The concept of citizenship – The case of Italy

Introduction

Due to the centrality of the theme in the Italian political scene, it is interesting to face some shades and critics of legal status of citizen in my country. First, the paper will give a broad overview of the functions of constitutions, then will follow some considerations above the general concept of citizenship, and only at the end it will treat specifically the particular case of Italy.

The concept of constitution

The Constitution could be seen as the instrument of definition of national and cultural boundaries. This vision is strictly connected with the concept of citizenship and the related rights and duties.

Constitutions are a fundamental social declaration because both reflect and shape society, by expressing the existing or intended common identity and aspirations of the people, or by proclaiming shared values and ideals. These provisions are generally found in preambles and opening declarations correlated to the constitution. Other substantive provisions, particularly those defining socioeconomic rights, cultural or linguistic policy, or education, might also belong to this category.

The functions of the constitution could be divided in five main categories. Firstly, constitutions declare and define the boundaries of the political community. These boundaries can be interpreted as territorial (the geographical borders of a state, as well as its claims to any other territory or extraterritorial rights) or personal (the definition of citizenship). Secondly, constitutions express the identity and values of a national community. As nation-building instruments, constitutions may define the national flag and other symbols, and may make proclamations about the values, history and identity of the nation. Thirdly, constitutions can declare and define the rights and duties of citizens, including a declaration of fundamental rights applicable to citizens. Then, constitutions establish and regulate the political institutions of the community for the government. They prescribe their composition, powers and functions and regulate relations between them. Almost all establish the traditional division of powers of government. Finally, constitutions can establish federal, quasi-federal or decentralized processes for the sharing of power between provinces, regions or other substate communities. These may be defined geographically or by cultural or linguistic communities.

Next, there is general overview about the concept of citizenship, trying to analyse, although in a superficial way, some aspects of its meaning. After this definition of “citizenship”, the intent is to answer to the interesting question if nationality means citizenship, specifying the difference between them.

Definition of citizenship

The concept of citizenship could be understood under semantic meanings in sociology, philosophy, history and law. In law there are two components that allows the analysis: the vertical and horizontal aspect. Citizenship is constituted by a given political structure, but also by the feeling of being part of a community, so the participation in the civil life. Citizenship is both the membership of an individual to a state political community and the all rights and duties deriving from that belonging. What it means to be a member of a society in many areas of the world came to be understood in terms of what it means to be a right-bearing citizen of a territorial nation-state. Therefore, it is a relationship between the individual and political-juridical set of rules. According to the International Court of Justice, citizenship is a “legal bond having as its basis social facto of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties”. It seems easy to distinguish clearly the composing elements of citizenship, it means the stable subordination to a state authority, the membership and participation to a political community, the enjoying of rights and prerogatives reserved to citizens. The national citizenship aims to constitute a common good and to shape a common life of the community. In this case the discrimination between the citizen and the foreigner is based on opposition and antinomy. However, in contemporary society with the crisis of State sovereignty, globalization and affirmation of the safeguard of human rights, the content of citizenship is not clearly identifiable and recognized as status and condition of the individual by attributing him specific rights and duties. In fact, citizenship considers a surplus of value, traduced in freedom, equality and membership.

Does nationality mean citizenship?

After a general introduction to what the concept of “citizenship” means, it is necessary to contextualise it in different legal systems in a broader view of the field of global constitutional law. Before, it will be stressed out the importance of the origins of people also in structuring alternative criteria for grouping legal systems. Each national State presents its own legal system thanks also to non-legal factors, as the past history lived.

Some classifications of law and distinctions in legal systems deal with the formation of national States and to the dismemberment of empires, as well as significant movements of migrants (e.g. to colonies between the 16th and the 19th century) or to the rise and fall of political ideologies which have forged a multitude of States (e.g. fascism and communism). These are examples of how the law could be shaped and change from a territory to the other.

The awareness of the importance in contextualizing law systems according to their geohistorical past brings to the analysis of the right to nationality, that is strictly connected with the origins of the individual. According to the Article 15 of the Universal Declaration of Human Rights, nationality is properly a fundamental human right and “it implies the right of each individual to acquire, change and retain a nationality”. Nationality represents the legal status of the country to which an individual belongs. The nationality denotes the country where an individual is born and to which he is the legal citizen. This legal status is acquired by birth, inheritance or naturalization. There are a variety of ways through which an individual can become the citizen of a country, i.e. by birth, inheritance, marriage, naturalization or registration, that will be analysed later in the paper.

