Legal Database

“Considering that, according to the principles set out in the aforementioned decision: — in the case of the submission of the first application, the declaration of inadmissibility due to lack of documentation is justified, as it prompts the foreign citizen to ‘provide his or her participatory contribution aimed at overcoming the objection, through the submission of a new application supplemented with the elements necessary to demonstrate to the administration the possession of the required qualifications.’”

“With regard to the requirement of residence, the merely registry-based data must be disregarded, and instead reference should be made to the applicant’s stable abode (…); taking into account that […] the lack of registration of his or her official residence was due solely and exclusively to the negligent conduct of the parents, who held parental authority and were therefore solely responsible for safeguarding the child’s interest in being lawfully registered within the State’s territory.”

In particular, “the burden of proof placed on the applicant refers exclusively to the State or States with which he maintains or has maintained significant ties […]. If, in fact, it were to refer to all the States in the world, it would amount to a probatio diabolica, since it concerns an absolutely indeterminate negative fact.”
It is equally well established that, for the recognition of stateless status, a formal act depriving the person of their previous nationality is not required; refusals by national authorities responsible for granting the typical protection afforded to citizens are sufficient.

The administrative courts have expressed the same view, and in this regard the following passage is noteworthy: “Subsidiary protection shares with refugee status, for the purposes relevant here, the essential impossibility of returning to the country of origin, which consequently entails the impossibility of obtaining and producing the original documentation required for the citizenship application procedure under Law No. 91 of 1992. The possibility of replacing certification from the country of origin with a sworn declaration (atto notorio) is, in fact, grounded in the concrete danger faced by the individual when contacting the authorities of the country of origin — a danger which, unless proven and specifically determined otherwise by the Public Administration, must be presumed to exist in the case of a foreign national who is the beneficiary of subsidiary protection.”

It held that a declaration of inadmissibility issued before the assignment of the K10 code must be interpreted as an interlocutory decision by the public administration, following which a contradictory procedure must be initiated, and therefore has “a non-decisional nature, as it invites the applicant to cooperate in the administrative process by submitting a new (supplemented) application, allowing the identified obstacle to be overcome.”
According to the Court, the notification by the public administration of the absence of an element necessary for the positive conclusion of the procedure constitutes a sort of “notice” from the online portal, whose sole purpose is to immediately draw the applicant’s attention to any irregularities in the formulation of the application and in the completeness of the attached documentation, thereby allowing him or her to promptly submit a new, error-free application using the same valid documentation, as well as the fee and stamp duty already paid.
In essence, in the view of the Council of State, the invitation by the public administration to complete and regularize the application — as conveyed in the contested communication — clearly resembles the notice provided for under Article 10-bis of Law No. 241/1990.

It established that, as a result of the Constitutional Court’s judgments No. 87 of 1975 and No. 30 of 1983, “Italian citizenship is reacquired, as of January 1, 1948, also by the child of a woman in the situation described, born before that date and while Law No. 555 of 1912 was in force, since the relationship of filiation, after the entry into force of the Constitution, entails the transmission to him or her of the status of citizen, which would have belonged to him or her by right in the absence of the discriminatory law.”
Therefore, according to the United Sections of the Court of Cassation, citizenship status must also be recognized for the son or daughter of an Italian mother born before the entry into force of the Constitution, and thus also before 1948.

“Residence — states Article 43 of the Civil Code — is the place where a person has their habitual abode, without any reference to the need to carry out the further formality of registration in the civil registry.”

“The conclusion can only be in favor of the appellant in the first instance, since neither in the challenged decision nor during the proceedings did the Administration present any elements indicating the reasons why the granting of Italian citizenship to the present respondent would not be ‘appropriate.’ The mere reference, contained in the decision itself, to a note from the Department of Public Security — which was neither attached to the act nor even partially disclosed during the proceedings — in no way allows the interested party to know the reasons for the refusal, nor does it allow this Court to assess the reliability of the elements on which that refusal was based.”

Although the time limit set for the conclusion of the procedure for granting Italian citizenship is not mandatory, “this does not at all mean, however, that its violation is devoid of any legal consequence (...) On the contrary, it must be affirmed that the Administration’s inactivity or dilatory conduct constitutes a pathological fact even in the case of non-mandatory deadlines — a fact which the legal system requires to be remedied.”

Article 10 of Legislative Decree No. 30/2007 provides that:
"Family members of a Union citizen who are not nationals of a Member State, as referred to in Article 2, after three months from their entry into the national territory, shall apply to the police headquarters (Questura) having jurisdiction over their place of residence for the ‘Residence card of a family member of a Union citizen’."