Residence permits pending judgment on Italian citizenship iure sanguinis: regulatory and jurisprudential profiles
This article analyzes the issue of issuing residence permits to foreigners who are seeking recognition of Italian citizenship iure sanguinis. The absence of specific legislation has led administrative practice and case law to develop a type of permit “pending judgment,” based on broad interpretations of the Consolidated Law on Immigration. The article reconstructs the regulatory framework, the most significant case law positions, and the systematic implications, finally proposing ideas for reform aimed at ensuring uniform application and legal certainty.
Keywords: citizenship iure sanguinis – residence permit – assessment judgment – judicial protection – right of defense – immigration.
1. Introduction
In recent years, there has been a growing number of disputes concerning the recognition of Italian status civitatis iure sanguinis, often linked to the need for foreigners – who are potentially entitled to it as descendants of Italian citizens – to remain in the country while the judgment to ascertain this status is pending.
This context raises the delicate issue of the residence permit to be granted to a person who has brought legal proceedings to ascertain their citizenship and who, pending the outcome of the proceedings, does not hold a valid residence permit for any other reason.
This issue, which may appear marginal, actually has constitutional and systematic implications, involving the principles of effective judicial protection (Article 24 of the Constitution) and the proportionality of administrative measures restricting the personal freedom of foreigners.
2. The relevant legal framework
Italian law does not expressly provide for a specific residence permit for foreigners who are involved in legal proceedings for the recognition of Italian citizenship iure sanguinis.
The matter is regulated by Legislative Decree No. 286 of July 25, 1998 (Consolidated Law on Immigration) and Presidential Decree No. 394 of August 31, 1999, which govern the types of residence permits and the conditions for their issuance.
Article 11 of Presidential Decree No. 394/1999 establishes that residence permits are issued for the reasons indicated by law—work, study, family, international protection, humanitarian reasons, pending employment, etc.—but does not mention the case of awaiting a judicial decision on citizenship[1].
However, Article 5, paragraph 9, of the Consolidated Law on Immigration provides that the permit may be issued “for other reasons, in special cases,” a provision that has allowed administrative practice and case law to identify residual categories, including that of awaiting judgment[2].
3. The emergence in case law of the “residence permit pending judgment”
Administrative and ordinary case law has played a central role in defining the concept of a residence permit “pending the outcome of the citizenship procedure.”
In particular, several courts (including the Court of Rome, the Court of Milan, and the Court of Florence)[3] have recognized the possibility for applicants who have brought legal proceedings to ascertain Italian citizenship iure sanguinis to obtain a temporary residence permit, often referred to as a “permit pending trial” or “permit for reasons of justice.”
3.1 Legal basis
The basis for this approach lies in the consideration that a person claiming citizenship iure sanguinis is not strictly speaking a ‘foreigner’ in the substantive sense, but a potential Italian citizen whose legal status is sub judice.
Therefore, denying them any residence permit while the proceedings are pending would be tantamount to preventing them from exercising their right of defense and participating effectively in the proceedings.
This was expressed in the circular of the Ministry of the Interior No. K.64.2 of 2007[4], which, although not having normative value, recognized the possibility of issuing a residence permit for ‘awaiting citizenship’ to individuals who have brought legal action for recognition of their status civitatis.
3.2 The position of the relevant case law
Case law has confirmed that the administration cannot proceed with the expulsion or refusal to renew the permit of those who have initiated proceedings for the recognition of Italian citizenship, recognizing the legitimacy of a temporary permit based on Article 5, paragraph 9, of Consolidated Law No. 286/1998.
Among the most significant rulings are:
– Court of Rome, Immigration Section, March 14, 2022, which recognized the right to the issuance of a permit for “awaiting the citizenship judgment,” emphasizing the principle of effective judicial protection (Article 24 of the Constitution) and the prohibition of expulsion of those who are parties to pending proceedings pursuant to Article 19, paragraph 1, of the Consolidated Law on Immigration;
– Court of Florence, order of November 5, 2021, which referred to the principle of non-discrimination between potential citizens and regular foreigners;
– Lazio Regional Administrative Court, Section I ter, May 12, 2020, No. 4998[5], which recognized the legitimacy of issuing a residence permit pursuant to Article 5, paragraph 9, of the Consolidated Law on Immigration for reasons of justice.
Case law has also clarified that the administration cannot proceed with the expulsion of a person who is awaiting judicial proceedings for the recognition of citizenship, as this is a special legal condition that cannot be equated with that of an irregular foreigner.
4. Nature and duration of the residence permit pending judgment
The residence permit pending judgment on citizenship iure sanguinis is temporary and instrumental in nature.
It does not confer any additional rights other than that of residing legally in Italy until the conclusion of the proceedings, thus avoiding administrative irregularity.
The duration of the permit is generally commensurate with the length of the proceedings, with the possibility of renewal until the final judgment.
If citizenship is granted, the permit loses its function and the person is registered as an Italian citizen; if rejected, they must leave the country or convert the permit into another legitimate permit.
5. Critical issues and prospects for reform
However, there remains a regulatory gap that leaves the decision to issue this type of permit to the discretion of the police headquarters.
The lack of uniform rules leads to differences in application and legal uncertainty, in contrast with the principles of equal treatment and legal certainty.
Looking ahead, it would be desirable to have comprehensive legislative or regulatory intervention that
1. expressly recognizes the concept of a residence permit pending judgment on Italian citizenship, regulating its duration and associated rights;
2. provides for coordination with Law No. 91/1992 on citizenship, in particular with Article 9, relating to the administrative procedure for recognition;
3. establishes a uniform procedure for issuance and renewal, with standardized forms and binding instructions for police headquarters;
4. ensure consistency with the rules on registration and access to essential public services, which are currently often denied to those without a permanent permit.
This reform would respond not only to the need for certainty, but also to the obligations of proportionality and effective protection imposed by Article 47 of the Charter of Fundamental Rights of the European Union and Directive 2008/115/EC.
6. Conclusions
The residence permit pending judicial proceedings for citizenship iure sanguinis is a praetorian and guarantee-based institution, aimed at balancing the need for migration control with the effective protection of fundamental rights.
Although there is no explicit legislative basis, case law and administrative practice have gradually recognized the need to guarantee applicants the possibility of residing legally in the country until the outcome of the proceedings.
The stabilization of this practice through specific legislation would be a significant step towards greater consistency in the Italian citizenship system and the regulation of foreign nationals’ residence.
Essential bibliography
Legislative Decree No. 286 of July 25, 1998 – Consolidated Law on Immigration
Presidential Decree No. 394 of August 31, 1999 – Implementing Regulation
Ministry of the Interior Circular K.64.2 of June 7, 2007
Court of Rome, Immigration Section, judgment of March 14, 2022
G. Savio, Italian citizenship iure sanguinis between law and administrative practice, in Riv. dir. int. priv., 2021, 3
M. Di Bari, ‘Atypical’ residence permits and protection of the right of defense, in Law, Immigration and Citizenship, 2020, 4
[1] Art. 11, Presidential Decree No. 394 of August 31, 1999, “Regulations implementing the consolidated text of provisions concerning immigration and rules on the status of foreigners.”[2] Art. 5, paragraph 9, Legislative Decree No. 286 of July 25, 1998[3] Court of Milan, order of January 12, 2019; Court of Bologna, judgment of May 4, 2020; Court of Florence, order of June 10, 2021.[4] Ministry of the Interior, Circular No. K.64.2 of June 7, 2007[5] Lazio Regional Administrative Court, Section I ter, May 12, 2020, No. 4998.
