By Andrew Montone *
On March 28, 2025, the worldwide Italian-descendant community was surprised by the publication of Decree-Law 36/2025 by the Cabinet from Italy. The decree, approved behind closed doors and without prior public discussion, represents a drastic change in the way Italy recognizes its citizens abroad, creating a break in the continuity of more than 150 years of history between Brazil and Italy, as well as with other nations that have received Italian immigrants.
One of the most alarming aspects of Decree 36/2025 is the discrimination between minor children born in Italy and those born abroad. According to the text of the decree, the transmission of citizenship would be limited to the second generation, requiring a parent or first-degree ascendant born in Italy, or residence in Italy for at least two years.
This territorial criterion completely ignores the social and economic reality that motivates the international mobility of Italian families. The choice of Italian parents to reside abroad involves complex factors related to professional opportunities, better salary conditions and the search for family well-being, and should not result in discrimination against their children.
Although the decree states that applications already filed will continue to be analyzed, it creates a serious problem between children already included in the process and a pregnant woman expecting a child, jeopardizing the child's right to Italian citizenship alongside her parents and siblings. This distinction directly violates the principle of reasonableness, which acts as a vector for constitutional interpretation and a facet of the principle of equality, enshrined in Article 3 of the Constitution of the Italian Republic.
The principle of reasonableness requires that differential treatment be justified by rationally founded and proportionate reasons. In the case in question, there is no reasonable justification for differentiating treatment between siblings from the same family, creating a situation in which some will be entitled to Italian citizenship and others will not, based solely on their date of birth in relation to the publication of the decree.
It is important to emphasize that since the establishment of jurisdiction in the Court of Rome (changed on June 22, 2022, to 26 courts that have an Appeals Court), the recommendation of the judges was to leave minors to the transcription phase, accelerating the analysis of the processes because the accertification (recognition) of minor children depended directly on the recognition of the parents, and both municipalities and consulates proceeded automatically with this registration without the need for the children to become parties to the action. This practice was consistently followed until the entry into force of Decree 36/2025.
As highlighted by Professor Vincenzo Zeno-Zencovich, in an article published in the newspaper “Il Dubbio” on April 2, 2025, “with a decree-law called 'catenaccio' – the likes of which had not been seen since the times of Covid – published and coming into force at midnight, the Government has profoundly changed Italian citizenship law. The academic emphasizes that the provision abandons the ancient tradition, first Romanesque and then medieval, and unitary, of ius sanguinis, to adopt the divergent one of ius soli.
The Declaratory Nature of Status Civitatis and its Legal Principles
To properly understand the impact of this new legislation, it is necessary to revisit fundamental legal concepts. Italian citizenship, status civitatis, is not granted, but rather recognized. It is a pre-existing right, based on the principle of ius sanguinis (right of blood), present since Roman law and expressly validated in the Italian Civil Code of 1865, remaining in effect to this day.
The recognition of Italian citizenship, or *accertamento*, is merely a declaration of a condition that already exists from birth. Italian jurisprudence has consistently reaffirmed this characteristic through numerous decisions that consolidate the understanding that the recognition of the status of a child does not presuppose a true conflict of interests between the parties, unlike what occurs with other actions concerning civil status.
This right is characterized by two fundamental properties that Italian jurisprudence has consolidated through various decisions:
- Originality: Citizenship exists independently of formal recognition, being inherent to the blood relationship.
- Imprescriptibility: The right to citizenship does not expire over time and is not subject to expiration dates.
Sentence no. 8102/2016, published on April 21, 2016 by the Tribunale di Roma, established that “the status of citizenship must be recognized judicially (and even independently of an explicit declaration of will by the interested party), including for the legitimate child of a citizen mother born before the entry into force of the Constitution, given the characteristics of absoluteness, originality, unavailability and imprescriptibility of the status civitatis.”
The Court of Cassation, in ruling no. 4466 of 25 February 2009, recognised that “even for situations that pre-existed the entry into force of the Constitution, it must be considered that the right to citizenship is a permanent and imprescriptible status, subject to judicial protection at any time if its illegitimate deprivation continues even after the entry into force of the Constitution due to a discriminatory rule declared unconstitutional.
