Asylum Pact 2.0: the EU amends the rules on ‘safe third countries’ and ‘safe countries of origin’

 

Steve Peers, Professor of Law, Royal Holloway University of London

Photo credit: Paula Reister, via Wikimedia Commons

Introduction

The EU has finally adopted two amendments to the EU’s asylum pact, entailing significantly more stringent rules as regards ‘safe countries’ of origin’ (adopted text here) and particularly ‘safe third countries’ (adopted text here).

This blog post summarises the new laws in their context, and then examines how much they impact upon the ability to claim asylum in the EU in practice – in particular the introduction of a ‘Rwanda clause’ in EU law, mirroring the last UK government’s attempt to designate that country as ‘safe’ even for asylum-seekers who had not travelled through it.

Background

The history of the two ‘safe countries’ concepts in EU law goes back initially to 1992, in the form of the London Resolutions of Member States’ ministers (see here and here). The concepts then appeared in the initial 2005 asylum procedures Directive, since replaced by the current 2013 asylum procedures Directive. The 2013 law will be replaced, as from 12 June 2026, by a new Regulation on asylum procedures, adopted in 2024 (the ‘2024 Regulation’, which I previously discussed here), part of the EU’s asylum pact. While the 2024 Regulation already makes the rules more stringent than in the 2013 Directive, the 2026 amendments now make those rules more restrictive again.

(For earlier blog posts on the 2026 amendments, see my analysis of the Commission proposal here, and my analysis of the Council and Parliament positions).

‘Safe countries of origin’

2024 Regulation

The 2024 asylum pact Regulation retains the definition of ‘safe country of origin’ from the 2013 Directive, referring to a list of human rights standards. As in the 2013 Directive, the rule can only apply if an asylum-seeker is a national of the country concerned, or is a stateless person formerly habitually resident there; and the principle remains a presumption, which the applicant can rebut in individual cases.

However, there are several changes. First of all, the rule will become mandatory for Member States, instead of an option. Secondly, it will be possible to designate a non-EU country of origin as ‘safe’ in part, either geographically (exceptions for ‘specific parts of its territory’) or for some groups of people (‘clearly identifiable categories’). Recent Court of Justice judgments have confirmed that such designations are not possible under the 2013 Directive (see here and here).

Thirdly, the 2024 Regulation makes it possible for the EU to adopt a common list of ‘safe countries of origin’, alongside Member States’ designation of such countries. Countries can be taken off the common EU list in the event of ‘significant changes’ there, initially by means of a delegated act adopted by the Commission, then via legislation. Member States cannot put the country back on their national list of ‘safe countries of origin’ while a delegated act suspending it from the list applies; and for two years after the country is dropped from the common EU list via legislation, Member States need the Commission’s approval to reinstate it on their national lists.

Fourth, in place of a general reference to speeding up consideration of ‘accelerated’ cases (including ‘safe country of origin’ cases) in the 2013 Directive, there will be a three-month deadline to decide on such cases, although if an authority considers the asylum application to be too complex, it can default to the usual six-month deadline to decide on the merits. (This general deadline has not been amended, although the possibilities of extending it have been partly curtailed).

Fifth, a new ground for accelerated procedures, overlapping with the ‘safe third country’ ground, has been added: Member States must also fast-track cases where the most recent annual recognition rate for asylum claims for the asylum-seekers’ nationality is below 20% EU-wide at first instance (ie before appeals), ‘unless the determining authority assesses that a significant change has occurred in the third country concerned since the publication of the relevant Eurostat data or that the applicant belongs to a category of persons for whom the proportion of 20 % or lower cannot be considered to be representative for their protection needs, taking into account, inter alia, the significant differences between first instance and final decisions.’ It is also mandatory, and subject to the same deadlines.

Sixth, while the ‘safe country of origin’ concept remains a ground for applying special border procedures, as under the 2013 Directive, those border procedures have been changed. They are now mandatory in principle (for a specific number of asylum-seekers per Member State) and can now last for up to twelve weeks (including both the administrative and judicial phase of the case), instead of four weeks. Presumably the Court of Justice case law, requiring that asylum-seekers be released from detention (if that was the only ground for it) and admitted on to the territory at the end of the border procedure deadline, still applies. Unaccompanied minors will be exempt from the revised border procedure, unless they are ‘national security’ or ‘public order’ risks.

Finally, it will be mandatory, instead of optional, for Member States to deny automatic suspensive effect to appeals in ‘safe country of origin’ cases, and several safeguards related to the lack of automatic suspensive effect are dropped. However, it will still be possible for asylum-seekers to ask a court for permission to stay during the appeal. On appeals, there is nothing to suggest that the case law of the Court of Justice on the 2013 Directive (Alace) has been overturned. In that case, the Court said that: a Member State’s designation of a ‘safe country of origin’ has to be subject to judicial review; the sources of information used for the designation must be provided to the applicant and to courts; and courts must be able to examine other sources of information.

2026 amendments

First of all, the new Regulation allows (as an option) the early application (ie before June 2026, from the day after publication of the new law in the EU Official Journal) of the possibility of partial designation of a country as a ‘safe country of origin’ (either geographically or for certain groups of asylum-seekers), as well as the new ‘20% recognition rate’ rule. In particular, this is intended to allow for the earlier application of the Italy/Albania arrangements on processing asylum-seekers on Albanian territory, which were in effect frustrated by the Court of Justice’s interpretation of the current Directive. Of course, other Member States might have a use for earlier application of the rules too.

Furthermore, the 2026 amendments similarly allow for early application of the partial designation of countries as ‘safe third countries’.

The early application of the 2024 version of these rules can also be applied at the borders, in the current version of the border procedure. This means that, among other things, the 2024 exclusion of most unaccompanied minors from the border procedure will not apply until the 2024 Regulation fully enters into force in June.

Secondly, the 2026 Regulation sets out a common EU list of ‘safe countries of origin’, as from the entry into force of the Pact: Bangladesh, Colombia, Egypt, India, Kosovo, Morocco and Tunisia, plus candidates for EU accession (Serbia, Montenegro, Albania, North Macedonia, Bosnia-Herzegovina, Turkey, Ukraine, Moldova and Georgia).

The accession candidates are, however, subject to special rules: they cannot be regarded as ‘safe’ if they have been subjected to EU foreign policy sanctions due to their actions ‘affecting fundamental rights and freedoms that are relevant to’ the definition of ‘safe country of origin’; or if their recognition rate is above 20% at first instance; or if there is a ‘serious threat to a civilian’s life or person by reason of indiscriminate violence’ in that country (which is an amended version of one of the grounds for ‘subsidiary protection’ in EU law; the requirement that the threat also be ‘individual’ does not apply in this context). The preamble draws the obvious conclusion that ‘Member States should not apply the concept of safe country of origin to applicants from a candidate country during the period in which the circumstances provided for by this Regulation persist.’ 

It appears that in place of the usual rules on suspending a country from the list, the accession candidates will be removed following a notification from the Commission to the Council, European Parliament and Member States. However, to trigger the ‘serious threat’ ground for removal from the list, the Commission will need approval from the Council first. Presumably the default voting rule of qualified majority in the Council will apply. According to the preamble, the Council’s role is necessary ‘in view of the potential implications for the external relations of the Union and the Member States’ in this scenario.

Several of these points (dropping the ‘individual’ criterion, qualifying the sanctions point, and creating a role for the Council) were changes from the Commission’s original proposal, made at the Council’s behest. The European Parliament’s proposed amendment (removing a country from the list if the temporary protection Directive applied – obviously referring to Ukraine) was not agreed, although the final version of the preamble says that the application (or termination) of temporary protection under that Directive should be taken into account when assessing whether a ‘serious threat’ exists. Moreover, the Parliament’s proposal to use delegated acts (ie the usual process) to remove candidate countries from the common list was not agreed either.

The Regulation also now provides for the possibility (again, at the Council’s behest) that a country on the common EU list can be de-listed in part, ie using the exceptions for parts of a country or groups of people which Member States can use.

Finally, at the behest of the Parliament, a clause in the preamble to the 2026 amendment appears to hint at limiting judicial review in individual cases:

[a ‘safe country of origin’] designation reflects the general situation in that country and is not affected by the individual circumstances, which may only be assessed for the purposes of determining whether the concept of safe country of origin should exceptionally not be applied in a specific case. Therefore, in the context of national judicial review, the detailed evidence regarding an applicant’s individual situation justifying the applicability of the concept of safe country of origin should be the main purpose of that assessment. In accordance with the Treaties, the Court of Justice of the European Union is competent to rule on any doubts on the validity of a designation of a third country as a safe country of origin at Union level.

This is slightly more equivocal than the EP’s proposed amendment on this point, which had read:

…national judicial review should examine the detailed evidence regarding an applicant’s individual situation justifying, in his or her case, the inapplicability of the concept of safe country of origin and not the designation as such.

