ICA: 1948 cases. Italian citizenship through lawsuit
- WTI Magazine #120 Oct 19, 2019
In last month’s Italian Citizenship Assistance article, we covered Italian citizenship by descent, also known as Jure Sanguinis. This month we want to continue the discussion about Italian citizenship by descent via another route that requires going to court. This situation occurs when making a claim through a female ancestor who gave birth before January 1,1948. In many cases it is possible to get Italian citizenship through an administrative process. However, for people who have a family line going through a female ancestor who gave birth to her child who was your next direct family line ascendant, it then becomes necessary to petition the courts of Rome and go through a judicial process to stake your claim to Italian citizenship.
This judicial process in and of itself can appear to be quite a challenge which some service providing firms might consider complicated and would be unwilling to accept. We, at ICA have a team of lawyers with experience and a successful track record who are capable to handle complex situations. We are proud to have assisted many people with the judicial process as well as other more complex set of circumstances that others are not willing to work with or are unable to work with these types of cases. This was the situation for a client of ours who we are currently assisting. He had been in contact with a number of lawyers but was refused their services because of the complexity of his family history and the associated documentation. This person's claim for citizenship was going to be through his great grandfather who was born in Italy and had a daughter. This daughter was the client's grandmother. Since it was through this client’s grandmother who gave birth to this client's mother before 1948, a judicial claim was in order. To add to the complexity, the petitioners’ grandmother had been divorced a number of times and our client had also been divorced a number of times as well. In Italy, the divorce rate is significantly lower than in the United States and in addition to this, Italian women do not change their last name when they get married. Therefore when there is one name change, not to mention multiple changes for each person in each generation, the clerks in the Italian consulates can become flustered and confused to say the least since this is considered unusual in Italy… something that isn’t straightforward and can prove more difficult for them to process. These circumstances can make a case very confusing for the individuals trying to process these documents.
Nevertheless, thanks to the expertise of ICA's team, we have been able to organize this client’s citizenship packet and he is currently awaiting his court date set for October of 2019.
To clarify and give a little background about the civil rights for women in Italy, before January 1, 1948, women did not have many of the same civil rights as men. For instance, women were not able to vote and were unable to pass down Italian citizenship to their children. At that point in time, Italian citizenship could only be transferred from one generation to the next from father to child, regardless of the sex of that child. However, the laws changed on January 1, 1948, giving all Italian citizens, regardless of their sex, the same equal rights then allowing women to pass on citizenship.. In more recent years, there have been judges in Italy who have looked back at Italian history and the laws of the nation. These judges have determined and ruled retroactively that the laws prior to 1948 were discriminatory and that it was unfair based on Italy’s present-day laws for women not to be recognized in the same way as men. This gave women the same rights retroactively as men to pass down citizenship to the next generation(s). In spite of those antiquated laws being overturned on a regular basis, at this point in time though this has not yet been codified into law. Although, there are many cases which have demonstrated successfully the ability to petition for citizenship through a female ancestor who gave birth before January 1, 1948, and challenge this form of discrimination, people whose cases fall in this category still have to petition the Italian courts to obtain citizenship.
Even though going through the Italian courts and petitioning them directly for recognition of Italian citizenship through a judicial process sounds more complicated than the administrative process as we covered in last month’s article, the judicial process can actually be in some cases much more direct and clear cut. Not only can it be more direct, but because there have been many successful cases, each subsequent case becomes stronger and stronger due to the law being overruled without question. Another upside is that there is only 1 main place where this process can currently be taken care of with a strong track record; Rome, and because each case is well documented and a precedent has been established giving each judge reference material to help them move forward with their rulings.
Because the judicial process has a precedent which has been set and is in a single location, the information is much easier for the judges involved to be able to refer to other cases and arrive at the same interpretation. This process can also be much less involved for the petitioner(s) (yes it is possible for a family group to share one hearing) because they are allowed to be represented in the court of Rome and elect to have an Italian attorney act on their behalf if they so choose. In most cases the petitioner is not required to be present in court themselves if they choose to have someone represent them. Another upside is due to the understanding and success of previous petitioners, the Italian government generally does not challenge these claims and does not even represent itself in court anymore.
Of course, if you are looking for assistance to assess your case if you believe you may need to petition the courts of Rome for Italian citizenship our dual citizenship experts and lawyers are available to be of service to you through this process, feel free to contact us for a free and obligation free consultation.
Just as Jure Sanguinis or citizenship through marriage, it is also necessary to prove your connection to Italy through documentation which we are able to assist you with at ItalianCitizenshipAssistance.com.
Final judgment is usually given within 2-3 months after your final hearing. In general, many petitioners only need 1 court hearing but in rare cases, a second or third court hearing may be required if more documentation or clarification is required. Once the judgment has been made, the Italian government has a set period of 30 days if they want to challenge this ruling, but this is simply a formality and an action we have never seen taken. Again, as we mentioned above, the Italian Government does not even send a representative to court to challenge these claims anymore. At the end of that 30 day period, the final judgment will be delivered. The last step necessary will be to register all of your documents with the Italian municipality where your last Italian born ancestor lived. The actual court order which is issued to you is what will entitle you to complete your registration in Italy which is something we are able to assist you with. Once this registration is complete, you will be fully recognized as a citizen of Italy and able to take advantage of all the benefits that Italian citizenship can offer.
If you are interested to read more about the I948 process click here