More recently, in the Corte di Cassazione, judgment no. 25317 of August 24, 2022, the right to citizenship was defined as a subjective and imprescriptible right, acquirable by original title by birth and subject to judicial protection at any time based on simple proof of the acquisitive fact integrated by the birth of an Italian citizen.
As highlighted by Giuseppe G. Floridia in his study on Diritto Interno and Diritto Internazionale, there is a clear hierarchy of norms in the Italian legal system. International conventions ratified by Italy, such as the New York Convention on the Rights of the Child (1989), incorporated into the Italian legal system by Law No. 176 of 1991, have the status of norme interpositive, standing between ordinary law and the Constitution, as established by judgment No. 349/2007 of the Corte Constituzionale.
Paradox of Italian emigration and the decree
Paradoxically, the decree penalizes families who have often been forced to leave Italy precisely because of the lack of economic opportunities. As highlighted by ISTAT (Italian National Institute of Statistics) in its 2022 report “Migrazioni internazionali e interne della popolazione residencial”, more than 131.000 Italian citizens left the country in 2021, 41% of them young people between 18 and 34 years old, in search of better opportunities abroad.
A well-documented phenomenon is the Italian “brain drain” (fuga di cervelli). According to an article by Professor Claudia Di Giorgio, published on the Bocconi University platform in January 2023, “in the case where the net flow of highly qualified human capital is strongly unbalanced in one direction only, the damage is more serious, as it represents a loss of human resources to the country of origin.”
The professor concludes that “the brain drain is increasing and getting worse, we have gone from being a symptom of a disease to becoming an autonomous disease. This is why anyone who deals with the brain drain has long feared that Italy is a country heading towards decline.”
This exodus of young Italians is particularly pronounced in small municipalities and regions in southern Italy. According to the report “Italiani nel mondo” by the Fondazione Migrantes (2023), more than 5,9 million Italian citizens were registered with the AIRE (Anagrafe degli Italiani Residenti all'Estero) in 2022, representing almost 10% of the population.
The phenomenon of youth emigration is significant: as reported by Corriere della Sera in an article dated March 9, 2025, “in 13 years – from 2011 to 2023 – around 550 young people between the ages of 18 and 34 left Italy to move abroad. Around 172 returned, generating a negative balance of 377.” The motivations are clear: “28% leave out of necessity and 23% out of choice. Among the former, many seek better job opportunities (26,2%) and a better quality of life (23,2%).”
This exodus has a measurable economic impact: the Foundation has calculated the impact of the loss of this human capital at a loss of 133,9 billion euros over 13 years: 22,9 billion for Lombardy, 14,5 for Sicily and 12,5 for Veneto. In the 2021-2022 biennium, the annual value of human capital leaving Italy was 8,4 billion euros.
The distinction based on place of birth directly contradicts Article 3 of the Italian Constitution, which guarantees the fundamental principle of equality, as well as the principles enshrined in the New York Convention.
The decree effectively creates two distinct categories of children of Italian citizens, based exclusively on their place of birth, something that Italian case law has already overcome in other contexts. The Constitutional Court, in its landmark ruling no. 30/1983, had already abolished distinctions between legitimate and natural children, stating that “the legal status of children cannot be the object of discrimination”.
If such an absurdity is approved, it will characterize geographic eugenics, destroying descendants of Italians born abroad who will not be able to pass on citizenship to their descendants. It creates a hierarchy among descendants of Italians based on their place of birth or residence, violating the fundamental principle of human dignity, as it disregards the Italian identity of descendants of emigrants based on an artificial territorial criterion.
The Status of Minor Children and the Settlement: Innocent Victims of a Cruel Policy
The most disturbing aspect of the decree is how it affects minor children. In my practice, I have seen four categories of children who will be left in legal limbo:
• Children already born but not included in the administrative processes
• Minors absent from legal proceedings filed before the decree
• Those in the transcription phase whose names did not appear in the sentence
• Unborn children, creating the absurd situation where, in the same family, some children will have citizenship and others will not.