‘Safe third countries’

2024 Regulation

The 2024 Regulation (before the 2026 amendments) makes a number of changes to the rules on this issue as compared to the 2013 Directive. First of all, it will be simpler to designate a country as a ‘safe third country’ in one respect: there need not be an opportunity to request and receive Refugee Convention refugee status there. Instead, if a non-EU country ‘has ratified and respects’ the Convention, within the limits of any reservations and limitations, that country ‘shall be considered to ensure effective protection’; but if has not ratified the Convention, or applies a geographical limit to it (ie Turkey), that country ‘only’ offers effective protection for people where, ‘as a minimum’, that country allows people to remain, offers subsistence, health care and education, and ‘effective protection remains available until a durable solution can be found’.  

Secondly, as with ‘safe countries of origin’, it will now be possible to regard a country as a ‘safe third country’ only partly, ie ‘with exceptions for specific parts of its territory or clearly identifiable categories of persons’. A country can even be a ‘safe third country’ for an individual applicant.

Thirdly, there will be new safeguards for unaccompanied minors: a ‘best interests’ test and a prior assurance that the non-EU country will take them in charge and give them immediate access to effective protection.

Fourth, there will now be a two-month deadline for deciding ‘safe third country’ applications (and most other inadmissible applications), with a possible extension of up to two months in certain circumstances.

Fifth, there will also now be a new prospect of a common EU list, which works the same way as the possible common list of ‘safe countries of origin’ (and removals from it) described above.

Sixth, the revised border procedure in the Regulation (described above), will also apply to ‘safe third country’ cases.

Several elements have not changed, though. It is still necessary that, in the country concerned, there is: no threat to [life or liberty’ on any of the grounds set out in the Refugee Convention; ‘no risk of serious harm’ as defined in EU law as regards subsidiary protection; respect of the non-refoulement principle in the Refugee Convention (ie not sending the asylum seeker to an unsafe country); and respect for ‘the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law’.

Also, the principle will still only be optional for Member States; and the rule still cannot be applied unless the asylum-seeker will be admitted to the country concerned. Also, the rule can only apply if the asylum-seeker has a ‘connection’ with the other country, ‘on the basis of which it would be reasonable’ for the asylum-seeker to go there; it must still be possible for the asylum-seeker to challenge the alleged safety of the country concerned for them, as well as their supposed connection with it. Finally, as before, appeals in ‘safe third country’ cases will still have automatic suspensive effect.

2026 amendments

First and foremost, the new Regulation (which will apply from June, along with the rest of the asylum pact) has dropped the requirement that the ‘safe third country’ principle can only be applied in the event of a ‘connection’ to the supposedly ‘safe’ third country. There are further explanations of that principle in the preamble:  

Member States should, while fully respecting the parameters set out in the case law of the Court of Justice of the European Union, be able to apply the concept of safe third country on the basis of a connection as defined in conformity with national law or practice, in so far as specifically defined therein. The connection between the applicant and the third country could be considered established in particular where members of the applicant’s family are present in that third country, where the applicant has settled or stayed in that third country, or where the applicant has linguistic, cultural or other similar ties with that third country.

It will now also be possible to apply the ‘safe third country’ principle in two other cases. First, it can be applied where the asylum seeker had transited through that country on the way to the EU, as further explained in the preamble:

…transit through a third country could include a situation where an applicant has passed through or stayed on the territory of a third country on the way to the Union, or where the applicant has been at the border or in a transit zone of a third country, where that applicant has had the possibility to request effective protection from the authorities of the third country concerned.

Secondly, the ‘safe third country’ principle can now apply to a Rwanda-type deal with a country that the asylum-seeker had neither a connection with nor transited through: ‘there is an agreement or an arrangement [with the non-EU country concerned]…requiring the examination of the merits of any requests for effective protection made in the third country concerned by applicants subject to that agreement or arrangement’.

Such an agreement or arrangement can either be negotiated by the EU or one or more Member States; the Member States might even negotiate it alongside non-EU countries (say the UK, or the US?). There are detailed rules on how any EU negotiations relate to Member State treaties on the issue.

However, the new ‘Rwanda’ criterion will not apply to unaccompanied minors, although the Parliament had argued that it should apply to children who were security threats. The new transit criterion will apply to unaccompanied minors though, although the current safeguards for them in ‘connection’ cases (best interests of the child, certain assurances from the country concerned) in the 2024 Regulation will apply to ‘transit’ cases too. The preamble also refers to considering the family unity principle.

Finally, the new Regulation has altered the rules on appeals, so that there will no longer be automatic suspensive effect in ‘safe third country’ appeals, except for unaccompanied minors subject to the border procedure. The amendments also (at the Council’s behest) drop automatic suspensive effect in cases where the asylum seeker has international protection from another Member State, even though Court of Justice case law provides for the possibility of applying for international protection in another Member State to avoid harsh conditions in the Member State which granted such protection, where the latter Member State treats the beneficiaries of international protection so badly that it amounts to a breach of the EU Charter of Fundamental Rights. Nevertheless, it will still be possible to request a court to grant suspensive effect.

Other features of the ‘safe third country’ principle have not changed: it will remain optional for Member States, and the rules will not change as regards criteria defining the ‘safety’ of a country as such, the applicable deadlines, the related rules on the border procedure, or the requirement that Member States must consider the merits if the third country concerned refuses to admit the asylum seeker. Nor does it use the power to adopt a common EU list of ‘safe third countries’.

 

Assessment

The ‘safe country of origin’ amendments in particular are partly aimed at overturning case law of the CJEU, not only as regards allowing geographical and group exceptions from the principle, but also (on a more lasting basis, given that those exceptions would be allowed from June anyway) as regards limiting national judicial review of the national lists of such countries.

However, this apparent attempt to limit judicial review would, if the provision is interpreted as such, breach the EU Charter of Fundamental Rights. The Court of Justice’s Alace judgment refers several times to Article 47 of the Charter (the right to an effective remedy and a fair trial), when ruling that it must be possible to challenge the designation of countries as ‘safe countries of origin’ (underlining and bold text added):

…it should be noted that the obligation imposed on Member States by Article 46(1) of Directive 2013/32 to provide for a right to an effective judicial remedy for applicants for international protection, the scope of which is defined in Article 46(3) of that directive, corresponds to the right to an effective remedy guaranteed by Article 47 of the Charter… [para 53]

…although, in the absence of EU rules on the matter, it is for the national legal order, in accordance with the principle of procedural autonomy of Member States and subject to the observance of the principles of equivalence and effectiveness, to lay down the detailed procedural rules governing remedies for ensuring that individual rights derived from the EU legal order are safeguarded, Member States nevertheless have the responsibility to ensure observance in every case of the right to effective judicial protection of those rights as guaranteed by Article 47 of the Charter, the scope of that right being clarified, in the present case, by Article 46 of Directive 2013/32… [para 64]

…the choice, by a Member State, of the competent authority and the legal instrument effecting the designation, at national level, of safe countries of origin, in accordance with Articles 36 and 37 of Directive 2013/32, cannot affect its obligations under that directive. It is thus for each Member State, inter alia, to ensure respect for the right to an effective judicial remedy which Article 46(1) of that directive confers on applicants for international protection against decisions taken on their applications, the scope of which is defined by Article 46(3) of that directive. [para 65]

In that regard, the Court has held that, in accordance with Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, where an action is brought before a national court or tribunal against a decision taken on an application for international protection – examined in the context of the special scheme applicable to applications lodged by applicants from third countries designated, in accordance with Article 37 of that directive, as safe countries of origin – that court or tribunal must, as part of the full and ex nunc examination required by Article 46(3) of that directive, raise, on the basis of the information in the file and the information brought to its attention during the proceedings before it, a failure to have regard to the material conditions for such designation, set out in Annex I to that directive… [para 66]

Consequently, and having regard to the case-law referred to in paragraphs 62 and 63 above, the fact that a Member State has chosen to designate safe countries of origin by means of a legislative act cannot be such as to preclude the national court or tribunal seised in the circumstances set out in the preceding paragraph of the present judgment from reviewing, even if only indirectly, whether the designation of the third country in question as a safe country of origin complies with the material conditions for such a designation, set out in Annex I to Directive 2013/32. [para 67]

In the light of the foregoing, the answer to the first questions is that Articles 36 and 37 and Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as not precluding a Member State from designating third countries as safe countries of origin by means of a legislative act, provided that that designation can be subject to judicial review as regards compliance with the material conditions for such a designation, set out in Annex I to that directive, by any national court or tribunal hearing an action brought against a decision taken on an application for international protection, which had been examined under the special scheme applicable to applications lodged by applicants who are from third countries designated as safe countries of origin. [para 68]

As the Charter has the same legal value as the Treaties (Article 6 TEU), any EU law adopted in breach of it would be invalid.

In any event, the litigation has not stood still. There are further cases referred from the Italian courts as regards aspects of the Italy/Albania arrangements, including Sedrata on detention issues, and Comeri (fast-tracked by the Court) on the external relations aspects of such arrangements. These pending cases may limit the possible application of the Italy/Albania agreement in the meantime, although it remains to be seen whether the changes to the law (including the 2024 version of the reception directive), might be relevant to the issues in these disputes post June. Of course, further legal challenges can be expected as the 2024 Regulation is partly rolled out early on the basis of the 2026 amendments, and applied fully from June.

