Ius soli controversy in Italy
While Italy used to be a country of emigration from which millions of people migrated, particularly in the 19th and early 20th century, it has become a country of immigration in recent decades. Guido Tintori has recently observed that the percentage of children born in Italy from two foreign parents increased from 1% of the total born in 1992 to a relatively stable 15% from 2012 on. Also, the net immigration experienced by Italy was from the early 1980s no longer due to Italian returnees, but was the result of foreign immigration. It is against that background that Tintori describes the failed legislative attempt in recent years to reform the Italian ius soli provisions.
It is important to realise that Italian law has traditionally been characterised by the sharply differing way in which Italian nationality is accessible to Italian co-ethnics on the one hand, for example in Latin America, and immigrants of non-Italian descent on the other. The family model on which Italian law is based assumes concrete form in the very lenient provisions for co-ethnics, while the provisions concerning immigrants of non-Italian descent are particularly severe.
Italy had two Nationality Acts in the 20th century, the 1912 Act and the 1992 Act that is currently in force. The key to understanding Italian nationality law is realising that it embodies a family orientated model – i.e. a model in which nationality and citizenship are reserved for members who belong to a national community by descent. This family model was already present under the 1912 Act, but assumed even greater importance under the current law. This also resulted in the tightening of the conditions for ius soli acquisition compared to the law from 1912. As for naturalisation, the conditions are hard to meet. This is especially true for immigrants from outside the EU (so-called third country nationals); they have to fulfil a ten- year residence requirement if they want to naturalise. The residence requirement is four years for nationals of EU Member States and only three years for persons who can prove to be of Italian descent. Tintori therefore concludes that ‘the Act of 1992 stands out as particularly exclusive, when compared to concurrent reforms adopted by other European countries at the time’.
Both Spain and Italy have been described in the academic literature as countries that to a large extent look at the past when shaping their respective nationality laws. Even when it had become plain that the two countries were in fact no longer countries of emigration but of immigration, their nationality laws continued to be marked by a co-ethnic preference.
The legal discrepancy between ‘ethnic’ Italians and non-privileged immigrants could be perceived as a risk to the coherence of Italian society. The distinction between these two groups is also clearly reflected in the issue of voting rights. Italians abroad can vote in Italian elections and have special representatives in the Italian national parliament. Yet even proposals to grant non-Italian immigrants voting rights in local elections have not become law (EU citizens, however, have this right under Article 22 TFEU). The right to vote for Italians abroad may even have the effect of reinforcing the privileged position of co-ethnics. Since they have special representatives to defend their interests, it is not inconceivable that the co-ethnic preference of Italian law will be furthered in the future. The recent past has shown, for example, that the senators representing Italians abroad were decisive in establishing a majority for a coalition after the 2006 elections. As long as these senators – who will obviously support a further ‘ethnicisation’ of nationality law – play a crucial political role, it is unlikely that the co-ethnic attitude of Italian legislation will change.
In short, the inclusion of immigrants through nationality law is a challenge that Italy has only recently started to confront. Tintori’s paper clearly describes how proposals aimed at immigrants who want to obtain Italian nationality, especially by giving a wider role to the ius soli principle, have remained unpassed. Among the reasons for the ius soli reform being unsuccessful Tintori points to ‘the chronic disease of the lack of governability and political stability that affects the Italian political system, with almost each government forced to act under a constant threat of snap elections. Intertwined with this, citizenship has been increasingly debated along identitarian lines, with the strategic use of anti-immigration backlash for electoral politics, especially by the conservative parties. In this way, any proposal of reforming the law, even in the case of moderate amendments to ius soli provisions, has been easily short-circuited toward divisive arguments that led public opinion to polarize on issues that have nothing to do with the contents of the law’.
Author: Dr. Olivier Vonk