Based on international conventions and constitutional provisions, it is the country that sets the criteria according to which it establish who are the nationals of the State. The nationality is referred to particular person’s ethnicity or country of birth, whereas citizenship is a legal term and a political status that individuals acquire applying and as a result of legal procedures, the individual is registered as a citizen by the government. Therefore, one is acquired by birth and the other by law; one is an ethnic or racial concept and the is a legal or juristic.

Nationality cannot be changed or reversed, while citizenship can. It means that once acquired, the nationality of a person cannot be taken back, instead the citizenship of a person can be taken back. Another difference is that a person can owe only one nationality, while he can hold citizenship of various countries at a time.

International law’s influence into the rule establishes that each State is absolutely autonomous in deciding how citizenship acquisition by jus sanguinis and jus soli can be. Some trends are the result of the still considerable leeway available to States in nationality matters.
Different types of citizenship

With the jure sanguinis acquisition, the nationality of a certain country is acquired by a child for having a parent who is a national of that country. The parent himself has to be acquired this status either under the law of the State involved or under foreign law, but he has to be recognised as the parent in the State involved. The legal status of parent is not necessarily based on the genetic truth if this evidence was not yet a condition for the establishment of the parentage for the acquisition of nationality. The same treatment is applied with a parentage established abroad between a child born to a surrogate mother. In fact, the child must have access to the nationality of the intending parent under the same conditions as a child born to this parent. It is necessary to underline that for the acquisition of nationality it matters the legal tie of parentage (filiatio), not the ‘blood’ (sanguis) of a child. For that reason, some consider better to use the term jus filiationis instead of the traditional jus sanguinis.

The term ius soli affirms that the person born in the territory of a certain state obtains automatically the citizenship. A perfect example is verified in the United States, but in none of the European states. Then, there is the form of limited ius soli, that is applied in Italy.

Jus culturae permits the acquisition of the citizen’s status to the foreigner minor aged under some conditions: he may have been born in the given country or have entered before turning twelve and in case of regular frequentation of a performative course for at least five years in the national territory. In this vision, the citizenship is acquired by the major age through the declaration of willingness expressed by a parent residing legally in the given country to the Official of the civil state of the municipality of minor’s residence. The citizenship could be acquired also by naturalization.
If we take into consideration, for example, the Italian case, its draft law  introduces a new way that benefits the foreigner who entered in the national territory before turning the major age, but after turning the twelve age, and those with legal residence in Italy from at least six years. In this case, the foreigner can ask the concession of citizenship at conditions of regularly frequented a scholastic cycle with the fulfilment of a final title in the scholastic institutes of the instruction’s national system.

The Italian case

The Italian citizenship is the condition of the physic, Italian citizen to whom civil and political rights are fully recognized by juridical order. In Italy, the modern concept of citizenship was born during the constitution of the united country. Actually, it is disciplined by the February 5th 1992 law, n.91.

The Italian citizenship is based principally on jus sanguinis and only residually on jus soli. Jus sanguinis is applied for birth, recognition or adoption, by even one of the parents, who are  Italian citizen; instead jus soli permits to achieve citizenship to the ones born in Italy by stateless parents coming from a juridical order that does not contemplate jus sanguinis.

The citizenship for naturalization could be received after ten years of legal residence in Italy, at the condition of a lack of prior penalties and the presence of adequate economic resources. The period is shorter for ex Italian citizens and for their direct descendants, for foreigners born in Italy, for European Union’s citizens, refugees and stateless people. Citizenship could be given through marriage with an Italian citizen, after two years of legal residence in Italy or after three years of marriage if they reside abroad, at the condition of a lack of prior penalties. This last condition could be reduced at the half of time if the spouses have children, natural or adopted.

Before April 27th 1983, when law no. 123 of April 21st 1983 got in force, foreign women who married Italian citizens automatically acquired Italian citizenship. Furthermore, the Italian legal system permits to a foreign born in another country to become an Italian citizen at the condition of having resided legally there and without interruptions till the fulfilment of the major age. He has to declare his willingness in acquiring the citizenship by turning of the major age and before the year after to the Minister of Internal. Then, it could be given also for having accomplish the call-up military service or civil service. According to the naturalization, the citizenship is given to the foreigner who resides legally for almost ten years in the territory of the Republic. It is evident that the Italian model is marked as a favour.