The removal of automatic suspensive effect from ‘safe third country’ cases, while widening the scope of such cases in principle, may mean that it is harder to obtain an effective remedy in such cases – although the possibility of requesting suspensive effect from the national court will now become crucial. The same will be true of cases where a Member State is allegedly breaching the Charter rights of recognised refugees – an issue separate from ‘safe third (non-EU) countries’ where the legislators decided to carry out a ‘drive-by hit’ on appeal rights nonetheless.

As for the ‘Rwanda clause’ itself, at first sight it leaves open the possibility that (apart from unaccompanied minors) literally everyone who applies for asylum in the EU could be removed to such a country. In practice, though, this depends upon there being enough countries willing to admit the asylum-seekers. The EU’s current and planned leverage (via the visa code, recent visa waiver suspension rules, agreed amendments to trade policy laws, proposed changes to development aid and planned further changes to the visa code) relates to countries taking back their own citizens and those who transited through them. While the transit point is relevant to the widening of the ‘safe third country’ concept to include transit states, it does not cover the introduction of the Rwanda clause.

Even for those who are subject to the wider application of the ‘safe third country’ principle after the 2026 amendments, it will still be necessary to show that they will be admitted to the country concerned, and still possible to argue that the country is ‘unsafe’ in their particular situation. Moreover, it could be argued that – in parallel with the CJEU case law on challenging the listing of ‘safe countries of origin’, quoted from above – the EU Charter of Rights necessarily confers the possibility of challenging the listing of the country in question itself, comparable to the UK Supreme Court ruling that Rwanda was ‘unsafe’ as such. And since the EU Charter has a higher legal status than EU legislation, it would not be possible for the EU or its Member States to overturn such a ruling merely by passing legislation – unlike the ‘Safety’ of Rwanda Act passed under the previous UK government.

 

 

Asylum Pact 2.0: the EU moves towards more stringent rules on ‘safe third countries’ and ‘safe countries of origin’

 

Steve Peers, Professor of Law, Royal Holloway University of London

Photo credit: Steve F, via Wikimedia Commons

 

Introduction

The EU’s asylum pact, agreed in 2024, is mostly not fully in force yet; it will largely apply from 12 June 2026. But even before that date, the EU is planning to make its rules more stringent – and even to apply some of them in advance. The prospect of these planned changes moved closer recently, as both the European Parliament and the EU Council, ie Member States’ ministers firmed up their negotiation positions on two separate proposals, and may negotiate an agreed final text of them both in the near future.

This blog post summarises the proposals in their context, and then examines the proposed amendments coming from the EP and the Council, concluding with an assessment of the main issues arising from the negotiations – including the prospect of a ‘Rwanda clause’ in EU law, mirroring the last UK government’s attempt to designate that country as ‘safe’ even for asylum-seekers who had not travelled through it, and the European Parliament’s suggestion to curtail judicial review in a way that would obviously breach the EU’s Charter of Fundamental Rights.

 

Background

The EU asylum pact includes a Regulation on asylum procedures (which I previously discussed here), replacing the current Directive on asylum procedures, dating from 2013, which sets out detailed rules on the processing of asylum applications. These include rules on both supposedly ‘safe countries of origin’ (countries which asylum-seekers originate from) and supposedly ‘safe third countries’ (countries other than the countries of origin, which asylum-seekers ‘should’ apply for asylum in instead).

Variations of these two concepts have existed in EU law for a long time, dating back initially to 1992 in the form of the London Resolutions of Member States’ ministers (see here and here). The concepts then appeared in the initial 2005 asylum procedures Directive, since replaced by the 2013 version of the rules. Although the asylum pact Regulation adopted in 2024 made these rules more restrictive for asylum-seekers, this was deemed insufficient, hence the move to change the rules in the pact already.

 

‘Safe countries of origin’

Current rules

The 2013 rules provide that a country can be considered a ‘safe country of origin’ for non-EU asylum seekers if it meets specified human rights standards, taking account of country of origin information from various sources such as the UNHCR and EU asylum agency. Use of this rule is currently an option for Member States. The rule can only apply if an asylum-seeker is a national of the country concerned, or is a stateless person formerly habitually resident there. Member States must lay down further rules in national law if they use the concept. They must also regularly review the list of countries concerned and inform the Commission of the list.

Unlike the 2005 rules, it is not possible to define a country as safe only in part, either geographically or for selected groups of people, as the Court of Justice has recently confirmed (see here and here). These judgments put a spanner in the works – at least temporarily – of the Italy/Albania arrangements, under which Italy planned to remove to Albania select groups of asylum-seekers who came from a ‘safe country of origin’, which was designated as ‘safe’ for only some groups of people; the asylum-seekers were to remain in Albania while Italy processed their application. In the latter judgment (Alace), the Court of Justice also said that: a Member State had a choice of routes to designate a ‘safe country of origin’ in national law, but its designation must be subject to judicial review; the sources of information used for the designation must be provided to the applicant and to courts; and courts must be able to examine other sources of information.

Defining a non-EU country of origin as ‘safe’ creates a presumption, which can be rebutted by the asylum-seeker if they can show ‘any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her qualification as a beneficiary of international protection’. It is also a ground for fast-tracking the consideration of asylum applications, although the current rule does not specify a time limit to this end (just that it should be ‘reasonable’, and can be exceeded if necessary to examine the application properly). In comparison, the time limit for ‘standard’ asylum applications in the current law is six months (although there are several grounds for extending that deadline).

The ‘safe country of origin’ rule is also one ground for applying a fast-track border procedure to asylum-seekers’ applications; again, such procedures are currently optional. Here there is a specific deadline, namely to conclude the process within four weeks, otherwise the asylum-seeker must be allowed on to the territory, and (as confirmed by Court of Justice case law) released from detention if that was the only ground for it. Finally, Member States may deny suspensive effect appeals in ‘safe country of origin’ cases, although asylum-seekers must have an opportunity to request a court to grant such suspensive effect.

2024 Regulation

Under the 2024 asylum pact Regulation, applicable (as things now stand) to asylum applications made after 12 June 2026, the ‘safe country of origin’ rules become mandatory for Member States. (Most, but not all, Member States were applying them already) The basic definitions of human rights standards in the country of origin remain, as do the rules on the sources of data to be considered. But under the new rules, it will be possible to designate a non-EU country of origin as ‘safe’ in part, either geographically (exceptions for ‘specific parts of its territory’) or for some groups of people (‘clearly identifiable categories’). Conversely, there is nothing to suggest that the other aspects of the Alace judgment (on effective judicial review of designations of ‘safe third countries’) cease to apply.

One new aspect of the rules is that it is possible for the EU to adopt its own common list of ‘safe countries of origin’, via the ordinary legislative procedure. This is accompanied by rules on dropping countries from the list in the event of ‘significant changes’ there, initially by means of a delegated act adopted by the Commission, then via legislation. Member States cannot put the country back on their national list of ‘safe countries of origin’ while a delegated act suspending it from the list applies; for two years after the country is dropped from the common EU list via legislation, Member States need the Commission’s approval to reinstate it on their national lists.

A similar new ground for accelerated procedures has been added: Member States must also fast-track cases where the most recent annual recognition rate for asylum claims for the asylum-seekers’ nationality is below 20% EU-wide at first instance (ie before appeals), ‘unless the determining authority assesses that a significant change has occurred in the third country concerned since the publication of the relevant Eurostat data or that the applicant belongs to a category of persons for whom the proportion of 20 % or lower cannot be considered to be representative for their protection needs, taking into account, inter alia, the significant differences between first instance and final decisions.’

There will now be a specific three-month deadline to decide on accelerated cases, although an authority can decide to consider the asylum application on the merits if the case is too complex. (The general deadline to decide on applications remains six months; the possibilities of extending that deadline have been partly curtailed).

‘Safe country of origin’ remains a ground (alongside now the ‘20% recognition rate’ rule) for considering applications in a border procedure, but that procedure has been overhauled: it is now mandatory for Member States for a certain number of asylum-seekers, provides for a longer period of application (12 weeks, now including appeals), and is subject to more exceptions. In particular, unaccompanied minors can no longer be subjected to it, except where they are ‘national security’ or ‘public order’ risks.

As for appeals in ‘safe country of origin’ cases, it is now the standard rule that they do not have suspensive effect (except for unaccompanied minors in the context of the border procedure), although as before it must be possible for asylum seekers to request suspensive effect from the courts. Some additional safeguards that currently apply to the lack of suspensive effect in border procedure cases have been dropped.

Commission proposal

The Commission’s proposal, dating from April 2025 (see my previous comments here), would first of all allow (as an option) the early application of the revised rules on ‘safe country of origin’, as well as the new ‘20% recognition rate’ rule, in order to provide for the earlier application of the Italy/Albania arrangements; other Member States might have a use for earlier application of the rules too. In fact it would also allow for early application of the partial designation of countries as ‘safe third countries’ too. It will also allow application of the 2024 version of these special rules in the current version of the border procedure (among other things, the 2024 exclusion of most unaccompanied minors from the border procedure will not apply).

