Italian descendants residing abroad who have applied for citizenship at their consulate and have been waiting for a reply for years can apply for citizenship by lodging an appeal with the Court of Rome.
According to the law, in the case of descendancy through the paternal line, there are no technical and legal problems for the administrative recognition of citizenship, since – if the documentation is valid – all applications are accepted, without the need to resort to judicial checks. Interested parties should thus apply to the Consulate or Municipality of residence and wait for the administrative procedure to be completed.
Therefore, in the past, the Court of Rome rejected applications for the judicial verification of the citizenship of children born to Italian emigrant fathers, precisely because there was no contrast and because it was necessary through the administrative route (in this sense, Civil Court of Rome, sentence no. 18710/2016 of 10.10.2016 stated that: “A legal application for the ascertainment of Italian citizenship made by a person who is a direct descendant of a male Italian citizen and who has not previously applied to the Italian administrative authority for recognition of Italian nationality must be declared inadmissible because of lack of the necessary interest in bringing proceedings”).
Currently, however, this – theoretically correct – legal reconstruction clashes with the actual situation in the Consulates and with the incredible waiting times for the processing of citizenship applications filed in certain Consulates, where (in Brazil, in particular) the minimum estimated waiting time is 10 years or more, given the constant rise in the trend. It is clear that this effective situation makes the administrative route infeasible, and that it is practically impossible for applicants to exercise their right in the place established for the purpose (i.e. the Consulate).
This is why the Court of Rome has begun to recognise that the judicial route is the only one effectively viable for a citizen who legitimately wishes to see his right of citizenship recognised within a reasonable timeframe, because “such an unreasonable wait with respect to the interest held is equivalent to a refusal to recognise the right, and for this reason alone justifies the interest in resorting to judicial protection” (sentence of 16 February 2016). The principle is quite simple: if it takes an unreasonable amount of time to obtain a right, that right is effectively denied, and when a right is denied, it is always possible to proceed before the courts.
Pursuant to Article 2 of Law No 241 of 7/8/1990, proceedings falling within the competence of the State administrations must be concluded within specified and certain time limits, also in accordance with the principle of the reasonable duration of proceedings. The obligation to conclude the proceedings within the terms established does not derive exclusively from laws, regulations or administrative deeds, but also from the general principles governing administrative law, including those of efficiency and good performance of the Public Administration (Article 97 of the Constitution).
Remember that the deadline for the definition of the proceedings is 730 days (Prime Ministerial Decree no. 33 of 17 January 2014).
A period of time longer than the legal limit must therefore have passed since the applicant applied to the competent Consulate. For consulates that do not immediately give an appointment and therefore leave the paperwork in abeyance for years before convening citizens to examine the documentation, it will be sufficient to submit the application and request an appointment.
The Gabaldo Cosaro Law Firm provides assistance for the drafting of the appeal, the filing and management of the proceedings before the Court of Rome and the subsequent administrative phase involving the transcription of the documents in the registry offices records.