Although the decree states that applications already filed will continue to be analyzed, it creates a serious problem between children already included in the process and a pregnant woman expecting a child, jeopardizing the child's right to Italian citizenship alongside her parents and siblings. This distinction directly violates the principle of reasonableness, which acts as a vector for constitutional interpretation and a facet of the principle of equality.
This situation directly clashes with the principle of the superior interest of the minor. (best interest of the child), internationally recognized as a fundamental parameter for decisions affecting minors. As noted by the jurist S. Galante in the study “L'interesse concreto del minore nell'accertamento dello status filiationis” (Osservatorio nazionale sul diritto di famiglia, 3/2019), “the best interests of the child today constitute the main guiding criterion for all regulations relating to the legal status of minors”
The situation of unborn children is particularly serious, as it violates not only the principle of equality (Art. 3 of the Constitution), but also the aforementioned principle of ragionevolezza, which requires that legal norms be rationally justifiable. The Italian Constitutional Court has repeatedly stated that this principle is a limit to the discretionary power of the legislator. Discrimination is unjustified and unreasonable when substantially identical situations are treated differently. An unborn child of Italian parents, who would have been included in the proceedings if he had been born before the publication of the decree, finds himself in a substantially identical situation to his siblings, and differential treatment is unreasonable.
Particularly alarming is the situation that the decree creates for minor children of Italians born abroad, who would find themselves in the absurd position of needing a permesso (authorization) to be with their own parents in Italy. This bureaucratic requirement for children of citizens, who would then be treated as foreigners in their ancestral country of origin, represents an unreasonable rupture of the family bond and a clear violation of the constitutional principles of equality and family unity. This creates an absolutely unreasonable situation, where children and adolescents would be subjected to a legal regime for foreigners in the country where their own parents have full citizenship rights, creating unjustifiable discrimination within the family nucleus itself.
Minor children have the right, as established in the Italian Civil Code, to maintain a balanced and continuous relationship with each of their parents, to receive care, education, instruction and moral assistance from both, and to maintain meaningful relationships with the ascendants and relatives of each parental line. Furthermore, the Italian Civil Code in its article 320 is clear that parents are responsible for their born and unborn children in all acts of civil life. Decree 36/2025, by preventing the recognition of citizenship to several minor children, compromises this balance.
Questions about the constitutionality of the decree
The use of the instrument of the decree-law to introduce such a radical change in the legislation on Italian citizenship raises serious doubts as to the constitutionality of the procedure. Article 77 of the Italian Constitution limits the use of decree-laws to extraordinary cases of necessity and urgency.
The act of urgency in the present case is frontally unconstitutional due to the defect in its form, which should be discussed rationally by those who have the original authority to discuss such a matter, with another power being able to exercise another authority only in exceptional cases, such as the use of a legislative decree (provisional measure in Brazil) as a result of the principle of checks and balances, which is not present in a matter as sensitive as citizenship, which involves issues such as human dignity, fundamental and personalized rights of the individual.
Constitutional jurisprudence, especially in judgments no. 171/2007, has established that the lack of requirements of necessity and urgency constitutes a defect in constitutional legitimacy. The Constitutional Court has stated that the abuse of the decree-law, when the requirements of extraordinary necessity and urgency are clearly absent, constitutes a violation of a constitutional precept.
As Professor Zeno-Zencovich states in his analysis published on April 2, 2025, it is particularly serious that the “non-Italian children, feeding hundreds of circles and charitable institutions in a love for the distant motherland who now wear the clothes of the hostile and repellent stepmother.”
Conclusion
Decree 36/2025 represents a turning point in the history of the recognition of Italian citizenship, establishing unjustifiable discrimination between minor children born in Italy and abroad. By limiting the transmission of citizenship to the second generation and creating obstacles to the recognition of minor children already born, the decree contravenes fundamental principles of Italian and international law.