Secondly, it would set out a common EU list of ‘safe countries of origin’, as from the entry into force of the Pact: seven named countries (Bangladesh, Colombia, Egypt, India, Kosovo, Morocco and Tunisia) plus candidates for EU accession (Serbia, Montenegro, Albania, North Macedonia, Bosnia-Herzegovina, Turkey, Ukraine, Moldova and Georgia). The accession candidates would be subject to special rules: their listing would switch off if they have been subjected to EU foreign policy sanctions ‘adopted in view of the country’s actions’, or if their recognition rate is above 20% at first instance, or if there is a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence’ in that country (which is one of the grounds for ‘subsidiary protection’ in EU law). It is not certain whether the usual rules on suspending a country from the list also apply to accession candidates, given that a special new category has been created for them. The proposal would list all these countries as a whole, ie not using any of the exceptions for parts of a country or groups of people which the Commission argued were so essential to provide for Member States.

Council position

The recently agreed Council position has taken over most of the Commission proposal. While the Council accepts the early application of parts of the Regulation and the common EU list of ‘safe countries of origin’, including the accession candidate countries (subject to a special rule), it would make a few amendments. (A statement by Hungary objects to having a special rule for accession candidates, preferring to list them automatically without any conditions – although listing them automatically is a special rule in itself)

First of all, the Council position would amend the proposal so that it would be possible to suspend a country partly from a common EU list of ‘safe third country’ or ‘safe country of origin’, on the same basis that Member States can designate a country only partly, ie geographically or as regards groups of people. If a country is partly removed from the common EU list by EU legislation, Member States would not need the Commission’s approval to reinstate that country partly to a national list.  

Secondly, the Council would alter the special conditions applicable to accession countries. The ‘subsidiary protection’ ground for disapplying the status would no longer refer to an ‘individual’ threat, presumably because an assessment is being made of a country as a whole in this context. Also, the foreign policy sanctions ground for disapplying the status would only apply to that country’s actions ‘affecting fundamental rights and freedoms that are relevant for the criteria of designation of a third country as a safe country of origin’ set out in the Regulation. The Council also sets out a procedure for applying these exceptions: the Commission must inform Member States and the Council of the change in status. However, as regards the (quasi-)‘subsidiary protection’ exception, the Commission needs the prior approval of the Council (presumably by qualified majority) before informing Member States of that change. According to the preamble, this is necessary in light ‘of the potential implications for the external relations of the Union and the Member States’ in this scenario.

European Parliament position

The European Parliament’s position (agreed by a committee, and to be reviewed in the full Parliament shortly) is similar to the Council’s. On the first point, the EP agrees that it would, in effect, be possible for countries on the common EU list to be suspended only partly, although it goes into less detail than the Council does.

On the second point, the EP retains the ‘individual’ threat aspect of removing an accession candidate from the common EU ‘safe third country’ list, but also adds that a candidate country should be automatically removed from the list on this ground if the EU’s temporary protection Directive has been applied to that country. This obviously refers solely to Ukraine at present (until March 2027, as things stand). The EP would amend the foreign policy sanctions ground for removal from the list in the same way as the Council.

As for the process, the EP wants the Commission to remove candidate countries from the list by means of a delegated act, rather than by informing the Council and getting the Council’s approval in some cases – although the Council has a role anyway in scrutiny of delegated acts (and in invoking and extending the application of the temporary protection Directive). Using a delegated act – which is, after all, already the usual process set out in the Regulation for suspending a country from the common list – would also give the EP a role in the suspension process.

The EP would also make some amendments to the preamble. One of them, indicating that assessments of the safety of non-EU countries should be ‘accessible’, reflects the Alace judgment. But another amendment to the preamble plainly conflicts with that judgment, purporting that:

…national judicial review should examine the detailed evidence regarding an applicant’s individual situation justifying, in his or her case, the inapplicability of the concept of safe country of origin and not the designation as such.

 

‘Safe third countries’

Current rules

The 2013 rules (again, an option for Member States) provide that a non-EU country can be considered a ‘safe third country’ (the position of EU countries and the associated countries of Switzerland, Norway, Iceland and Liechtenstein is a separate issue) if several criteria are satisfied: no threat to [life or liberty’ on any of the grounds set out in the Refugee Convention; ‘no risk of serious harm’ as defined in EU law as regards subsidiary protection; respect of the non-refoulement principle in the Refugee Convention (ie not sending the asylum seeker to an unsafe country); respect for ‘the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law’; and the possibility ‘to request refugee status and, if found to be a refugee, to receive protection in accordance with’ the Refugee Convention.  

The ‘safe third country’ principle must be ‘subject to rules laid down in national law, including’: rules requiring a ‘connection’ with the other country, ‘on the basis of which it would be reasonable’ for the asylum-seeker to go there; rules on ‘methodology’ concerning the application of the principle to particular countries or applicants; and rules permitting the asylum-seeker to challenge the alleged safety of the country concerned for them, as well as their supposed connection with it.

‘Safe third country’ applications may be considered inadmissible, ie not considered on the merits; but if the supposedly safe country does not permit the person concerned to enter its territory, the Member State must fully consider the merits of their claim. This rule has been confirmed by the Court of Justice, in a case where Greece was breaching it by ruling thousands of claims inadmissible because Turkey was ‘safe’, even though Turkey was no longer readmitting any of the asylum seekers concerned.

A special inadmissibility interview is held, rather than an interview focussed on the well-foundedness of the asylum claim as such. The Directive hints that Member States may have separate time limits for such cases.

As with ‘safe countries of origin’, the ‘safe third country’ rule is another ground to apply a special borders procedure (if Member States opt to do so). Conversely, the suspensive effect of an appeal cannot be denied in ‘safe third country’ cases.

2024 Regulation

The 2024 rules – which remain an option for Member States – are now subject to a definition of ‘effective protection’, in place of an opportunity to request and receive Refugee Convention refugee status: if a non-EU country ‘has ratified and respects’ the Convention, within the limits of any reservations and limitations, that country ‘shall be considered to ensure effective protection’; but if has not ratified the Convention, or applies a geographical limit to it (ie Turkey), that country ‘only’ offers effective protection for people where, ‘as a minimum’, that country allows people to remain, offers subsistence, health care and education, and ‘effective protection remains available until a durable solution can be found’. So even countries which have not ratified the Convention at all can be regarded as offering ‘effective protection’, if they meet these other conditions.

As with ‘safe countries of origin’, it is now possible to regard a country as a ‘safe third country’ only partly, ie ‘with exceptions for specific parts of its territory or clearly identifiable categories of persons’. A country can even be a ‘safe third country’ for an individual applicant. There is a special safeguard for unaccompanied minors:

A third country may only be considered to be a safe third country for an unaccompanied minor where it is not contrary to his or her best interests and where the authorities of Member States have first received from the authorities of the third country in question the assurance that the unaccompanied minor will be taken in charge by those authorities and that he or she will immediately have access to effective protection as defined in [the Regulation].

The law still rules out holding ‘safe third country’ applications to be inadmissible if the other country refuses to admit or readmit the person concerned on to its territory.

There will now be a two-month deadline for deciding ‘safe third country’ applications (and most other inadmissible applications), with a possible extension of up to two months in certain circumstances.

The revised border procedure in the Regulation (described above), also applies to ‘safe third country’ cases. There is also now a new prospect of a common EU list, which works the same way as the possible common list of ‘safe countries of origin’ (and removals from it) described above. Finally, appeals in ‘safe third country’ cases still have automatic suspensive effect.

Commission proposal

The Commission’s proposal, dating from May 2025 (see my previous comments here), would alter the rules as regards the asylum-seeker’s links to the country concerned, so that a ‘connection’ to that country would no longer be the only ground for applying the principle. It could also apply where either the asylum seeker had transited through that country, or a Rwanda-type deal existed with a country that the asylum had neither a connection with nor transited through: ‘there is an agreement or an arrangement with the third country concerned requiring the examination of the merits of the requests for effective protection made by applicants subject to that agreement or arrangement’. However, the latter new criterion would not apply to unaccompanied minors, and in any case there would be an obligation to consider the best interest of the child. Member States would have to inform the Commission and other Member States in advance of concluding such agreements or arrangements.

Secondly, the Commission proposal would alter the rules on appeals, so that there would no longer be automatic suspensive effect in ‘safe third country’ appeals, except for unaccompanied minors subject to the border procedure. Nevertheless, it would be possible to request a court to grant suspensive effect.

The ‘safe third country’ principle would remain optional for Member States, and the Commission does not propose to change the criteria defining the ‘safety’ of a country as such, the applicable deadlines, the related rules on the border procedure, the current safeguard for unaccompanied minors or the requirement that Member States must consider the merits if the third country concerned refuses to admit the asylum seeker. Nor does it propose to use the power to adopt a common EU list of ‘safe third countries’.

