Ius soli and Italian citizenship: legal aspects and public debate

One of the most discussed issues in recent years is that of ius soli, a principle according to which anyone born in the territory of a nation may have the right to citizenship, even if born of parents who are not citizens of that state.

The topic divides Italian public opinion, due to the migration crisis that involves not only Italy, but also the whole of Europe: many questions arise on what consequences could potentially bear the approval of a law that promotes ius soli in Italy.

However, the general public does not know that ius soli is contemplated in the Italian legal system, despite being applied only in a residual way and in particular cases.

What’s the “ius soli”?

The ius soli (from the Latin “right of the soil”, known in English as “birthright citizenship”) is a legal expression that establishes the right to acquire citizenship of a specific country for the simple fact of being born there, regardless of the parents’ citizenship.

This principle is applied in countries such as the United States, where anyone born on American soil is automatically entitled to US citizenship, but is applied also in Canada, Mexico and almost all of South America (Brazil, Argentina, Venezuela, Peru, Bolivia, etc.).

There is also a restricted ius soli, valid only under certain conditions (which may vary in different countries) expressly indicated by the law, and are usually linked to a period of stay of parents within the country as regular immigrants: examples of States that apply the restricted ius soli are Australia, Greece, the United Kingdom, Spain, Malta, Israel, New Zealand, Portugal, and others.

The “ius sanguinis”

Ius sanguinis (from the Latin “right of blood”) is the juridical principle opposed to ius soli. It establishes that citizenship of a given State can be acquired only if the parents (or other direct ancestors) are already citizens of that nation.

Usually the effects of ius sanguinis are extended to adopted children as well (as it happens in Italy), but every country has its own laws and provisions on the matter.

Many countries in the world such as Russia, China, Japan, Poland, Sweden, Ukraine, Morocco and many European Union states apply ius sanguinis.

However it is important to note that the presence and application of either the two legal principles does not automatically exclude the other, and there are countries that apply both ius sanguinis and ius soli, such as Canada, Brazil, and the United States.

The “ius culturae”

Ius culturae (from the Latin “right of the culture”) provides the possibility of obtaining the citizenship for foreigners who were born and reside in a country and complete a course of studies (elementary, middle, or high school) or courses equivalent to schools for a certain number of years.

According to this principle, whoever attends the schools of the country where he was born and grew up, learns and acquires the language, culture and traditions, integrating completely into that country’s society: in order to become citizens of a nation it would therefore be necessary to feel being a part of it.

The ius soli in Italy

Italy applies the ius sanguinis principle, so theoretically to obtain citizenship it would be necessary that at least one of the applicant’s parents (or a direct ancestor) is/was an Italian citizen; in reality citizenship can be obtained in other ways.

The ius soli already exists in the Italian legal system, but in a residual manner (it means that it is applied in special and limited cases).

Law 91/1992, which regulates Italian citizenship applications, establishes that ius soli can only be applied in the following cases:

  • for children born in Italy from unknown or stateless parents (provided for by article 1, paragraph 1, letter b);
  • for children born in Italy but cannot acquire the citizenship the parents’ citizenship, as the law of the country of origin of the parents does not allow to acquire citizenship for the child born abroad (art.1, paragraph 1, letter b);
  • for children born and abandoned in Italy by unknown parents, and whose citizenship of origin cannot be demonstrated (art.1, paragraph 2).

Consequently, those who were born in Italy under different circumstances will not be entitled to Italian citizenship due to the ius soli.

However, there are other ways, other than ius soli and ius sangiunis, which allow the attainment of Italian citizenship.

Law 91/1992 on the attainment of Italian citizenship

According to law 91/1992 a foreigner can still request and obtain Italian citizenship if certain requirements are met:

  • for having been public employees of the Italian State for at least 5 years, even if the service was performed abroad (referred to in article 9, letter c);
  • for children born of foreign parents, who reside continuously in Italy up to the age of 18: the application must be made before they turn 19 years old;
  • after 10 years of legal residence in Italy, provided that the applicant has no criminal record and adequate financial resources; this term is reduced to 3 years for former Italian citizens and their descendants; to 4 years for citizens of other EU countries and to 5 years for political refugees and stateless persons (article 9, letters a, d, e, f);
  • by marrying or forming a civil union with an Italian citizen and after 2 years of legal residence; or 3 years of marriage (or civil union) if the couple resides abroad.
    The terms are halved in the couple has any natural or adopted children (provided for by paragraph 20 of law 76/2016);
  • by Decree of the President of the Italian Republic, (upon hearing the Council of State and after deliberation by the Council of Ministers, via proposal of the Minister of the Interior), to the foreigner who has rendered outstanding services to Italy or when an exceptional interest of the State occurs (article 9 paragraph 2).