The declaratory, original and imprescriptible nature of the recognition of citizenship, enshrined for more than 150 years, is being attacked by a decree-law that, in addition to its questionable constitutionality, creates an abrupt break in the historical, social and cultural ties that unite Italy to the communities of descendants spread throughout the world.
As established by the Court of Cassation in judgment no. 25317/2022, the right to citizenship is “a subjective and imprescriptible right, acquired by original right by birth and subject to judicial protection at any time”. This settled case-law understanding is ignored by Decree 36/2025, which seeks to create retroactive restrictions on a right that, by its very nature, is not subject to temporal limitations.
There is an urgent need to review this legislation, which must take into account, above all, the principles of equality, non-discrimination and the best interests of the child, in addition to respect for the international commitments undertaken by the Italian Republic. Citizenship is not a privilege to be granted according to arbitrary criteria of place of birth, but a right based on the blood relationship that unites generations of descendants to the land of their ancestors.
Families affected by this decree must maintain confidence in the Italian judicial system, especially the Constitutional Court.
The Italian jurisprudential tradition has been consistent in defending the fundamental principles of the legal system, especially when it comes to protecting the inalienable rights of the human person and ensuring equality among citizens. As demonstrated throughout this study, there are solid legal grounds for declaring Decree-Law 36/2025 unconstitutional, and there are reasons to believe that the Constitutional Court, when called upon to speak out, should reestablish the legal order violated by this untimely and discriminatory legislative measure, thus bringing the spirit of renewal and continuity of Tom Jobim's classic Águas de Março.
References
ITALIAN CONSTITUTIONAL COURT. Judgment no. 30/1983.
ITALIAN CONSTITUTIONAL COURT. Judgment no. 171/2007.
ITALIAN CONSTITUTIONAL COURT. Judgment no. 349/2007.
ITALIAN COURT OF CASSATION, United Chambers. Judgment No. 4466 of 25 February 2009.
ITALIAN COURT OF CASSATION, United Chambers. Judgment No. 25317 of 24 August 2022.
DI GIORGIO, C. A permanent generation? I got away with cervelli from Italy. Bocconi University, January 2023. Available at: https://matematica.unibocconi.eu/articoli/una-generazione-perduta-la-fuga-dei-cervelli-dall%E2%80%99italia
FONDAZIONE MIGRANTES. Rapporto Italiani nel mondo 2023. Rome: Tau Editrice, 2023. Available at: https://www.migrantes.it/rapporto-italiani-nel-mondo-2023/. Accessed on: 10 April. 2025.
GALANTE, S. The concrete interest of the minor in the agreement of the filiation status. National Observatory of the Rights of the Family, v. 3, p. 45, 2019.
STAT. International and internal migration of the resident population. Rome: Istituto Nazionale di Statistica, 2022. Available at: https://www.istat.it/it/archivio/274692. Accessed on: 11 April. 2025.
REDESIGN ECONOMY. Giovani in flight from Italia, another 100 thousand in a year in all'estero (and only a third is a tornado). Corriere della Sera, 9 March. 2025. Available at: https://www.corriere.it/economia/lavoro/25_marzo_09/giovani-in-fuga-dall-italia-oltre-100-mila-in-un-anno-vanno-all-estero-e-solo-un-terzo-e-tornato-9bc9f24d-8b66-4e8c-ad64-9c89ebcedxlk.shtml
ITALIAN REPUBLIC. Legislative Decree No. 51/1998, which implemented Law No. 254/1997 on the institution of the sole judge of first instance. Available at: https://www.gazzettaufficiale.it/eli/id/1998/03/20/098G0100/sg. Accessed: April 10, 2025.
COURT OF ROME. Judgment no. 8102/2016, published on 21 April 2016.
ZENO-ZENCOVICH, V. Il DL Cittadinanza che discriminates pure gli italiani del Sudamerica. Il Dubbio, 2 April. 2025.
Andrew Montone is a lawyer specializing in Italian citizenship, registered with the Ordine degli Avvocati di Milano, the Portuguese Bar Association and the Brazilian Bar Association. He currently works at Studio Legale Piccolo, in Italy, focusing on immigration and citizenship.
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