Council position

The Council’s position would take on board the Commission’s main points, clarifying that the transit in question must be ‘on the way to the Union’, and providing for the EU, not only Member States, to enter into negotiations with non-EU countries which the asylum seekers have no link at all to. New provisions would require the Commission, when negotiating such agreements or arrangements, to take Member States’ existing agreements or arrangements into account, including the potential impact of EU agreements or arrangements on cooperation of the non-EU countries with certain Member States. But an agreement or arrangements with the EU, once concluded, will take priority over agreements or arrangements with Member States, where they are incompatible.

Member States negotiating such agreements or arrangements must inform other Member States and the Commission of them prior to their entry into force or provisional application, and also inform other Member States and the Commission of any amendments or termination. A notification should come at an (unspecified) earlier point where the agreements or arrangements are with a non-EU country that borders on a Member State (ie Germany sending asylum seekers to Turkey may have a particular impact on Greece). As an option (according to the preamble), Member States could consult the Commission at an earlier stage, with a view to considering the compatibility of the draft agreement or arrangement with EU law. The Council version would also allow for different ways to inform a non-EU country that the applications of asylum-seekers being sent there have not been considered on the merits.

This negotiation position maintains the exclusion of unaccompanied minors from the ‘Rwanda clause’. On the other hand, it would drop the general reference to the rights of the child that the Commission wanted to insert in the main text, although the preamble would retain a reference to this principle, adding that ‘Member States should also take due account of the principle of family unity when applying the safe third country concept’. The safeguard already in the 2024 Regulation for unaccompanied minors, described above, would not be amended by either the Commission or the Council.

The Council’s version would also drop automatic suspensive effect in cases where the asylum seeker has international protection from another Member State. Greece objects to this. It should be noted that the Court of Justice case law provides for the possibility of applying for international protection in another Member State to avoid harsh conditions in the Member State which granted such protection, where the latter Member State treats the beneficiaries of international protection so badly that it amounts to a breach of the EU Charter of Fundamental Rights.

Finally, the Council version tries to clarify some elements of the ‘safe third country’ rule in the preamble. As regards the concept of a ‘connection’ (which will, of course, matter less than it does at present, given the two new categories of ‘safe third countries’):

While taking fully into consideration the parameters outlined in the case law of the Court of Justice of the European Union, Member States should be able to apply the safe third country concept on the basis of a connection as defined in conformity with national law or practice, in so far as specifically defined therein. The connection between the applicant and the third country could be considered established in particular where members of the applicant’s family are present in that country, where the applicant has settled or stayed in that country, or where the applicant has linguistic, cultural or other similar ties with that country.

Transit through a non-EU country is also clarified:

transit through a third country could include the situation where an applicant has passed through, or stayed on, the territory of a third country on the way to the Union, or where the applicant has been at the border or in a transit zone of a third country, where he or she has had the possibility to request effective protection with the authorities of that country

As for the Rwanda-style arrangements, they ‘could include a variety of case-processing modalities, such as simplified, group or prima facie procedures’. This wording seems to imply a potentially dismissive attitude to the non-EU country considering the merits of applications.

European Parliament position

The European Parliament’s position (again agreed by a committee, and to be reviewed in the full Parliament shortly) is similar to the Council’s. In fact, the EP would only make two changes to the main text of the Commission proposal. First, like the Council, the EP would also provide for the possibility of the EU, not only individual Member States, negotiating Rwanda arrangements, although it goes into less detail than the Council version about the mechanics of this. (Its proposed changes to the preamble would, however, require Member States to inform about bilateral talks at an earlier point, and inform the EP too; and the arrangements would have to be in writing).

Second, the EP version would subject unaccompanied minors to the Rwanda clause if there are ‘reasonable grounds’ to believe that they are a security or public order threat ‘under national law’. While the Court of Justice has usually interpreted security exceptions from asylum law narrowly, the reference to national law may be intended to give Member States more leeway. The EP would, however, retain the general reference to the ‘best interests of the child’ being added to the main text.

The EP also suggests changes to the preamble to the proposal, some of which align broadly with the Council’s. On the ‘connection’ with the ‘safe third country’, the EP states that:

The connection between the applicant and the safe third country could be considered established in particular where members of the applicant’s family are present in that country or where the applicant has settled or stayed in that country, or where the applicant has other links with that country, such as the same or similar language, or other economic, cultural, religious, or geographical links.

Unlike the Council’s version, there are, however, no broad references to national law in this context.

The EP version supports automatic suspensive effect being removed from most ‘safe third country’ appeals, although unlike the Council, it would not also remove automatic suspensive effect from appeals made by those who have international protection already from another Member State.

 

Assessment

First and foremost, one of the amendments proposed by the EP would be plainly unlawful, as an obvious breach of the EU Charter of Fundamental Rights. The Court of Justice’s Alace judgment refers several times to Article 47 of the Charter (the right to an effective remedy and a fair trial), when ruling that it must be possible to challenge the designation of countries as ‘safe countries of origin’ (underlining and bold text added):

…it should be noted that the obligation imposed on Member States by Article 46(1) of Directive 2013/32 to provide for a right to an effective judicial remedy for applicants for international protection, the scope of which is defined in Article 46(3) of that directive, corresponds to the right to an effective remedy guaranteed by Article 47 of the Charter… [para 53]

…although, in the absence of EU rules on the matter, it is for the national legal order, in accordance with the principle of procedural autonomy of Member States and subject to the observance of the principles of equivalence and effectiveness, to lay down the detailed procedural rules governing remedies for ensuring that individual rights derived from the EU legal order are safeguarded, Member States nevertheless have the responsibility to ensure observance in every case of the right to effective judicial protection of those rights as guaranteed by Article 47 of the Charter, the scope of that right being clarified, in the present case, by Article 46 of Directive 2013/32… [para 64]

…the choice, by a Member State, of the competent authority and the legal instrument effecting the designation, at national level, of safe countries of origin, in accordance with Articles 36 and 37 of Directive 2013/32, cannot affect its obligations under that directive. It is thus for each Member State, inter alia, to ensure respect for the right to an effective judicial remedy which Article 46(1) of that directive confers on applicants for international protection against decisions taken on their applications, the scope of which is defined by Article 46(3) of that directive. [para 65]

In that regard, the Court has held that, in accordance with Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, where an action is brought before a national court or tribunal against a decision taken on an application for international protection – examined in the context of the special scheme applicable to applications lodged by applicants from third countries designated, in accordance with Article 37 of that directive, as safe countries of origin – that court or tribunal must, as part of the full and ex nunc examination required by Article 46(3) of that directive, raise, on the basis of the information in the file and the information brought to its attention during the proceedings before it, a failure to have regard to the material conditions for such designation, set out in Annex I to that directive… [para 66]

Consequently, and having regard to the case-law referred to in paragraphs 62 and 63 above, the fact that a Member State has chosen to designate safe countries of origin by means of a legislative act cannot be such as to preclude the national court or tribunal seised in the circumstances set out in the preceding paragraph of the present judgment from reviewing, even if only indirectly, whether the designation of the third country in question as a safe country of origin complies with the material conditions for such a designation, set out in Annex I to Directive 2013/32. [para 67]

In the light of the foregoing, the answer to the first questions is that Articles 36 and 37 and Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as not precluding a Member State from designating third countries as safe countries of origin by means of a legislative act, provided that that designation can be subject to judicial review as regards compliance with the material conditions for such a designation, set out in Annex I to that directive, by any national court or tribunal hearing an action brought against a decision taken on an application for international protection, which had been examined under the special scheme applicable to applications lodged by applicants who are from third countries designated as safe countries of origin. [para 68]

As the Charter has the same legal value as the Treaties (Article 6 TEU), any EU law adopted in breach of it would be invalid.

The EP majority has also not thought this amendment through. It is not reflected in the main text of the Regulation; and it is unclear if the amendment is somehow intended to prevent a review of the validity of a designation on the common EU list too. But Article 267 TFEU provides that a national court can ask the Court of Justice about the validity of EU legislation; if the EP amendment is intended as an attempt to preclude that, then it would be unlawful for a second reason.

Otherwise, as discussed already, there is not must difference between the EP and Council positions on either proposal. Traditionally the EP has taken a significantly more liberal view than the Council on asylum issues, but now the two are broadly in sync (and both in a more restrictive direction than in the past), with the EP even more restrictive than the Council on some points, although the Council is more restrictive than the EP on some points too.

On the ‘safe country of origin’ proposal, the EP’s position on the definitions and process regarding candidate countries is more convincing: it is logical that applying the temporary protection Directive should lead to an automatic exclusion from the common list of ‘safe countries of origin’, and it would make sense to follow the usual delegated acts process for suspending a country from the list, rather than an ad hoc intergovernmental process that only gives a role to the Council (there’s history here: the Court of Justice previously ruled against the Council’s botched attempt at an ad hoc intergovernmental process as regards the very same issue).

As regards the ‘safe third country’ proposal, the Council’s attempt to extend the removal of automatic suspensive effect is an unprincipled reach into another area of EU asylum law, and would in any event remove an essential feature of an effective remedy as regards potential breaches of Charter rights. But the removal of automatic suspensive effective from ‘safe third country’ cases is also problematic, especially in light of the extremely broad definition of the concept that would follow from the proposals.