Nevertheless, article 9.1 of law 91/1992 establishes that in order to attain Italian citizenship the applicant must undergo an exam that certifies an adequate knowledge of the Italian language, not lower than B1 level of the Common European Framework of Reference for Languages, (CEFR, which defines the B1 level as “intermediate mastery”, that is being able to communicate with relative ease in everyday life, also through abstract concepts).

To obtain the CEFR attestation of knowledge of the Italian language it is necessary to have a qualification issued by a public or private institute in Italy, or obtain a certificate issued by one of the four officially recognized certification bodies (Siena University for Foreigners, Perugia University for Foreigners, Roma Tre University or the Dante Alighieri Society).

Furthermore, following the suspension of compulsory military service in 2005, serving in the Armed Forces no longer allows the obtaining of citizenship.

The debate on ius soli in Italian public opinion

Due to the rise of the migration crisis, the debate on citizenship and ius soli has become increasingly heated in Italy, with parts of the public opinion advocating the ius soli, other parts fiercely arguing against it, and intermediate positions in support of the restricted ius soli or the ius culturae.

Here are some of the most common arguments in favor of these issues.

Arguments in support of the unrestricted and resticred ius soli

The supporters of unresticred ius soli argue that this principle would give children born in Italy from foreign parents the opportunity to better integrate into society, being able to fully enjoy civil rights, giving them the opportunity to lead a better life in Italy than their parents.

Furthermore, those who support unrestricted ius soli state that the adoption of this legal principle can be a solution against the deceleration of the country’s demographic growth, favoring an increase in the population.

On the other hand supporters of therestricted ius soli argue that citizenship must be given only to those who are really interested in obtaining it, and to fulfil certain requirements: legal residence in the country for 5 years, a stable and decent income, housing and no criminal record.

There are many foreigners who come to Italy to work for a few years, only to return to their countries of origin and be able to live in more stable conditions thanks to their earnings; others instead (especially migrants from Africa) consider Italy as a mere place of transit to reach other EU nations.

The children of these people would not benefit from obtaining Italian citizenship under the influence of the unrestricted ius soli, since parents would have little interest in staying in Italy for extended periods of time.

Consequently advocates of restricted ius soli argue that more stringent requirements are necessary to obtain the citizenship.

Arguments in support of the ius culturae

Those who support the ius culturae state that in order to be considered Italian citizens it is necessary to know the Italian language, traditions, culture, history, institutions and laws: to obtain this knowledge it is not enough to be born and grow in Italy, but it is necessary attend schools, which have been specially created to educate and forge future citizens. In other words, applicants must integrate into society and “feel themselves Italian”.

It is necessary to conclude at least one course of studies in order to fully understand the socio-cultural and legal mechanisms of the State; only in this case citizenship can be requested.

Arguments in favor of current laws (against ius soli)

Those who firmly oppose all types of ius soli state that citizenship is not a gift that can be given to anyone, but it is an award rewarded to worthy foreigners, that have stayed for a long time in Italy and know its language, institutions and laws thoroughly.

Nonetheless, ius sanguinis must be favored and maintained.

Furthermore, critics of the ius soli affirm that, given the current migration crisis and globalization, the approval of the ius soli would lead to a “foreigners’ invasion”, which would culminate in the islamization of Italy and Europe, if not in an ethnic substitution that would damage the Italian people.

From all these arguments we understand how much the debate on the ius soli issue is heated in the Italian public opinion.

In response to these concerns, in 2015 there has been a law bill proposal, which tried to find a meeting point between all the aforementioned arguments: had it been approved, it would have led to the application of the ius soli and ius culturae principles in Italy.

The law proposal on ius soli and ius culturae of 2015

In 2015, the Chamber of Deputies (the lower State House in Italy) approved a provision for the introduction of the restricted ius soli and the ius culturae; this provision however hasn’t been approved by the Senate, therefore it never became law, nor came into force.