Michael Walzer created a tripartite classification of the citizenship’s model: “neighbourhoods, clubs and families”. According to this division, Italy is reconducted to the model of families. In fact, the basic criteria for the acquisition of Italian citizenship are linked to the creation a family unites: on one hand the marriage (jus conubii), on the other hand the descendance (jus sanguinis). On the contrary, the naturalization of the foreigners (jus domicili) and the acquisition of the nationality by birth (jus soli) resulted residual forms of accessing to citizenship.

For the foreigner adults who get access to the country, the naturalization is strictly linked to the residence’s duration and represents the principal way for citizenship acquisition. In the general structure, the discipline inside the article 9 of 1992/91 dictates strict criteria for the jure domicilii citizenship’s concession. In fact, the in force normative prescribes, at the aim of naturalization, different periods of residence, depending on the major “desirability” and on the presumed cultural affinity of the different types of foreigners. This differentiation appears to be based on the ethnic origin of the foreigner, and could bring to a discriminatory practise if not prohibited by certain international measures adopted in the European setting. The shortest period of residence is of three years and it is prescribed for the foreigner with an Italian ascendant within the second grade of parenthood. To citizens of a European Union’s member state are required four years of residence and to stateless and political refugees five years. For all the other foreigners the usual period is ten years.

This arc of period results to be one of the largest adopted at the European level by European Convention above nationality for the acquisition of jure domicilii citizenship and it represents the maximum arc of period for the naturalization. In fact, «each State Party shall provide in its internal law for the possibility of naturalisation of persons lawfully and habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period of residence exceeding ten years before the lodging of an application». The same Convention, that Italy signed and never ratified, prescribes that every country in the treaty may favour the acquisition of citizenship for who was born and resides legally and habitually on his own territory and it imposes the general duty of non-discrimination in the discipline of the citizenship where reported «The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin».

In the Italian context, regularizations of migrants that entered illegally in the country are numerous and recurring, as estimated that most of the half of now regular immigrants was in the past irregular. Sometimes the prerequisite of ten years’ residence could be difficult to prove, provoking a further enlargement of the time of the citizenship’s concession.

In case of naturalization, Italian citizenship is conceded through decree by the President of Republic by the proposal of the internal Minister, the one who takes substantially the decision. Before six months from the notification, the appellant may pledge at the residential municipality “to be faithful to the Republic and to respect the Constitution and State’s law”. The day after the oath, he begins to be a citizen.

Although to the foreigner are recognised some important social rights, above all in the field of public education and health care, in the Italian discipline seems to persist an asymmetry between rights and duties towards immigrant people. This asymmetry is remarked by the lacking recognition of the administrative vote to non-communitarian foreigners. In fact, the Maastricht Treaty of 1992 introduced the “Union’s citizenship” that attributes to every European Union’s citizen, who resides in a member State that is not his own, “the right to vote and electability at municipal election in the member State where he resides, at the same conditions of the citizens of that State”.

In Italy, the right to active and passive electorate at the local level was prescribed initially in the Turco-Napolitano draft law, but without having a definitive version. The article above “administrative electorate” cited: «To the foreigner owner of the residence’s documents, for which the requisites and conditions established by law for citizens file an appeal, it is recognised the active and passive electorate in the residence municipality, as recognised by article 1, comma 5, of the legislative decree of 12th April 1996, n.197 for European Union’s citizens».

Some further specifications

The acquisition of citizenship jure soli is strictly ruled in Italian system. Jus soli itself as the automatic attribution of citizenship at birth is applied in a very sporadic hypothetical situation, because it is essentially applied to people with stateless or unknown parents. According to the on-going normative, people that can receive the Italian citizenship via jure soli are those “who were born within the territory of the Republic if both the parents are unknown or stateless, it means if the son does not follow the citizenship of the parents according to the State’s rules to which they pertain” and “the son of unknown parents found in the territory of the Republic, if it is not prove the ownership of another citizenship”. On the contrary, for people born in our country by foreign parents, the law 1992/91 prescribes an intermediary discipline between jus soli and the ordinary naturalization. As before explicated, the law recognizes to the foreigner born within Italian territory the possibility to acquire the citizenship by the adult age demonstrating a regular and continuous permanence in the country, and expressing his willingness by the year after. There are some interpretative and probatory aspects to be clear.