The introduction of a ‘Rwanda clause’ in EU asylum law undercuts the traditional argument that asylum-seekers ‘should have’ applied in another country. Nevertheless, this rationale even appears in the Council’s press release:

The safe third country concept allows EU member states to reject an asylum application as inadmissible (i.e. without examining its substance) when asylum seekers could have sought and, if eligible, received international protection in a non-EU country that is considered safe for them.

Frankly, this is untruthful. It is not serious to suggest that an asylum-seeker who made their way from Syria, Eritrea or Afghanistan to the European Union ‘could have sought’ international protection in Rwanda, a country many hundreds of miles from any route they would have taken. ‘Could have sought’ is not a rule in the legal text either. Trump-style dishonesty about migration and asylum should not be appearing in the output of the press office of an EU institution.

A Rwanda-clause – unlike the introduction of the transit clause in the ‘safe third country’ definition – has nothing to do with the route the asylum-seeker took, and everything to do with the destination country’s desire to dump the asylum-seeker in any State that will take them. This will inevitably become a key issue as regards the application of the law.

Adding the possibility of the EU asking non-EU countries for Rwanda treaties – as both the EP and the Council would like – does not change the game much. Although the EU has levers at its disposal to use the new transit clause – because its readmission treaties provide that the other parties must take back not only their own citizens, but also non-citizens who transited through their countries, and the EU’s visa code, visa waiver suspension rules, and soon trade policy laws, all sanction countries that do not comply – there are no such levers as regards Rwanda treaties. It remains to be seen what threats and bribes the EU and its Member States are willing to develop, and how easily the Rwandas of the world can be coerced or tempted by them.

 

The judgment of the Grand Chamber of the Court of Justice of the European Union on the Italy-Albania Protocol

 

 

 

Matteo Zamboni (human rights lawyer working between Italy and the UK. He is a partner to the Immigration Law and Policy clinic of Goldsmiths, University of London)

Photo credit: Shëngjin Port in Albania, the location of one of the two detention centres built by Italy © Albinfo, CC BY 4.0 via Wikimedia Commons

 

Introduction

 

On 1 August 2025, the Grand Chamber of the Court of Justice of the European Union (CJEU) published its judgment in joined cases C-758 and 759/24 (Alace and Canpelli) regarding the Italy-Albania Protocol, and more specifically the designation of safe countries of origin under Article 37 of EU Directive 2013/32 (the currently applicable asylum procedures Directive). In previous blogs on the public hearing of 25 February 2025 and the opinion of the Advocate General (AG) of 10 April 2025, I gave some information on the context of the case and its high political stakes at Italian and European level. Indeed, the plan is not only critical to the political capital of the Italian government but also admired by foreign heads of government, including the UK Prime Minister, and taken as an example (or a ‘general rehearsal’) by the President of the EU Commission.

 

On this latter point, it is probably worth repeating that, while the present case was pending before the CJEU, the EU Commission:

 

-          changed its position on whether, under Directive 2013/32, Member States have the power to designate a country as a ‘safe’ country of origin with the exclusion of ‘clearly identifiable categories of persons’, by first denying this possibility in its written pleadings of (where it was argued that ‘Directive 2013/32 does not allow for the designation of a third country as a safe country of origin where a significant number of persons belonging to the same category are systematically persecuted or face a risk of suffering serious harm […]’) and then admitting in the oral arguments made at the hearing (to the surprise of the President of the Grand Chamber);

-          adopted a proposal on the idea of “return hubs” located outside the European Union, with a move that mirrors the legislative amendment enacted by the Italian government while awaiting the decision of the Grand Chamber (with decree-law no 37 of 28 March 2025) to use one of the two centres built in Albania (the one in Gjader) as a return hub to detain individuals whose claims to international protection had been rejected and who are awaiting deportation; and

-          published a proposal for amendments to Regulation 2024/1348 (the asylum procedures Regulation, applicable from June 2026) which would, among other things: (i) create a European Union-level list of ‘safe countries of origin’, including Bangladesh, the country of origin of the real individuals behind the fictitious names of Alace and Canpelli; (ii) bring forward the possibility, for Member States, to apply the new provisions allowing to designate a country of origin as ‘safe’ in spite of the existence of ‘specific regions’ and/or ‘clearly identifiable categories of individuals’ for which the country is, in fact, not safe.

 

The extreme salience and significance of the case is equally witnessed by the intervention of 16 Member States that, like the Commission, endorsed the position of the Italian Government. It is no surprise, then, that the news that the judgment of the Grand Chamber granted all of the arguments made by the defence on behalf of the asylum seekers concerned was met by a strong reaction in the media and from the Government. As a matter of fact, in a long tweet posted on the day of the judgment, the Italian President of the Council of Ministers, Giorgia Meloni, accused the Court of Justice to ‘claim[…] powers that do not belong to it’ by ‘decid[ing] to delegate to any national judge the decision not on individual cases, but on the part of migration policy relating to the repatriation and expulsion of illegal immigrants’.

 

The tweet (which is very long and available here) betrays the disappointment for the considerable difficulties and drawbacks in the enforcement of the scheme. As denounced by the Italian watchdog for the region of Lazio, who visited the centres on 30 July 2025 with his counterpart for the city of Rome, just before the judgment, the centres accommodated an ‘extremely limited number of people’ (27) which could easily be detained in the available places in the Italian structure. Against this background, one could think that the CJEU judgment would mark the end of the scheme; but this would probably be too optimistic. In fact, the CJEU did neither ban the conduct of asylum procedures in Albania, nor delved deep into the many human rights concerns inherent in the extra-territorial processing of asylum claims, which have been already highlighted in the legal literature, and to some extent already referred to the CJEU for further consideration with an order of the Italian Court of Cassation of 29 May 2025-20 June 2025 (no 23105).

 

So, while this ruling is certainly ‘another blow to a key aspect of the Italian government's migration policy’, it will most likely not be the final one. Instead, as reported in the press, from the day following Meloni’s reaction on Twitter some of her ministers are already changing their tune, saying that the CJEU judgment is actually good, because it explains to the Italian government the changes to be enacted to (finally!) activate the centres in Albania.

 

Summary of the judgment

 

The judgment focusses on the designation of safe countries of origin (SCOs), which, as explained by Judge Jürimäe, bears far-reaching consequences for asylum seekers. It triggers the application of the accelerated examination procedure and the operation of the (rebuttable) presumption that no protection is needed. The question for the Grand Chamber of the CJEU, then, was which national authority has the final say over the designation of a country as ‘safe’ under Article 37 of Directive 2013/32 and whether a country can be considered as ‘safe’ in spite of the existence of exceptions for vulnerable categories. These questions are interesting from the point of view of EU law, since, as it has been noted, the CJEU has dealt with the issue only in one prior case; i.e., the judgment of 4 October 2024 in case C-406/22 (CV), regarding the designation of a country as ‘safe’ despite the existence of territorial exception (more specifically, the case was concerned with the designation of Moldova as a SCO by the Czech Republic with the exception of the region of Transnistria). Therefore, from a general perspective, a new (and clarificatory) intervention from the Luxembourg judges was much needed.

 

However, in the specific circumstances of the Italy-Albania Protocol, the question is even more critical, as it is precisely the designation of the country of origin of an asylum seeker as ‘safe’ that allows the deportation to the centres in Shengjin and Gjader  - and ultimately the operation of the whole scheme.

 

Under the applicable legislation (the Protocol of 6 November 2023, as integrated by the Standard Operation Procedures of the Ministry of the Interior, and the ratification law no 14 of 21 February 2024), prior to the amendments enacted by decree-law no 37 of 28 March 2025, passed into law no 75 of 3 May 2025, the requirements for deportation and detention into the centres in Albania were:

 

-          the fact that a ‘migrant’, as defined by Article 1(d) of the Protocol, is intercepted by the Italian navy on the high sea (see Article 4(4) of the Protocol; paras 4-6 of the SOPs; Article 3 (2) of law no. 14/2024, which makes explicit reference to ‘persons taken aboard Italian authority vessels outside the territorial waters of the Republic or other Member States of the European Union, including as a result of rescue operations’);

-          the consideration that the person concerned does not belong to one of the vulnerable categories established by law (i.e., women, non-accompanied minors, individuals affected by clear pathological conditions, elder people - see para 1 of the SOPs); and

-          the assessment that the asylum seeker comes from a country designated as a SCO (see para 6 of the SOPs). 

 

In terms of the domestic legal system, the latter requirement stems from Article 3(3) law no 14/2024, which equalises the centres in Albania to the border and transit areas provided for by legislative decree no 25 of 28 January 2008. This is the legislation that Italy passed to implement Directive 2005/85 on minimum standards on procedures in Member States for granting and withdrawing refugee status (the previous asylum procedures Directive), and that was then amended and integrated to transpose Directive 2013/32 and further EU legal instruments regarding asylum procedures. Among many other things, this legislation established a list of SCOs (at Article 2-bis, as amended by Article 1 of decree-law no. 158 of 23 October 2024) and stated that the request for international protection filed by individuals coming from one of such countries can be dealt with under the accelerated procedure (see Article 28-bis).

