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Death of spouse does not hinder citizenship process

Recently updated on 15 Mar 2023

28 Feb 2023 - Immigration Law - Min Read 5 min
Death of spouse does not hinder citizenship process

The death of the (Italian) spouse cannot result in the rejection of the surviving spouse’s application to acquire Italian citizenship by marriage.

This is what the Constitutional Court ruled in Judgment No. 195 of 2022, on the subject of citizenship, acquisition by marriage, and causes hindering the acquisition of citizenship, declaring illegitimate Article 5, paragraph 1, of Law No. 91 of February 5, 1992, precisely “in the part in which it does not exclude, from the list of causes hindering the recognition of the right to citizenship, the death of the applicant’s spouse, which occurred during the pendency of the terms provided for the conclusion of the procedure.”

Unlike what has happened so far, from now on, the death of the Italian spouse cannot be a ground of impediment for the acquisition of Italian citizenship by marriage.

The Constitutional Court’s conclusions

The Court found the current legislation to be “contrary to the principle of reasonableness,” since it considers the death of the spouse, which occurs after the application has been submitted, i.e., after the applicant has already acquired the requirements for obtaining citizenship itself, to be a real cause of rejection of the application for the recognition of citizenship for a foreigner married to an Italian citizen.

The foreign spouse, who has contracted marriage with an Italian citizen, can apply for citizenship only after having accrued the requirements of the law, therefore, the spouse’s subsequent death does not change the substance of the rights already acquired.

In our legal system, an unforeseeable event, such as the death of a spouse, “...even if it dissolves the marriage bond, does not, however, cause the fullness of the protections, both private and public, founded on having been part of a family community, based on marital solidarity, to disappear, and therefore cannot inhibit the entitlement of a right supported by the relevant constitutive prerequisites.”

Italian citizenship by marriage

Law 05/02/1992 n.91 (as amended), which informs us on how to obtain Italian citizenship by marriage, tells us that the spouse of an Italian citizen has the right to become an Italian citizen in turn, after two years from the date of marriage (one in the presence of children), if both have elected Italy as their residence, or after three years (18 months in the presence of children), in the case where they have settled abroad.

But then, the same norm, in order to protect the institution of marriage and not make it a mere means of obtaining “easy” citizenship, forgets to protect those who find themselves unpredictably deprived of their spouse’s company.

In fact, according to Article 149 of the Civil Code, “marriage is dissolved by the death of one of the spouses and in other cases provided by law.”

Unfortunately, as a result of the termination of marriage, the application for citizenship is cancelled, which is why a distinction should have been made, already in the same law, between death and “other cases provided by law” (separation, annulment, termination of civil effects …).

On the one hand, the case of an involuntary termination, and on the other, a case in which it is possible to consciously choose to end the marriage, even though this will result in the loss of rights already acquired.

A spouse who dies cannot lead one to think that the marriage was a pretext for obtaining citizenship.

The story from which the ruling stems

The story from which the ruling stems is that of G. G., a Ukrainian citizen who has resided in Italy since 2007.

G.G. married an Italian citizen in 2009, with whom she maintained residence in Italy.

In 2011, G.G. filed an application with the Prefecture to request recognition of Italian citizenship by marriage.

In April 2013, she was notified of an order declaring the application “inadmissible” due to the death of her spouse, which occurred in 2012.

G. G. at that point took legal action to ascertain her right to obtain Italian citizenship, alleging that she had resided in Italy for the prescribed period of at least two years after her marriage, thus fulfilling the prerequisite required by Article 5 of Law No. 91 of 1992.

From 2013 to the present, a few hearings have passed under the bridge, not least because the Ministry of the Interior has joined the suit, inferring the legitimacy of the defendant administration’s actions and opposing the plaintiff’s claim, asking that it be dismissed.

The death of the spouse was an obstructive cause for the purpose of acquiring citizenship; the applicant’s spouse had died, so there was nothing for the Ministry to do but to close the file.

If G.G.’s story has a different ending, it is only thanks to the Ordinary Court of Trieste, Civil Section, which, in an order dated September 29, 2021, to support it, promoted a judgment on the constitutional legitimacy of Article 5 of Law No. 91 of February 5, 1992, New Regulations on Citizenship.

The referring court held that it had to raise questions of constitutional legitimacy “of Article 5 of Law No. 91 of 1992 precisely insofar as it does not exclude, from the list of causes preventing the recognition of the right to citizenship, the supervening death of the applicant’s spouse during the pendency of the terms provided by law for the conclusion of the relevant procedure.”

For the Court of Trieste, Article 97 of the Constitution would also be violated, in that “the recognition of the legal position of the individual” would be jeopardized “by the duration of the administrative procedure,” in contrast to the principle of good performance of public administration.

The latter, on the other hand, would require that the duration of the administrative procedure should not be “to the detriment of the demand for ascertainment of the right, similarly to what can be inferred from the principles of due process set forth in Article 111 of the Constitution.”

There would be no justification for equating the “death of the applicant’s spouse, which occurred […] following the submission of the application referred to in the aforementioned art. 5,” a hypothesis that is “entirely random” and independent of the behavior of the person entitled to citizenship, with the “other situations contemplated therein (separation, annulment, termination of civil effects and other causes of dissolution of marriage),” which are attributable to the applicant’s sphere of will and domain.

The ruling not only recognized G.G.’s right to be an Italian citizen but modified the rule for all those who should find themselves in the same situation as her and those who are waiting to complete the process for citizenship application.

Our lawyers from the Immigration Department would be happy to provide briefings on the matter to anyone seeking news on the subject.

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Calogero Boccadutri

Calogero Boccadutri is the Managing Partner of Boccadutri International Law Firm. He has trial experience in Forex, Personal Injury and Administrative litigation.

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