Italian Citizenship by Lawsuit: Taking Consulates to Court Over Lack of Appointments – And Winning
Last week in IMI, we read a very informative story about the extent of the Italian diaspora (more than 80 million globally) and how many of these are potentially eligible for Italian citizenship by descent. The article explained, in broad terms, how to proceed with collecting the necessary documentation and filing it with your Italian consulate.
But, as with so many other aspects of our lives, the pandemic has (temporarily) suspended “normal” procedures for acquiring Italian citizenship by ancestry. This means that to successfully qualify for Italian citizenship on the basis of family heritage, applicants can’t merely proceed as they would have two years ago.
Prior to the pandemic, the process of claiming Italian citizenship by descent was rather straightforward:
Once you had all the pertinent documents at hand, you would visit your local Italian consulate’s website and book an appointment. On the day of the appointment, you had to pay the consular fees and submit all your documents and the application form. Subsequently, all you had to do was wait for a decision from the consulate. This was the way things worked in most Italian consulates up until 2020.
When the first real wave of infections struck, in March 2020, all Italian consulates closed in compliance with Italy’s domestic restrictions and regulations. This brought two chief consequences:
First, you could no longer file your application for Italian citizenship by descent with the consulates because there was no way of making an appointment. Everything was closed – and still is.
Second, because of the cessation of consular activity for so many months, a massive backlog of citizenship by descent applications accumulated. That backlog remains massive.
Two years in, not much has changed about the situation.
The below screenshot shows a statement published on the website of the Italian consulate in New York saying all appointments for claiming Italian citizenship by descent are suspended until further notice. That statement was posted in early 2020 and is still there.
Another example is the Prenot@mi website, the portal for booking appointments at Italian consulates across the US. As the screenshot below demonstrates, no appointments are available, and there is not indication as to when they might become available either.
So, if filing applications for Italian citizenship by descent through consulates will not be feasible for the foreseeable future, what are individuals with a legitimate claim to ancestry-based Italian citizenship to do?
Thankfully, there are solutions.
Italy’s citizenship law no. 91/1992 explains that you have to file your application through the Italian consulate if you are a resident abroad. But two essential laws regulate how the Italian consulates must process the citizenship by descent cases it receives, and the obligations they have vis-à-vis applicants.
Law no. 241/1990 regulates the maximum processing time for all administrative processes by the Italian administrations (such as consulates). The law says the administrations have to guarantee a short processing time. This same law is also integrated with a more specific regulation; Presidential Decree 33/2014m which specifically defines a maximum processing time for citizenship by descent applications at Italian consulates; 730 days, i.e., two years.
With these laws and regulations in hand, many claimants began filing lawsuits in the Italian Court of Rome against the consulates for their failure to allow appointments and to provide timely processing.
And, as it happens, these claimants won their lawsuits.
The Italian Court of Rome stated that not allowing appointments violates the right to claim Italian Citizenship by descent. And if you cannot book the appointment, of course, you cannot claim your Citizenship, which is yours by legal right.
In these cases, therefore, the judge can recognize and approve your Italian Citizenship by descent as long as you demonstrate your inability to book a consular appointment despite making all reasonable efforts to do so.
To wit – Judgement number one:
And judgement number two:
“These solutions are now something new for us” – concludes Bersani – “as these issues were already in force for many years in other Consulates, like in Brazil or Argentina.
This is an effective workaround, and it’s not a new solution either; even for years before the pandemic, an inability to get appointments was a big problem in countries like Argentina and Brazil, both of which have tens of millions of potential claimants. In these countries, the wait time for an appointment can reach ten years. The above judicial precedents stem from Brazilian claimants, who filed lawsuits several years ago.
And now, after Covid-19, also American, Australian, and Canadian citizens can use the same judicial precedents in their favor.
Marco Bersani is an Italian attorney and Global Chairman of Bersani Law, based in Verona.