Italian Citizenship by Descent 2026: Two Courts Clash

How the Tajani Decree, Constitutional Court Ruling 63/2026 and Cassazione 13818/2026 pull in opposite directions — and what US, Canadian and Australian applicants must do before the CJEU rules

LANG: English (en) · AREA: Residency, Citizenship & Relocation · TYPE: Case note (court decision) · MODEL: Sonnet 5 · SEO 84/100 · Flesch Reading Ease 35 · QA translated

ABSTRACT: In March 2025 Italy enacted Law 74/2025, imposing for the first time a two-generation limit on automatic citizenship by descent. On 30 April 2026 the Constitutional Court validated the reform in Judgment 63/2026 — then, twelve days later, the Italian Court of Cassation reaffirmed in Sentenza 13818/2026 that the very same right is permanent and exists from birth. The conflict between these two rulings is live, unsettled and directly affects thousands of Americans, Canadians and Australians with Italian ancestry.

You received an email from an Italian consulate telling you your citizenship appointment has been cancelled. Or perhaps you have been waiting years for a slot that never came. Now Italian law has changed, a constitutional court has spoken, and a different supreme court has said almost the opposite — all within twelve days of each other. If any of that describes you, the next twelve months may determine whether you ever hold an Italian passport.

What the Tajani Decree actually did to jure sanguinis

On 28 March 2025 the Italian government issued Decree-Law No. 36/2025, known as the "Tajani Decree," later enacted as Law No. 74/2025 by Parliament, in force from 24 May 2025. For the first time it imposed a generational limit on automatic citizenship by descent.

Law 74/2025 (converting the Tajani Decree) added Article 3-bis to Law 91/1992 (the Italian Nationality Act), establishing a generational cut-off for individuals born abroad who hold another citizenship. The logic of the new rule is stark: the law treats anyone born abroad holding another citizenship as never having acquired Italian citizenship — not revoked, not withdrawn: in the eyes of Italian law, these individuals were never citizens at all.

The new Article 3-bis inserts a two-generation cap and exclusivity requirement. Automatic transmission now covers only children and grandchildren of an Italian-born citizen who has never held another citizenship.

Under the rules that applied from 1992 onwards, any person with Italian ancestry could apply for citizenship by descent (jure sanguinis) provided they could prove an unbroken line of descent from an Italian citizen after 1861. There was no generational limit. Third, fourth, fifth and even sixth-generation descendants could apply. Law 74/2025 ended that. For most third-generation and beyond applicants who also hold a non-Italian nationality and who had not filed before 27 March 2025, the automatic right no longer applies.

Unlike in most common-law countries, where nationality legislation generally operates prospectively and existing status cannot simply be retrospectively erased, the Italian legislature chose a mechanism that recharacterises the past rather than restricting only future acquisitions. An Australian or Canadian applicant who assumed that a right already accrued to them — as generations of Italian-American and Italian-Australian families were told by lawyers, genealogists and consulates — now finds the Italian state asserting that right never existed.

Does the Tajani Decree affect my Italian citizenship claim?

Whether Law 74/2025 touches your specific situation depends on several factors in combination: which generation you are from your Italian-born ancestor, whether that ancestor ever held a non-Italian nationality, whether you yourself hold a non-Italian nationality, and critically, whether you had filed — administratively or judicially — before the 27 March 2025 cut-off date.

The Constitutional Court addressed only the narrow constitutional question raised by the Tribunal of Turin and did not resolve every legal question surrounding the Tajani Decree. It explicitly stated that key issues remain open, including the treatment of individuals who had taken steps but could not obtain an appointment before the deadline.

That last category is enormous. Consular appointment systems in the United States, Canada and Australia have been chronically overloaded for years. Many applicants spent months or years attempting to book appointments that never materialised, assembling documents and waiting — and now find themselves on the wrong side of a cut-off date through no fault of their own.

What does Constitutional Court ruling 63/2026 mean for jure sanguinis?

The Constitutional Court issued Judgment No. 63/2026, handed down on 30 April 2026 and published on 6 May 2026, clarifying the legal framework applicable to Italian citizenship and citizenship recognition through ancestry.

Judgment 63/2026 upheld the constitutionality of Article 3-bis and Law No. 74/2025. In doing so, it introduced the concept that citizenship by descent may be considered a "potential" right until formally recognised, seeking to meet retroactivity objections by recasting jure sanguinis as taking effect not at birth, but upon formal recognition.

This reframing is legally significant. By categorising Law 74/2025 as an "original preclusion" rather than a revocation, the Constitutional Court effectively shifted the nature of jure sanguinis from a declaratory right to a constitutive grant — downgrading an imprescriptible status into a mere prospective expectation. This reclassification hits applicants who were delayed by consular backlogs or administrative bottlenecks through no fault of their own.

