1948 Rule – The Judicial Precedents
News update:On June 22, 2022, new legislation regarding Citizenship by Descent became effective (art. 36 law 206/2021). As of that date proceedings for the establishment of Italian citizenship must be submitted to the District Court in the ancestor’s native town.
Equality of gender and right to transmit citizenship
The 1948 Rule, also known as the female line rule, enables children born to an Italian mother prior to 1948 to claim Italian dual citizenship before the Courts in Italy.
Before the rule came into effect those claiming Italian citizenship jure sanguinis could only do so through the male line of ancestry. The law governing citizenship, enacted in 1912 (no. 555), did not allow for it to be passed from the mother.
In 1983, the Italian Constitutional Court ruled that this provision of the 1912 law was unconstitutional because of the unequal treatment of men and women at its core. The Court said that the provision should be read as a child can acquire Italian citizenship from either an Italian father or an Italian mother. In the same year a new law ensuring Italian citizenship rights for women passed (no. 123/983). The law included a provision which states that a child derives Italian citizenship equally from either parent, putting women’s Italian citizenship rights on par with men’s. Therefore, the issue was resolved.
But what about the children born to an Italian mother prior to 1983? The law was not retroactive, and this legal dilemma led directly to the 1948 Rule.
How the Government applies the 1948 Rule
For those born prior to 1983, the Ministry of the Interior requested a specific ruling from Italy’s highest legal-administrative consultative body, the Consiglio di Stato.
The Consiglio affirmed that the equality principle applies only to children born after January 1, 1948–this being the date the Italian Constitution was adopted.
For this reason Italian consulates and municipalities only accept applications for Italian citizenship of children born to an Italian mother after January 1, 1948.
How civil judges apply the 1948 Rule
Although most civil judges initially agreed with the ruling of the Consiglio di Stato, over time legal opinion began to shift. The Italian Court of Cassation in 2009 retroactively extended the equality principle to cover cases of citizenship transmission where the claimants were born to an Italian mother prior to 1948.
This does not mean, however, that all citizenship applications are now handled in the same fashion. As Italy has a civil law system, the 1948 Rule is not considered case law and does not carry the weight of judicial precedent it would under a common law system. Instead, what it means is that Italian citizenship maternal line cases (for children born prior to 1948) must go directly to the Courts in Italy, where they are processed.
Italian consulates and municipalities, where cases of children born after are handled, are still duty-bound to reject claimants born to Italian mothers before. Herein lies the essence of the 1948 rule: these claimants no longer are required to submit applications to consulates and municipalities, as they are sure to be rejected, and now take their cases directly to the Courts in Italy.
In conclusion, the so-called 1948 rule is comprised of three different decisions by the highest Courts in Italy:
- The Italian Constitutional Court
- The Consiglio di Stato
- The Italian Supreme Court of Cassation
The essence of the 1948 rule
The decision enables children born prior to 1948 who claim Italian citizenship through their mother to expedite the process of claiming their Italian dual citizenship before the Courts in Italy. As a result of the ruling, claimants no longer are required to submit applications to consulates and municipalities, as they are sure to be rejected, and now take their cases directly to the Courts in Italy. As this pertains to the maternal line, claiming Italian citizenship through a grandmother, great-grandmother, etc. would also apply.
Thousands of citizenship applications of children born to an Italian mother prior to 1948 have been rejected by Consulates in last decades. Still today many Consulates’ websites explain that is not possible for children born to an Italian mother prior to 1948 to obtain Italian citizenship, without adding that they can do so only if they move to Court!
The 1948 Rule and loss of citizenship through marriage
The 1948 Rule also extends the equality principle is in the area of marriage to a foreign citizen. In 1975 the Italian Constitutional Court ruled that Italian women should not automatically lose their citizenship when marrying a non-Italian citizen (as had been the law previously). However, like the 1983 ruling about transmission of citizenship through the maternal line, this ruling did not apply to cases (marriage in this instance) occurring before 1948. The 2009 precedent from the Court of Cassation (the 1948 Rule) changed that, reinstating citizenship to Italian women who had married a foreign citizen prior to 1948. If you are claiming dual citizenship through such a female relative, the 1948 Rule allows you to have your case heard before the Courts in Italy.
If your case is one where the 1948 rule on Italian citizenship applies, call MY LAWYER IN ITALY® and a citizenship attorney will give you free advice on how to pursue your Italian citizenship through the Courts in Italy.
As a seasoned expert in Italian citizenship law, I can confidently delve into the intricacies of the 1948 Rule and its profound implications. My expertise is grounded in a comprehensive understanding of the historical and legal contexts that have shaped the evolution of Italian citizenship regulations.
The 1948 Rule, often referred to as the female line rule, represents a pivotal moment in the history of Italian citizenship law. It specifically addresses the issue of gender-based discrimination in the transmission of citizenship, particularly concerning children born to Italian mothers prior to 1948. Prior to the rule's implementation, individuals claiming Italian citizenship through jure sanguinis were limited to the male line of ancestry due to the 1912 law (no. 555).
The turning point came in 1983 when the Italian Constitutional Court declared the 1912 provision unconstitutional, asserting that children could acquire Italian citizenship from either an Italian father or mother. Subsequently, a new law (no. 123/1983) was enacted, ensuring equal citizenship rights for women and establishing that a child could derive Italian citizenship from either parent.
However, the law was not retroactive, leading to a legal dilemma for individuals born to Italian mothers before 1983. This dilemma prompted the emergence of the 1948 Rule, which allows such individuals to claim Italian dual citizenship before the Courts in Italy.
The application of the 1948 Rule involves multiple layers of authority. The Consiglio di Stato, Italy's highest legal-administrative consultative body, affirmed that the equality principle applies only to children born after January 1, 1948, the date the Italian Constitution was adopted. This decision has implications for how Italian consulates and municipalities handle citizenship applications, accepting only those from children born to Italian mothers after January 1, 1948.
While the Consiglio di Stato initially limited the application of the equality principle, the Italian Court of Cassation, in 2009, took a different stance by retroactively extending the principle to cover cases where claimants were born to Italian mothers before 1948. It's crucial to note that, given Italy's civil law system, the 1948 Rule does not function as case law with the weight of judicial precedent but rather necessitates direct recourse to the Courts in Italy for processing.
The essence of the 1948 Rule lies in its empowerment of claimants born prior to 1948 to expedite the process of claiming Italian dual citizenship. These claimants no longer need to submit applications to consulates and municipalities, recognizing the futility of such submissions. Instead, they can take their cases directly to the Courts in Italy.
The 1948 Rule extends beyond issues of citizenship transmission to also address the loss of citizenship through marriage. The Italian Constitutional Court's 1975 ruling, later reinforced by the Court of Cassation in 2009, ensures that Italian women who married non-Italian citizens before 1948 can reclaim their citizenship.
In conclusion, the 1948 Rule is anchored in decisions from three esteemed authorities: the Italian Constitutional Court, the Consiglio di Stato, and the Italian Supreme Court of Cassation. Its far-reaching impact allows individuals born to Italian mothers before 1948 to pursue Italian dual citizenship through the Courts in Italy, revolutionizing the approach to citizenship claims in the maternal line. If you find yourself in a situation where the 1948 Rule on Italian citizenship applies, seeking guidance from legal professionals like MY LAWYER IN ITALY® is crucial for navigating the intricacies of the legal process.
