Introduction

Italian citizens who have resided in the United Kingdom prior to the end of Brexit transition period on 31 December 2020 (when EU law cease to apply in the UK) have been impacted by a serious Home Office error in its approach to Italian citizenship. That error in approach has meant that the Home Office has been refusing to recognise Italian citizens as holding Italian citizenship at the end of the Brexit transition period and has been refusing them post-Brexit UK residence rights in consequence.

Acting on its mistake approach, in respect of certain Italian citizens, the Home Office has been asserting that it has granted them EU Pre-settled Status (‘PSS’)/limited leave to remain in error – for want of a qualifying nationality of an EU member state at the material time – and on so holding, it has been refusing to grant them Settled Status/indefinite leave to remain at the end of 5-year period of PSS. The result is that, without more, Italian citizens so affected will have ceased to be lawfully resident in the UK at the end of their period of time holding PSS/limited leave to remain.

The Home Office practice of declaring PSS to have been granted in error is underpinned by a Home Office published document that refers to a policy . That policy raises a discrete legal issue as to whether the practice of declaring PSS/limited leave to have been granted in error, without cancelling or curtailing it but merely allowing it to expire by effluxion of time, is compatible with the UK’s obligations under its EU Withdrawal Agreement (‘WA’).

However, a prior nationality law issue arises: the nature of the Home Office approach to the nationality laws of EU member states when deciding whether a person from one of the qualifies for PSS on the basis of UK residence. The Home Office approach on this issue seems to assume that the foreign legal systems of these states, mostly in the civil law tradition, work in the same way as the UK legal system. However, in the statutory provision these foreign legal systems make for transmission of nationality, they use their own techniques and work differently. As set out below, an examination of Italian citizenship law as compared to British citizenship law illustrates the point.

The UK’s EU Withdrawal Agreement and the Dual Nationality Issue

In order to benefit from rights of residence under the Citizens’ Rights provisions of the UK’s EU Withdrawal Agreement, a national or citizen of an EU member state (such a person being additionally an EU Citizen as of right under the EU Treaties) must have been residing in the UK at the end of the Brexit implementation period on 31 December 2020. Article 10(1)(a) WA provides:

Article 10

Personal scope

1.Without prejudice to Title III, this Part shall apply to the following persons:

(a) Union citizens [i.e., EU citizens] who exercised their right to reside in the United Kingdom in accordance with Union [i.e., EU] law before the end of the transition period [i.e., 11 pm of 31 December 2020] and continue to reside there thereafter;

…

In order to know who falls within the scope of the WA’s Citizens Rights provisions, so as to enjoy WA post-Brexit rights of residence in the UK, it is necessary to ascertain whether the person is an EU Citizen. In turn, in order to know the answer to whether the person is an EU Citizen, it is necessary to ascertain whether the person is a national of an EU member state (Article 2(c) WA). In the result, in the administration of its EU Settled Status scheme (EUSS) (by which the UK fulfils its WA commitments as regards Citizens’ Rights), the Home Office needs to ascertain first whether a person held the nationality of an EU member state at the end of the Brexit transition period. Often, this will be a straightforward process: all the Home Office need do is to peruse the relevant passport of the person concerned. However, for a person holding more than one citizenship the position may be more complicated.

Where prior to the end of the Brexit transition period a person enters and resides in the UK in reliance on a non-EU or so-called third country citizenship, say Argentinian citizenship, but after the end of the Brexit transition period seeks to rely on the newly-discovered fact that they hold also the nationality of an EU member state in order to secure WA rights of residence such as PSS, problems may arise. Such a person may never have possessed a passport issued by the EU state in question as proof that they hold that state’s nationality. Nor may they yet have any other proof that they possess the nationality of that EU state.

Such problems may arise where a person is born and raised in a non-EU state (a so-called third country) such as Argentina, possesses that country’s citizenship by virtue of birth there, has always travelled on a passport issued by that country, and now seeks to rely on another (EU member state) nationality that they discover they possess, having acquired that nationality by descent from a family member born in that EU member state.

In such a scenario, the person concerned turns to the competent authorities of the EU state concerned in order to obtain proof or confirmation that they possess its nationality. Having secured such documentary proof in the form of a declaration or other form of confirmation, they then present it to the Home Office to vindicate their position and secure or maintain their WA residence rights in the UK under the Home Office’s EUSS scheme, which provides for the grant of PSS and Settled Status to qualifying persons. It is in the Home Office’s consideration of such documents from the EU state concerned that problems arise. If the nationality of an EU state is considered to run only from the date of the citizenship declaration (made after the end of the Brexit transition period), an application for PSS or Settled Status will fail.