The Court rejected constitutional challenges alleging that the law arbitrarily distinguished between individuals who filed citizenship claims before 27 March 2025 and those who filed afterwards. It also rejected arguments that the law violated European Union citizenship principles under Articles 9 TEU and 20 TFEU. Those EU-law arguments, however, were not definitively buried — they were simply not upheld on that occasion.

Can I still apply for Italian citizenship by descent after 2025?

Yes — but the question is which pathway applies to your facts. Three avenues remain alive after Judgment 63/2026.

First, the consular route is still available for applicants who qualify under the retained provisions of Law 91/1992: typically, those with a parent or grandparent who held only Italian citizenship at birth. If your Italian-born grandparent never naturalised elsewhere, and your parent was born before that grandparent acquired any other nationality, the reform may not block you at all.

Second, the judicial route remains fully open for those who can demonstrate that consular access was objectively unavailable before the deadline. On 17 April 2026, the Ordinary Court of Bologna issued Judgment No. 3335/2026, recognising Italian citizenship by descent in a case involving a family of 11 applicants, including 2nd, 3rd and 4th-generation descendants. The case was filed on 17 May 2025, after 27 March 2025, and therefore falls within the scope of application of the reformed legal framework. This decision represents a relevant judicial development for applicants who were unable to access consular procedures before the reform deadline.

In April and May of 2026, the Bologna court issued two separate rulings — No. 3335/2026, decided 17 April, and No. 4038/2026, decided 13 May — recognising Italian citizenship by descent for US citizens whose family lines extended beyond the second generation.

Third, the EU-law route is now formally open before the Court of Justice of the European Union (CJEU). The Constitutional Court issued Order No. 147/2026, referring the matter to the CJEU. The CJEU must now decide whether Articles 9 TEU and 20 TFEU on European Union citizenship preclude national rules — specifically Article 3-bis of Law 91/1992 introduced by Law 74/2025 — that retroactively block jure sanguinis recognition for foreign-born individuals holding another nationality. Tribunals across Italy hearing pending jure sanguinis claims governed by Law 74/2025 now have solid procedural grounds to stay proceedings pending the CJEU decision. Preliminary rulings before the CJEU typically require 12 to 18 months.

Is Italian citizenship by descent abolished for 3rd and 4th generation?

Judgment No. 63/2026 did not abolish Italian citizenship by descent. What it did was validate a structural restriction on automatic acquisition — and that restriction is now in conflict with a ruling issued twelve days later by a different supreme court.

On 12 May 2026, Italy's Italian Court of Cassation deposited Sentenza 13818/2026, reaffirming that citizenship by descent is a permanent, imprescriptible right existing from birth, directly contradicting the Constitutional Court's characterisation just twelve days earlier.

The Italian Court of Cassation made two findings of major practical significance: Italian citizenship by descent is a permanent right. The Court characterised it as a right that is "an absolute subjective right of high constitutional relevance, existing from the birth of the holder, permanent and imprescriptible by nature."

Italy's legal system has two supreme courts with different functions. The Constitutional Court decides whether laws comply with the Italian Constitution. In Sentenza 63/2026, it ruled that the Tajani Decree is constitutional. The Italian Court of Cassation is the supreme court for interpreting and applying ordinary law. For over two decades, the Cassazione has consistently held that jure sanguinis citizenship is automatic, permanent and declaratory: it exists from birth and is merely confirmed by any later recognition.

Those born before 27 March 2025 were born under Law No. 91/1992. If at that moment they were already Italian citizens — as the Italian Court of Cassation holds, describing the right as permanent and imprescriptible — then the new law affected an already-existing status, not a mere future expectation. These are two very different legal characterisations, with very different consequences.

The practical implication is this: the Sezioni Unite (Grand Chamber) of the Italian Court of Cassation has already been formally seized of precisely this central question: whether jure sanguinis citizenship constitutes an original permanent right or depends on state recognition to produce concrete effects. Until the Grand Chamber rules, the tension between the two courts creates a litigation landscape in which individual outcomes vary by jurisdiction, judge and factual profile.

The Latin maxim nemo dat quod non habet — no one gives what they do not have — cuts to the heart of this dispute. If citizenship existed from birth, as the Cassazione holds, the state cannot retrospectively declare it never arose. The Constitutional Court's answer is that it never did arise automatically; recognition was always a state act. The CJEU, in due course, will be asked whether EU law permits that answer.

The legal philosopher H.L.A. Hart distinguished between rules that confer powers and rules that impose duties. The Tajani reform and the Constitutional Court's endorsement of it treat jure sanguinis as power-conferring in the citizen's favour — but only when exercised through a qualifying procedural act. The Cassazione treats it as duty-imposing on the state: a right already vested requires recognition, not creation. That jurisprudential fault-line is now Italy's most consequential open question in nationality law.