 

Moreover, Article 3(4) law no. 14/2024 states that the centres in Albania are to be considered as equivalent to the reception centres established by Article 10-ter(1) of legislative decree no. 286 of 25 July 1998; i.e., the so-called ‘special crisis centres’ in which are detained the ‘foreign nationals who are tracked down while crossing internal or external borders illegally, or who arrive on national territory following rescue operations at sea’. In terms of EU law, basically Italy relied on the designation of SCOs under Article 37 Directive 2013/32 to trigger the accelerated procedure under Article 31(8)(b) of that Directive and considered that the examination of the asylum request from the centres in Albania would be equal to the border procedure provided by Article 43 of the same directive. Therefore, the designation of the country of origin of the migrants concerned as a SCO is the necessary preliminary point for the operation of the entire scheme, including deportation to and detention in the centres in Albania.

 

The questions referred to the CJEU

 

For the sake of clarity, it is worth restating that the questions referred to the CJEU by the Tribunal of Rome in November 2024 concerned whether EU law, and in particular Articles 36, 37, and 39 of Directive 2013/32, interpreted in the light of Article 47 of the EU Charter on Fundamental Rights (‘the Charter’),

-          prevents Member States from designating SCOs by means of legislative instruments (acts of Parliament);

-          requires national legislation to publish the sources relied on for the designation of a specific country as a SCO;

-          allows national judges called to review the designation of SCOs to use information from sources other than those referred to in directive 2013/32; and

-          precludes a non-EU country from being designated as a SCO where there are categories of people for whom the substantive conditions for such a designation laid down in Annex I to directive 2013/32 are not met.

 

The answers of the Grand Chamber

 

At the outset, the 15 Judges assessed the admissibility of the request for referral, reminding that, according to settled case-law, ‘questions on the interpretation of EU law referred by a national court […] enjoy a presumption of relevance’ and can be refused ‘only [i] where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, [ii] where the problem is hypothetical, or [iii] where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it’. Clearly, in the mind of the Grand Chamber, none of these instances applied to the case at hand, which, on the contrary, raises questions of interpretation of Directive 2013/32 highly relevant for the solution of the case (see judgment § 38-41 with reference to the judgment of 19 December 2024 in cases C-185 and 189/24 (Tudmur) § 26)

 

The first question and the issue of disapplication

 

On the first question, the Grand Chamber followed the argument advanced by all the parties at the hearing, including the defence, and by the AG in his opinion, stating that the term “legislation” contained in Article 37(1) of Directive 2013/32 is to be interpreted in a wide manner; and that neither Article 37 nor other provisions of Directive 2013/32 sets out the specific national authority competent for the designation or the specific legislative instrument to be used for that purpose (ibid § 56 and 59-60). Finally, the Court reminded that, under Article 288(3) TFEU, Member States enjoy a margin of discretion when implementing directives (ibid § 61). So, the Court concluded that nothing prevents a Member State from issuing a list of SCOs by means of an act of Parliament.

 

At the same time, albeit acknowledging that, as stressed by the Italian Government and by all the intervening Member States, EU law leaves discretion to States when issuing the list of SCOs, the Court clarified that said discretion does neither affect (i) ‘the obligation […] to adopt all the measures necessary to ensure that the directive concerned is fully effective”, nor (ii) ‘the duty of the national judge to give full effect to the provisions of Directive 2013/32, including by dis-applying as required, of its own motion, any national rule, even if adopted subsequently, which is contrary to a provision of EU law with direct effect, without it having to request or await the prior setting aside of that national rule or practice by legislative or other constitutional means’ (ibid § 62 with reference to the judgments of 10 April 1984 in case C-14/83 (von Colson and Kaman) § 15 and of 31 March 2022 in case C-472/20 (Lombard Lízing) § 53; § 63 with reference to the judgments of 9 March 1987 in case C-106/77 (Simmental) § 21 and 24, and of 28 January 2025 in case C-253/23 (ASG 2) § 90).  

 

This argument was compounded by the reference to the right to an effective remedy and to a fair trial, enshrined in Article 47 of the Charter. Indeed, the Court quoted from the precedent of case C-406/22 and held that

 

‘Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, must be interpreted as meaning that, where an action is brought before a court or tribunal against a decision rejecting an application for international protection, examined in the context of the special scheme applicable to applications lodged by applicants from third countries designated, in accordance with Article 37 of that directive, as safe countries of origin, that court or tribunal must, as part of the full and ex nunc examination required by Article 46(3) of that directive, raise, on the basis of the information in the file and the information brought to its attention during the proceedings before it, a failure to have regard to the material conditions for such designation, set out in Annex I to that directive, even if that failure is not expressly relied on in support of that action’ (ibid § 66 with reference to case C-406/22 § 98)

 

On this basis, the Grand Chamber concluded that the fact that a Member State decided to designate SCOs by means of an act of Parliament, while not in itself contrary to Article 37 of Directive 2013/32 or any other EU law provision, cannot prevent the national judge to “check” (“controllare”) the designation, or “subject [it] to judicial control” (“oggetto di un controllo giurisdizionale”), on the basis of the substantive requirements set out in Annex I to the directive (ibid § 66 and 67 for the answer to the question).

 

The second and the third question on the right to access to the sources used for the designation of SCOs

 

As regards the second and the third question, the Court recognised that, while it lists a series of sources that need to be taken into consideration (namely, ‘information from other Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations’), Article 37(3) of Directive 2013/32 does not expressly set out that the national authorities are under the obligation to publish and make accessible the sources used for the designation of SCOs (ibid § 70-71). Still, the Court followed the ‘systemic’ approach indicated by the AG in his opinion and applied a three-fold argument to reach the conclusion that (i) ‘the Member State designating a third country as a safe country of origin must ensure sufficient and adequate access to the sources of information referred to in Article 37(3) of [the] Directive’ and (ii) ‘the national judge […] may, if it verifies, even incidentally, whether such designation complies with the substantive conditions for such designation set out in Annex I to that Directive, take into account the information it has gathered, provided that, on the one hand, it ensures the reliability of that information and, on the other hand, it guarantees the parties concerned the right to be heard’ (ibid § 88).

In the first place, the Grand Chamber noted that the designation of a country as ‘safe’ triggers the operation of the presumption of sufficient protection in the country of origin of an asylum seeker. However, in order to guarantee the right to challenge and rebut the presumption, the asylum seeker must be put in the condition of knowing the reasons for the designation, including the sources employed by the national authorities’ (ibid § 72-73).

 

In the second place, the Judges underscored that Article 12(1)(d) of Directive 2013/32, read in combination with Article 10(3)(b), states that during the procedure regarding the examination of their claim, asylum seekers have a right to access ‘precise and up-to-date information […] from various sources, such as EASO and UNHCR and relevant international human rights organisations, as to the general situation prevailing in [their] countries of origin’. It, then, concluded that this information is basically the same as that referred to in Article 37(3). Moreover, under Article 10(4) of the directive, the national judicial authorities hearing an appeal against a decision of refusal of protection have access to the same information (ibid § 74-75).

 

In the third place, the CJEU relied - once again - on the right to fair trial, guaranteed by Article 47 of the Charter, as a guide in the interpretation of Article 46 of Directive 2013/32, which set out the right to an effective remedy, reminding that, as it had already been stated in case C-406/22 and other precedents, the right to effective judicial protection resulting from the combination of these two provisions ‘is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such’ (ibid § 77 with reference to case C-406/22 § 86 and case law therein cited). That said, the Court remarked that effective judicial control presupposes that both the asylum seeker and the judicial authority must have full knowledge of the grounds of the decision of refusal (ibid § 78 with reference to the judgments of 4 June 2013 in case C-300/11 (ZZ) § 53 and of 29 July 2024, C-185/23 (protectus) § 79).

 

Yet, where a request for protection is denied as manifestly ill-founded since an asylum seeker comes from a ‘safe’ country, the reasons for the refusal overlap with the grounds to hold that the said country is indeed to be designated as ‘safe’ under Articles 36 and 37 and Annex I of Directive 2013/32 (ibid § 79). The ensuing conclusion that the asylum seeker and the national judge must have access to the sources and information relied on by the national authorities for the purpose of designating a country as ‘safe’ was further compounded by the literal interpretation of Article 46 of the Directive in the part that state that ‘Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU […]’.

 

In this regard, with an argument that it had already employed in case C-406/22, the Court stressed that the expression ‘ex nunc’ indicates that the examination of the judicial authority has to include ‘new elements intervening after the adoption of the decision of refusal [of protection]’; that the adjective ‘complete’ means that the national judge has to examine ‘all the elements [that] […] have, or ought to have, been taken into consideration’ in the decision of dismissal of the claim; and that the clause ‘where applicable’ highlights that the process of judicial review ‘does not necessarily have to focus on the […] merits of the request for international protection’, rather ‘it could be concerned with the procedural aspects [of the claim] […] including the designation of a third country as a safe country of origin’ (ibid § 81-84 with reference to case C-406/22 § 87-91).  