Firstly, the condition of a regular residency is interpreted by the article 1, co. 2, let a), of the execution’s regulation of law 1992/91, where it is specified that “it is considered a legal resident of the State’s territory who resides satisfying the conditions and compliances prescribed by the rules above the foreigners’ entry and residence in Italy and above civil registration”. Who wants to apply for Italian citizenship jure soli may demonstrate from birth “the possession of a regular permit of residence and the civil registration at the residence’s district. With the adoption of the 2013 Decree Law, it followed an appreciable innovation with important, practical consequences for foreigner minors born in Italy. In fact, as consequences of the decree, the rigidity of the requirement of the regularity in the residence’s permission became more inclusive and the mentioned “legal residence” can be interpreted as a non-illegal residence, it means “does not authorized”, of the foreigner in Italy.

Secondly, the condition of continuative residence is formally exposed by law number 91 of 1992, where it is important to underline that “eventual, temporary absences will not be considered prejudicial for the purposes of the concession of the status civitatis, when the aspirant citizen who had to go abroad had been maintained in Italy his legal residence (civic registration at the district and valid residency permit for all the period) and the centre of his own familiar and social relationships”.

Finally, the declaration of willingness is a necessary prerequisite, because the Italian discipline does not consider automatisms for purposes for the acquisition of the citizenship of jure soli. Because of this awareness, the Officials of the Civil State have the duty to inform the interested individual of his rights and the timing.

Reform proposals

As explained before, the current situation about citizenship its ruled by law 1992/91. However, it presents some critical points, also considering, from a sociological perspective, the ever-increasing flux of migrants aiming at living in the country, theme that remains strictly connected to the acquisition of citizenship. Last years, the developing number of immigrants into the country woke up on the necessity of a reform of the law. Immigration in Italy begun to have significant dimension during the Seventies and then it became a characteristic phenomenon of Italian demography during the new millennium. According to Eurostat, in 2017 Italy was the fourth country of the European Union for immigrant people and the third country for foreign people. Also for this reason, the theme has been putted at the centre of many political discourses.

This awareness brought to discussion the mentioned law and to propose draft law, although without realization. In the 2012 draft law by popular venture, as the result of the so-called campaign “l’Italia sono anch’io”, we can find the proper terminology for an acquisition of jus culturae. In addition, it prescribed also the possibility of receiving the citizenship at the birth in Italy for the children born by both foreign parents, with the further requirement of only one year of legal residence by almost one of the parents (and not five, as in the law). Finally, it considered the reduction from ten to five years for the period of naturalization. In the last part, it is included also, for the benefit of the applicant, of an adequate “educative offer for the knowledge of the language and the Constitution”, without considering it as a given requirement as in the 1992 law.

On the other hand, considering the 2015 project approved by the Chamber, the scenery in which it is collocated is really different. The XVII legislature began in March of 2013 and was signed by political forces favourably oriented to the reform of 1992 law, focusing on concession of the citizenship to the foreigner’s second generation. In fact, in his draft law Kyenge dealt with the theme of citizenship acquisition for immigrants’ sons. In this it was prefigured the Amato project, that prescribed the possibility of achievement after the birth within the territory if one of the parents is legally resident from almost five years. Kyenge’s draft law, the project of Amato government, the Sarubbi-Granata and campaign “l’Italia sono anch’io” laid the foundations for the 2015 text approved by the Chamber.
 
Conclusions

Although Italy has a rigid procedure of achieving citizenship, they are putted into evidence the many impulses that are pushing for a more elastic reform.

The present situation about immigration in Italy are requiring an even more urgent elasticity and inclusiveness in the application of citizenship. The strong structure and procedure do not allow foreign people to access to the privileged rights that citizenship brings with its achievement. In fact, the crucial point of the question is the situation of privilege that citizens afford in exercising their rights, due to their legal status. The inability to absorb a great part of people who are residing on the Italian territory could generate a huge problem in the sense of belongingness to the State, fundamental for an active participation and the desire to conduct a life at the service of the local community. The possession of the Italian citizenship has a huge potential in increasing the participation of people in various aspects, from taxation to civic activities. Therefore, the closeness of the law on citizenship put many limits in the valorisation of foreign individuals who could give a further contribution to the State.

On the other hand, the necessity of an explicit application in which the foreigner asks for the citizenship highlights how important is the desire to be part of the community, also at the legal level. However, in every case it is basic the accessibility to information in order to understand profoundly the requisites for the accession to citizenship. The presence of an administrative figure with the duty of giving to foreign people information above their rights, their possibilities and their condition, is an important tool for inclusion and transparency.

It is interesting to see citizenship as a sort of “pass” that opens many doors in the field of rights. Then, if it is a tool to receive rights, why citizenship could not be considered a right in itself of having rights? It seems a play of words, but in its meaning brings additional value to human rights.