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Italian naturalisation – Displaced parents, Italian children?

19 aprile 2005

Question - I am a Cuban citizen and I have been living in Italy for many years. I hold stable residence papers and so does my husband. Last year our second child was born and our problems started since then. Italian law on citizenship and naturalisation, art. 1 paragraph 1 letter b, states that Italian citizenship is acquired by benefit of law, therefore in case parents are displaced or unknown citizens children that are born in the Italian Republic are actually Italian. This happens if children do not acquire their parents’ nationality and it is what occurred when my first child was born five years ago. The Council asked to Home Office to express its point of view and after three months a positive answer arrived.
We have so far been waiting for seven months and ministry has not answered yet. The person in charge of this kind of proceedings at Home Office says that the Council has to take care of such an instance whereas the Council says that law provides for that Home Office has to do it.
In the meanwhile our child is a displaced citizen and we cannot possibly leave Italian borders. In addition to this our child’s health care card is about to expire and we have to renew it every four months.
We also spent so much time in phone calls: phone calls to the Council and to Home Office, which is always off-line.
I would like to know who is in charge of such a matter, in other words: who is right? Whom should I refer to in order to solve this problem?
Thanks a lot and best regards.

Answer - Law 91/92 art. 1 paragraph 1 letter b establishes a very simple principle: citizens that were born in Italy cannot be displaced citizens, they can either be foreign citizens (citizenship law provides for that children that were born abroad are Italian if one of their parents are Italian) or Italian. This principle is extremely clear and – as this lady explains – it is what happened to their first child five years ago.

Some preliminary considerations
The hypothesis shown by this question concerns the chance of being Italian since birth. We are talking about a perfect subjective right, it is not a pure concession that can be discretionally evaluated. We are referring to an automatism provided for by law, a subjective right.
In this quoted case, parents can firmly pretend that the qualified officer at the Council (Ufficiale di Stato civile del Comune) gives an answer to the request of Italian citizenship’s assessment and, in case of negative answer or of silence they can directly appeal to local Civil Court after thirty days. Civil Court will study the situation and decide over the assessment of Italian citizenship. There should not be problems (the same ministry confirm that law in Cuba does not provide for that children of Cuban citizens are Cuban) in fact this child has the right to be considered Italian since birth.

Home Office confirmed this by phone and therefore it does not mean that we are talking unoffical data. On the other hand Ufficiale di Stato civile may not know Cuban law.
As an alternative, these two interested citizens may refer to the Cuban embassy in Italy in order to ask to state that Cuban law excludes that children of Cuban parents born abroad are Cuban.
According to DPR 445/2000 art. 33, the certificate – written in Italian language - released by the Cuban embassy can be legalised at Prefecture and then given to council’s officers.
In case those citizens need to appeal to Court to have citizenship assessed, it would be parents’ duty to prove what stated above about Cuban law.

Health care card
We believe that the situation we are today studying will be solved, but we anyway want to focus on a matter that the question raises: the child’s health care must be renewed every four years.
The new rules for the enforcement of Bossi-Fini law – DPR 334 issued October 18th 2004 – holds some novelties about the enrolment of migrant citizens into Servizio Sanitario Nazionale (national health care services). Novelties concern regular migrants.
Art. 32 states: enrolment is not cancelled during residence papers renewal.
This statement leads to the fact that Asl won’t be allowed to issue three to six months health care cards during residence papers renewals. Asl won’t anymore be allowed to deny the extension of SSN enrolment – as we are often referred to – in case renewal times take long.
Some Asl say: “we issue six months long health care cards during papers renewal because residence papers may not be renewed.”. This is arbitrary, especially after the enactment of the new rules for the enforcement of Bossi-Fini law that established that SSN enrolment cannot be cancelled during papers’ renewal. Rules are clear therefore enrolment must be automatically kept valid. Only if papers are rejected, Asl is authorised to cancel enrolment.

Puglia: an example
Puglia region was the first to act by spreading out a memorandum that underlines the novelties of the rules for the enforcement of Bossi-Fini law concerning SSN enrolment (and we do not believe that this happened as a consequence of the recent elections but as a consequence of good common sense).
The memorandum also underlines that enrolment must be extended up to the day residence papers renewal procedure is over (eventual impugnment at Court is considered “procedure”). “Asl are invited”, the memorandum says, “to spread around this disposition”.
We must admit that this memorandum is well done and consistent to the law.
Unfortunately Puglia is the only Italian law that immediately comformed its directives to the new rules for the enforcement of the law. We are writing this not only to the family that e-mailed us the question but also to our web-page users, to associations, operators, etc.: they should all signal the need of conforming rules to the law and they should denounce eventual arbitrary behaviour that we are aware they are very much in use through out Italy. This would be very useful to overcome the arbitrary application of law especially when talking about fundamental rights such as health care. Don’t forget we are talking about regualr migrant citizens! This arbitrary application of the law is like preventively treating citizens as clandestines, it would be a sort of preventive war on behalf of the idea that all migrants should be treated as clandestines... And this goes against law...