 

The fourth question on the “personal exception” to the designation of SOCs

 

Finally, the Court held that Article 37 and Annex I of Directive 2013/32 prevent a Member State from designating a country as a SCO where the substantial conditions set out in Annex I to the directive are not satisfied for certain categories of persons. The conclusion ensues from an analysis of the letter of Article 37; the context of that provision in the framework of Directive 2013/32; and the objective of the EU legislation (ibid § 91).

 

To begin with, the Grand Chamber noted that nothing in the text of Article 37 suggests the terms ‘countries’ and ‘third countries’ may be interpreted as regarding just a portion of the population, even if this portion would be the majority (ibid § 92). This was confirmed by an analysis of the context of the directive, and specifically of the “substantive criteria” listed in Annex I. Here, the CJEU disagreed with the argument put forward by the AG and held that, in spite of ‘semantic differences’ in the official translations, the adverbs ‘generally’ and ‘consistently’ (in the English version of the directive) refer to a notion of ‘invariability’ (“invariabilità” in the Italian version of the judgment, ibid § 93-96). Moreover, the Court repeated that, as it had already stated in case C-406/22, all clauses of derogation and exceptional provisions need to be interpreted in a restrictive manner (ibid § 100).

 

It is perhaps worth noting that, in giving the interpretation of Article 37 in accordance with the literal and context-based approach, the Grand Chamber does not reference case C-406/22, although the same reasoning features in that judgment at §§ 65-71. On the other hand, case C-406/22 is explicitly quoted in the argument regarding the interpretation of Article 37 based on the objectives of Directive 2013/32. Indeed, §§ 101-106 of the Alace and Canpelli judgment replicate §§ 77-82 of case C-406/22. In both judgments, the Court stated, in essence, that the purpose of Directive 2013/32 is to ensure that, even under the accelerated procedure, asylum claims receive ‘adequate’ and ‘complete’ examination, in compliance with ‘basic principles and guarantees’, and that the presumption of safety of a country of origin remains ‘rebuttable’. In this context, the Court concluded that, when enacting Directive 2013/32, the EU legislature exercised its ‘discretion’ in order to ‘strike a fair balance’ between the need to speed up the processing of asylum requests and the duty to ensure that these are given full and fair examination. In the framework of this balancing exercise, the EU legislature decided ‘not [to] provide […] for the option for Member States to exclude certain categories of persons for the purposes of such designation’. Falling within the ‘prerogatives’ of the EU legislature, this choice of the balance point cannot be questioned by Member States.

 

The same applies to the decision as to the date of entry into force of the new Regulation 2024/1348, allowing, at Article 61(2), for the designation as a ‘safe country of origin’ with exceptions for specific parts of its territory or clearly identifiable categories of persons. Once again, the Grand Chamber held that the EU Legislature decided that the new legislation will only come into effect in June 2026 (ibid § 101-106).

 

As anticipated, this reasoning is exactly the same as the one developed in case C-406/22 concerning the so-called “territorial exception”. The only difference is that the Alace and Canpelli judgment contains (at § 107) a further reference to the proposal of the Commission entailing the amendments to Regulation 2024/1348 and the anticipation of the possibility, for Member States, to apply the new provisions regarding the designation of SOCs to ‘as soon as possible before June 2026’. Even this initiative is seen as an example of the exercise of legislative prerogatives by EU institutions, which, according to the CJEU, further reinforces the conclusion that – as the legislation currently stands under the realm of Directive 2013/32 – EU law does not allow for group exceptions in the designation of SCOs.

 

Conclusion

 

As noted, the CJEU gave priority to the case of Alace and Canpelli and suspended the examination of all the other questions referred by Italian judges, including on the designation of SCOs. Yet, it is not certain that the judgment of 1 August will clear all doubts surrounding the issue, and that, as a consequence, it would allow national judges to resolve the cases before them independent from further guidance from the Court.

 

This seems to be particularly true as far as the issue of disapplication is concerned. In fact, the Grand Chamber does not seem to answer in full to the argument, put forward by the Italian government, that the effective remedy available to the concerned asylum seeker to question, in general terms, the designation of a his or her country of origin as ‘safe’ is a challenge of constitutionality. By the same token, the Grand Chamber can be said to have failed to address the views of the Italian Constitutional Court in its most recent case law in this regard, as for example judgment no 181/2024, which introduced the concept of “constitutional tone”.

 

In the case, this view was supported by all the intervening Member States and the Commission with a more general argument aimed at underlying the difference between a general judicial review, which would involve the possibility, for the national judge, to question whether the designation of a country as ‘safe’ complies with the criteria laid down in Annex I of Directive 2013/32, and a more individualised assessment that the national judge will perform on whether the designation of a third country as a SCO does not apply to the individual(s) whose case is under examination, meaning that, for them and only for them, the country cannot be considered as ‘safe’. According to this argument, that in my opinion was best summarised at the hearing by the counsel for the German Government:

 

-          Directive 2013/32 distinguishes between the general designation of a country as a SCO, on the one hand, and the application of the concept in a specific case, on the other hand. The former assessment is based on general considerations, while the latter is based on the specific circumstances of the asylum seeker concerned.

-          Every national court has the power to perform the second assessment (application of the general designation of a country as a SCO to a specific case). However, the first assessment (general designation of a country as a SCO) must remain separate from this, and reserved to the Legislature. This is so because EU law leaves ‘leeway’ to Member States

-          If a national court believes that the general assessment that prompted the designation of a country as a SCO goes against the Constitution and/or EU law, it will have to raise a challenge of constitutionality before the constitutional court.

 

This was certainly taken into consideration by the AG in his opinion, which highlights the difference between a general challenge to the designation of a SCO and the decision, based on the specific circumstances of the case, that the designation does not apply to one or more individuals. This is probably the reason why, in his opinion, the AG never mentioned dis-application and rather chose to rely on the right to judicial protection (Article 47 of the Charter) and the right to an effective remedy (Article 46 of Directive 2013/32).

 

Against this backdrop, it seems as though the judgment does not really engage in these nuances. Indeed, the Grand Chamber refers to both dis-application and the right to an effective remedy when establishing that the national judge has the power to review the designation of a SCO. Yet, that part of the judgment may appear to be excessively straightforward. Indeed, the Court does not explicitly say that Article 37 and/or Annex I of Directive 2013/32 have direct effect, but merely implies this when referring to disapplication at § 63 of the judgment.

 

This omission is all the more apparent when considering that

 

-          the question as to whether Article 37 has direct effect was referred to the CJEU by the district Court of Bologna in case C-750/24 Ortega, but the Court suspended the examination of that request and gave priority to Alace and Canpelli;

-          in a different section of the judgment (at § 77) the Grand Chamber explicitly says that Articles 47 of the Charter and Article 46 of the directive have direct effect;

-          as I have already argued in my previous blog it does not seem too obvious that Article 37 qualifies as a provision of EU law capable of having direct effect on the basis of previous case law of the CJEU on the matter.

 

That said, it is also true that, leaving aside technicalities that may well be addressed in future cases, the answer of the Grand Chamber on the matter is clear: the need to ensure a full and fair examination of asylum claims at the European Union level requires that the national judge has the power to review each and every aspect of the request, including the designation of a country of origin as ‘safe’. In this sense, the judgment fits in the CJEU case law that has historically underscored the importance of the role of the national judge in the correct implementation of EU law.

 

The conclusion is the same as far as the answer to the fourth question is concerned, as it is indeed remarkable that the CJEU dismissed the “pragmatic” approach put forward by the Italian Government and resisted the “pressure” exerted by the intervening Member States and by the abrupt change of position of the Commission. The Grand Chamber also disavowed the opinion of the AG, which clearly favoured a loose interpretation of Article 37 and Annex I of Directive 2013/32, including on the basis of a questionable interpretation of the letter of the latter provision. Instead, the CJEU followed the defence, which had argued that ‘the letter of directive 2013/32, and especially its Annex I […] leaves no doubt as to the absolute impossibility to designate a country as a SCO whenever there are elements to hold that the country is, in fact, not safe for specific categories of people’. In so doing, it stressed the importance of the meaning of the hendiadys “generally” and “consistently”, saying that these terms require that the situation in a given country is “invariably” safe for its entire population.

 

Interestingly, while the reply to the first question can be read as a re-affirmation of the central role of the judiciary, the answer to the last question focusses on the prerogatives of the EU Legislature when exercising its discretion and striking a fair balance between the two conflicting objectives of Directive 2013/32; i.e. the interest to accelerate the examination of asylum claims vis-à-vis the duty to respect the basic rights of the asylum seekers.

 

For this reason, it seems to me that, rather than in terms of a conflict of powers (judiciary v executive) or institutions (EU v Member States), the judgment of 1 August 2025 should be read under the lenses of the tyranny of values. In this perspective, the issue is not as much which authority has the final say over an asylum claim, but whether, as a community based on the Rule of Law, the European Union and the Member States intend to place emphasis on pragmatic considerations regarding the burdensome effects of a large influx of asylum seekers, or whether the polar star is and remains the protection of fundamental rights - first and foremost the right to effective judicial protection.