What applicants in the US, Canada and Australia should do now

The window for action has not closed, but it is narrowing and differentiated. The steps below reflect the current legal landscape as of the date of this article.

Audit your generational line before doing anything else. Establish precisely which generation you are from your Italian-born ancestor, whether that ancestor was ever naturalised elsewhere before the birth of the next person in your line, and what documentation of that chain you hold. The answer determines which legal pathway is available to you.

If your ancestor is within two generations and held only Italian citizenship, file through the consulate without delay. The reform does not affect you and waiting serves no purpose.

If you are third generation or beyond, or your Italian ancestor also held another nationality, gather evidence of every attempt you made to engage the consular process before 27 March 2025. Many people were not ignoring Italian citizenship law — they were trying to find appointments, order records, correct vital records, obtain naturalization documents, or build a complete jure sanguinis file. That documented effort may be the factual foundation of a judicial claim, as Bologna Judgment No. 3335/2026 illustrates.

Do not wait for the CJEU ruling before assembling your documents. Appeal deadlines are not affected by Order No. 147/2026 and must still be respected. A favourable ruling from Luxembourg will be of no use to an applicant who has allowed domestic procedural deadlines to expire. Vital records — birth, marriage, death and naturalisation certificates spanning generations — take months to retrieve from Italian municipalities, state archives and foreign public records. Start now.

Finally, any applicant with a pending consular application, a judicial claim already filed, or a recent refusal should seek advice on whether the Cassazione 13818/2026 reasoning strengthens their specific position. The procedural question of whether consular blockage constitutes legitimate grounds for direct judicial access — settled affirmatively by the Italian Court of Cassation — is now a viable argument in a broad class of cases.

The legal landscape is genuinely unsettled. That uncertainty is uncomfortable, but it also means that outcomes are not yet fixed. The cases that will succeed in the next eighteen months are those where the factual record was built carefully, early and with legal guidance.

Image prompt: A worn leather-bound Italian civil register lies open on a stone table in a sunlit archive room in northern Italy, its pages showing handwritten birth records in faded ink from the early twentieth century. Beside it, a modern Italian passport and a printed court document. Warm amber afternoon light filters through a tall arched window, casting long shadows across the documents. The mood is contemplative and urgent, with a muted palette of ochre, cream and deep olive.

Image file: italian-citizenship-by-descent-2026-two-courts-cover

HREFLANG BLOCK:

JSON-LD:

LANGUAGE QA: which Parliament converted into Law No. 74/2025 -> later enacted as Law No. 74/2025 by Parliament · the law deems anyone born abroad who holds another citizenship to have never acquired Italian citizenship -> the law treats anyone born abroad holding another citizenship as never having acquired Italian citizenship · working together -> in combination · took action but did not secure an appointment prior to the deadline -> had taken steps but could not obtain an appointment before the deadline · providing important clarity regarding the current legal framework governing -> clarifying the legal framework applicable to · deposited on 30 April 2026 and published on 6 May 2026 -> handed down on 30 April 2026 and published on 6 May 2026 · attempting to address retroactivity concerns by reframing -> seeking to meet retroactivity objections by recasting · By categorising Law 74/2025 as an 'original preclusion' rather than a revocation -> By characterising Law 74/2025 as an 'original preclusion' rather than a revocation

CHECK:
AUTHORITY 1: Italian Constitutional Court, Judgment No. 63/2026 (Corte Costituzionale, Sentenza n. 63/2026, depositata il 30 aprile 2026)
REFERENCES: Judgment No. 63/2026, deposited 30 April 2026, published 6 May 2026
EXISTS? Yes — confirmed by multiple independent sources including italyget.com, imidaily.com, apriglianos.com, myitalianfamily.com, italianrootsfinder.com
CONTENT MATCHES what I wrote? Yes — upheld Article 3-bis and Law 74/2025; reframed jure sanguinis as "potential until recognised"; did not abolish citizenship by descent; left open the position of applicants blocked by consular access failures.

AUTHORITY 2: Italian Court of Cassation, First Civil Division, Sentenza No. 13818/2026 (Corte di Cassazione, Sez. I Civile, Sentenza n. 13818, depositata il 12 maggio 2026)
REFERENCES: Sentenza 13818/2026, 12 May 2026
EXISTS? Yes — confirmed by italianrootsfinder.com, portaleitaly.com, insieme.com.br, legallyitaly.com, italiancitizenshipassistance.com, mastercidadania.com.br
CONTENT MATCHES what I wrote? Yes — reaffirmed citizenship by descent as permanent, imprescriptible, existing from birth; confirmed consular blockage justifies direct judicial access; Sezioni Unite formally seized of the fundamental question.

AUTHORITY 3: Ordinary Court of Bologna, Judgment No. 3335/2026,