What could the consequences be if these legal principles were to be adopted?

The introduction of the unrestricted ius soli (not foreseen in the 2015 bill) would extend to all the children born in Italy the possibility to apply for citizenship, regardless of the nationality of the parents; consequently, in order to obtain citizenship, it would no longer be necessary to satisfy the stringent conditions established by the law 91/1992 (being born from unknown or stateless parents, or whose nation does not grant citizenship for children born abroad).

The introduction of a restricted ius soli, as proposed in 2015, would entail the respect of certain conditions by the parents of foreigners born in Italy, that is legally residing for 5 years in Italy.

If the parents are not EU citizens, other requirements apply:

  • have an annual income not less than the annual amount of the social allowance;
  • have adequate accommodation;
  • pass a test that evaluates the knowledge of the Italian language.

The awarding of citizenship is not a process that takes place automatically, but it must be explicitly requested by the parents.

In any case, citizenship would be assigned only to the child, and would not be extended to the parents, who will have to obtain it in other ways, if interested.

Foreigners born in Italy and who have lived continuously there for 18 years have the right to apply for citizenship by the day they turn 19 years old.

Under the effects of the ius culturae foreigners born in Italy or arrived within the twelfth year of age can apply for citizenship if they have attended Italian schools for at least 5 years and completed a course of studies; if the foreigners arrive in Italy between the ages of 12 and 18, then to obtain citizenship they must have resided in the country for 6 years and completed a course of studies.

By attending schools, therefore, one would have knowledge of the language, history, culture, society, laws and institutions, it is expected from citizens to have such a knowledge.

The “Salvini decree” on citizenship

Law decree 718/2018 (the so-called “Salvini decree”, from the name of the Italian Minister of the Interior, Matteo Salvini) made the procedure for applying for citizenship more complicated, introducing an examination called the “naturalization exam”, which contains tests on Italian language, general culture and history, and on Italian institutions and laws, in order to check if the applicant has integrated into Italian society: failure to participate or failure of the exam will result in the denial of the citizenship application.

Exams similar to the “naturalization exam” are currently being employed in countries such as The United States and the United Kingdom.

It could therefore be affirmed that, as a consequence of the “Salvini decree”, a certain degree of ius culturae is in force in the Italian legal system, as without knowledge of Italian culture citizenship cannot be obtained: there are reports of immigrants who have been denied citizenship because of their lack of adequate linguistic skills.

However, these rules do not apply to foreigners who can apply for citizenship due to the ius sanguinis (foreigners who are direct descendants of other Italian citizens); in fact they do not have to take the “naturalization exam”.

Ius soli in other countries

In summary, the ius soli in Italy is applied only in a residual way, while the bill introducing the restricted ius soli and ius culturae has not been approved by the Parliament, and it is not going to come into force, for now.

Many other countries apply the ius soli principle, as an example, in the American continent.

Whoever was born in the United States is automatically an American citizen, unless their parents are diplomats.

The same principle is enforced in Canada, Brazil, Argentina, and other countries.

As for the European countries, anyone who was born from a parent with a permanent residence permit in the United Kingdom is a British citizen.

If one of the parents has legally lived for 3 years in Ireland, the children will have Irish citizenship.

In France, children of foreigners residing in the country (or that resided in the country for 5 years) will automatically obtain citizenship when they turn 18.

In Germany restricted ius soli is applied: children of foreigners who have resided in the country with a residence permit for 8 years (or for 3 years with a permanent residence permit) are entitled to obtain the German citizenship. In Portugal the ius soli is automatically enforced for the third generation of immigrants.

In Greece children of foreigners that have resided in the country for 5 years can obtain citizenship.

Before 2001, Malta applied the unrestricted ius soli; children born after 2001 must have at least one Maltese parent in order to obtain citizenship.

It can therefore be said that Italy applies more restrictive procedures in assigning citizenship than other countries.

Possible future scenarios for ius soli in Italy

Since the current government is composed of conservative parties or against the ius soli, it is unlikely that the 2015 bill will come to light during the current parliamentary term.

It must be considered that the opposition to the ius soli is also due to the migration crisis.

Should this crisis cease in the future, then the main arguments against the ius soli would cease to exist, and consequently the adoption of this legal principle would be more probable.

On the contrary, should the crisis continue, or even worsen, the adoption of the ius soli principle in Italy would be unlikely.

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