Legal arguments for Italian citizenship by descent under decree-law 36/2025

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The recent approval of Decree-Law 36/2025 – now law No. 74 of May 23, 2025 – has significantly altered the rules for acquiring Italian citizenship by descent (jus sanguinis).

Previously, citizenship recognition had no generational limits, allowing descendants of Italians—regardless of how many generations removed from their Italian ancestor—to apply for nationality. However, the new law restricts citizenship recognition only to children and grandchildren of Italians, excluding great-grandchildren and further descendants.

This shift has sparked legal and constitutional debates, with critics arguing that the decree violates fundamental rights under Italian and European law. Multiple legal challenges are expected in the coming years, based on key arguments that seek to invalidate or amend the decree’s provisions.

This article examines the main constitutional and international law arguments that are likely to be used when applying for citizenship under the new framework.

Violation of the principle of equality, breach of proportionality standards, and retroactive actions

Law No. 74 of May 23, 2025 introduces retroactive restrictions on Italian citizenship, contradicting established legal principles that laws should only govern future events. This approach raises constitutional concerns, as previous Constitutional Court rulings have declared such retroactive measures unconstitutional when they lack safeguards for reasonableness and legitimate expectation.

Furthermore, the decree disregards long-standing citizenship rules, such as the principle that nationality should be regulated by the law in force at the time of the event.

The Italian Supreme Court (SS.UU. 4466/2009 and 4467/2009) has affirmed that jus sanguinis citizenship is declarative, meaning individuals inherit nationality at birth and are entitled to recognition rather than needing to acquire it through administrative conditions.

Additionally, the decree imposes gender-based restrictions, violating Article 3 of the Italian Constitution, which prohibits discrimination based on sex or birth status. The cutoff date for maternal-line claims creates unequal treatment, favoring descendants of Italian fathers while excluding those tracing lineage through their mother. Past Supreme Court rulings have reaffirmed equal citizenship transmission rights, making this restriction legally indefensible.

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Furthermore, Decree-Law 36/2025 establishes retroactive deadlines, stating that individuals who fail to complete their citizenship application by March 27, 2025, will lose their right to recognition, even if they were previously eligible. Article 25 of the Italian Constitution prohibits retroactive laws that negatively impact already acquired rights, and the Italian Constitutional Court (Sent. No. 4/2024) has ruled that any retroactive limitation must be proportionate and reasonable.

Beyond domestic concerns, the European Court of Human Rights (ECtHR) has ruled against retroactive citizenship restrictions in cases like Genovese vs. Malta (2011), affirming that states cannot arbitrarily strip individuals of nationality without legitimate justification. By retroactively voiding valid claims, Decree-Law 36/2025 may violate both Italian and international legal standards, providing affected individuals with strong grounds to contest its enforcement.

Potential judicial challenges and legal strategies

With so many constitutional and international law violations, there are two legal avenues available for challenging citizenship denials under Decree-Law 36/2025:

Appeals to the Italian Constitutional Court: Applicants can challenge the law’s constitutional validity through lower court referrals.
European Court of Human Rights: A case could be brought under Articles 6, 8, and 14 of the CEDU, citing gender discrimination and arbitrary nationality restrictions.

The future of Italian citizenship by descent

The restrictive measures introduced by Decree-Law 36/2025 mark a significant shift in Italian citizenship law, limiting access to nationality for millions of descendants worldwide.

Applicants affected by the decree should prepare legal arguments based on established jurisprudence, leveraging Italian and international human rights protections. If judicial challenges succeed, future amendments or rulings could restore citizenship rights, reinforcing the principles of equality and legal consistency within Italy’s nationality laws.

June 3, 2025
1:30 pm