Such problems may arise also in a second scenario, where the Home Office initially had accepted as proof of citizenship of an EU state, a declaration of citizenship dated after the end of the Brexit transition period, and had treated the person as having been such a citizen before the end of that period and had granted PSS accordingly, only for it to change its mind later on and consider PSS to have been granted in error on the basis that the person was only such a citizen from the date of the declaration.

Proving Italian Citizenship where Acquired by Descent

In its simplest form, that is to say prior to amendments made in March 2025 (as to which see my post ‘The Contest over Italian Citizenship by Descent: Legislation, Constitutional Adjudication, and the Impact of EU Law’ ) Italian law provided for the acquisition of Italian citizenship by descent in Law No. 91 of 5 February 1992. That law stated that Italian citizenship was acquired at birth by any person whose father or mother was an Italian citizen:

Articolo. 1
1. È cittadino per nascita:
a) il figlio di padre o di madre cittadini;

…

Under that law, where a person is born outside Italy to a parent who is an Italian citizen, and where they had no proof of having acquired Italian citizenship by descent (jure sanguinis), they needed to apply to an Italian consulate to obtain confirmation that they held Italian citizenship. Such an application needed to be supported by proof of descent from an Italian citizen parent and be accompanied by relevant civil-status documentation.  As Italian citizenship may be transmitted by descent through many generations, recognition of Italian citizenship required proof of the continuity of Italian citizenship through the line of descent until the birth of the applicant.

In a given case, on production of the necessary evidence, the Italian authorities recognised that the person was an Italian citizen and adjusted its civil-status and population-register entries in line with that recognition. Thereafter, a now-recognised Italian citizen could obtain a declaration of Italian citizenship.

Critically, in the operation of Italian citizenship law, the person recognised as an Italian citizen is a person who had acquired that citizenship at birth (acquisto per nascita). All that had changed by the obtaining of a declaration of citizenship was that they were now recognised (riconosciuto) as having done so. The application was for recognition of Italian citizenship nor for the grant (conferimento) of that citizenship; the process being procedural only and not additionally substantive. The recognition of citizenship is a declaratory act (atto dichiarativo) rather than a constitutive act (atto costitutivo).

The Home Office error

The mistake being made by the Home Office is to treat Italian citizenship by descent as if it was only effective from the date of the Italian declaration of citizenship and not from the date of the person’s birth.

The Home Office error may have resulted from considering that the Italian law for applying for citizenship by descent operated as an application for a grant of citizenship to the second generation born outside the country in a similar way to the equivalent provision made in British nationality law as regards the acquisition of British citizenship in the second generation born outside the UK, see s. 3(2) and also s. 3(5) of the British Nationality Act 1981 (‘1981 Act’). For example, s. 3(5) provides (as material):

(5)A person born outside the United Kingdom and the qualifying territories shall be entitled, on an application for his registration as a British citizen made while he is a minor, to be registered as such a citizen if the following requirements are satisfied, namely—

(a)that at the time of that person’s birth his father or mother was a British citizen by descent; and

…

Under s. 3(5) the 1981 Act, the process of applying for registration as a British citizen requires supply of the necessary evidence of entitlement and leads to a grant of British citizenship that takes effect from the date of being granted. It does not declare the person always to have been a British citizen from birth. It operates differently to the provision made in Italian law.

In fact, the process of recognition under Italian law is similar in effect to the non-statutory provision made by the Home Office for its recognition of the automatic acquisition of British citizenship in the first generation born outside the UK (under s. 2(1)(a) of the 1981 Act), see the Form NS procedure.

Conclusion

The experience of UK-resident Italian citizens, who are Italian by descent, and whose possession of Italian citizenship has been denied by Home Office decision-makers when it asserts that their PSS has been granted in error to them is a salutary lesson for the Secretary of State. From a UK perspective, Italian citizenship law is foreign law and its meaning and operation is a question of fact to be ascertain by taking advice from experts skilled in Italian law. The Home Office policy and practice of making grant in error decisions as regards PSS raises issues of WA compliance. In the meeting the UK’s WA obligations, it also illustrates the need for the Home Office to proceed with caution when seeking to ascertain the letter of and the operation of the nationality laws of EU member states.