right choice for someone might not have been good for someone else. Some had more challenging circumstances than others. Some had different motivations or obligations than others. And in addition to all of that, there are the circumstances that one does not have control over. Sometimes opportunities open up, and sometimes things happen and opportunities are lost.

All of us in this discussion, and almost all of us on this site, are the descendants of people who left Italy - for whatever reason. And they all faced different situations when they arrived in whatever country they emigrated to. Preserving JS citizenship availability for their grandchildren and great-grandchildren was probably not high on their list of priorities.

Given all they went through (the difficulties and challenges, the pressure to assimilate, the push to get them naturalized, the discrimination, etc.), that there are, today, among their descendants, people who are still eligible for JS citizenship (either via the consulates or the courts), and who actually care about it enough to do something about it, is pretty amazing. If the social drivers of the day back then had had their way, none of us - including you - would care at all about Italy or being Italian. But, somehow, some of us had ancestors who provided their families with enough of a connection to overcome the assimilation odds and to leave them with an Italian cultural identity. And some even managed to leave us with a direct link to Italy via JS eligibility.

I would think that someone who is as proud of her Italian heritage as you would view that as a good thing, something to celebrate, not to disparage. Whether we're pursuing citizenship recognition because we "want to feel a closer connection to Italy" or because we want to do what you did and move there permanently - or any of the many reasons in between . . . I would encourage you to see this as diaspora Italians who, despite the pressures the generations before them felt to assimilate, still ended up with an identification with Italy and being Italian, and who feel connected enough to it to pursue Italian citizenship. And that is a good thing. Are there a few out there who just want the second passport so they can show off, even though they don't know Milano from Palermo? Of course there are. But why concentrate on them? There are always a few people like that in every group.

And as for those who are pursuing 1948 cases, they are taking on additional time and expense to take a chance on this. They aren't doing it just as a lark. They wouldn't do this if Italy and Italian citizenship meant nothing more than a shiny new passport to keep in a drawer somewhere. And after having to fight for it, you can be assured that that's one group of people who won't be taking their Italian citizenship for granted.

[jennabet]

I tried to edit my thoughts on one upmanship but was not able to so I apologize for those comments. But I also don't think it's right that you accuse the Italian state of discrimination because you don't meet the requirements of the law on either side.

[mler]

It really is impossible to edit our posts after a certain period of time.

Try not to think of these court cases as an attack on Italy because they are really not. Italian laws were indeed discriminatory, but also discriminatory were the laws of other countries including the US. It wasn't until the Cable Act that women could determine their own citizenship despite their marital status. Nor could women vote. Unfortunately, historically countries have not been kind or fair to women and minority groups.

When we see the discrimination in past laws, we are, of course, making judgments from a present-day perspective. The world was very different then. I think what the courts in Italy are attempting to do is to undo past discrimination in a manner that is consistent with current values.

Italy should not be criticized because some of its old laws were discriminatory; rather, it should be praised for its flexible approach, one that may be more costly to applicants but one that attempts redress past inequities.