The Jilin Judgment (Case C‑249/25): Can Member States Suspend Asylum Procedures During Temporary Protection, and for How Long?

 

Dr Meltem Ineli Ciger, Associate Professor of International Law, Süleyman Demirel University

Photo credit: Maksym Kozlenko, via Wikimedia Commons

On 1 October 2026, the Court of Justice delivered Case C‑249/25 (Jilin), its fourth preliminary ruling on the Council Directive 2001/55/EC (Temporary Protection Directive, ‘TPD’) since the Directive was activated for people displaced from Ukraine. It follows Joined Cases C‑244/24 and C‑290/24 Kaduna (19 December 2024), Case C‑753/23 Krasiliva (27 February 2025) and Case C‑195/25 Framholm (20 November 2025), all discussed on this blog (here, here and here). The question in Jilin is: can a Member State suspend processing of applications for international protection of temporary protection beneficiaries until temporary protection ends? The Court’s answer is no, subject to an exception for cases of ‘objective impossibility’. This post summarises the judgment and then examines what the Court left undefined. It criticises the absence of any explicit reference to international refugee law as well as the requirements of necessity and proportionality in the Court’s assessment.

·         The facts and the questions referred

UB, a Chinese national of Uyghur origin, arrived in the Netherlands on 7 March 2022 with his Ukrainian wife and their child, and applied for asylum on 13 April 2022. During the examination, the Dutch authorities found that, as the family member of a Ukrainian national who had lived in Ukraine before 24 February 2022, he qualified for temporary protection. They therefore stopped examining his asylum claim, on the basis that it could resume once temporary protection expired (para 22). Article 43a of the Dutch Aliens Act 2000 allows this: for temporary protection beneficiaries, a decision on an asylum application may be taken at any time up to six months after temporary protection ends (para 19).

UB sent a formal notice of default in January 2024 and then brought an action for failure to act. The District Court of The Hague held that the 21‑month maximum time limit had started to run when the application was lodged, ordered the Minister to decide within eight weeks. On the Minister’s appeal, the Raad van State asked the Court of Justice two questions:

(1)   Does Article 17(2) of the TPD allow Member States to suspend the examination of an application for international protection made by a temporary protection beneficiary for the duration of temporary protection?

(2)   Do the time limits in Article 31 of the Directive 2013/32/EU (Asylum Procedures Directive, ‘APD’) start or resume running only when temporary protection ends, where the application was made before or during temporary protection?

Article 17(1) of the TPD provides that ‘[p]ersons enjoying temporary protection must be able to lodge an application for asylum at any time’; paragraph 2 adds that ‘[t]he examination of any asylum application not processed before the end of the period of temporary protection shall be completed after the end of that period.’ Article 31 of the APD sets the timetable for the regular procedure. A decision must be taken within six months of the lodging of the application (Article 31(3)). That period may be extended by up to nine months where complex issues of fact or law arise, where a large number of people apply simultaneously, or where the delay is attributable to the applicant; in duly justified circumstances, it may be exceeded by a further three months. Where the situation in the country of origin is uncertain but expected to be temporary, the decision may be postponed, subject to six‑monthly reviews (Article 31(4)). ‘In any event’, the procedure must be concluded within 21 months of the lodging of the international protection application (Article 31(5) of the APD).

Under Article 4 of the TPD, temporary protection should have lasted no more than three years. In practice, the Council has repeatedly prolonged the regime for people displaced from Ukraine, most recently until 4 March 2028 (Council Implementing Decision (EU) 2026/1912). In doing so, it has turned an exceptional, time‑bound emergency response into an open‑ended EU policy (see here, here, here and here). On the Dutch reading, an asylum claim lodged in spring 2022 might not have to be decided until late 2028.

·         The judgment

The Court joined the two questions and reformulated them as whether Article 17(2) of the TPD and Article 31 of the APD preclude national authorities from ‘automatically suspending’ the examination of international protection applications lodged by temporary protection beneficiaries, so that the decision time limit does not begin or continue to run until temporary protection has ended (para 34). The Court said yes and noted that such an automatic suspension is unlawful, whilst clarifying that Member States may only temporarily defer individual examinations beyond statutory deadlines in exceptional circumstances where strictly necessary to address an objective impossibility and prevent system collapse (para 64). The judgment provides three reasons.

First, the Court held that Article 17(2) of the TPD only governs what happens to applications not processed before the end of the temporary protection period. It says nothing about whether MS can suspend asylum applications during temporary protection (para 38) (This is also in line with Skordas’ assessment here p. 1213). Temporary protection should not prejudge recognition of refugee status under the 1951 Convention (Article 3(1)); beneficiaries must be able to apply for asylum ‘at any time’ (Article 17(1)); and a person whose asylum application is rejected continues to enjoy temporary protection (Article 19(2)). The Court noted that the legislature, in light of all these provisions, therefore envisaged that asylum procedures would run during temporary protection (paras 39–41). The Court, in line with the AG opinion, reasoned that the Commission’s original proposal included an option to suspend asylum procedures during temporary protection, but Member States could not agree on it and dropped it. No such power can therefore be read into Article 17(2) by implication (paras 42–44, following points 42–45 of Advocate General Campos Sánchez‑Bordona’s Opinion).

Second, the Qualification Directive and the APD apply to all applications for international protection, and nothing excludes applicants who already enjoy temporary protection. Article 31 of the APD time limits therefore apply ‘in principle’ to them as well (paras 45–48). In the Court’s view, Article 31 already takes account of pressure on asylum systems: it allows an extension of up to nine months where large numbers apply simultaneously, a further three months in duly justified circumstances, and postponement for an uncertain situation in the country of origin, all within the 21‑month limit (paras 49–53).

Third, a general and automatic suspension is not necessary to achieve the Directive’s aims (para 54). The TPD is meant to protect asylum systems from being overwhelmed, but it is also meant to ensure that beneficiaries keep ‘a real opportunity to obtain international protection’ once their situation has been examined (para 56). An EU‑wide activation of temporary protection does not mean that every Member State faces more applications than it can handle (para 58). When temporary protection expires, the authorities would face exactly the simultaneous surge of applications that temporary protection was supposed to prevent (para 59).

Having rejected automatic or a blanket suspension, the Court nonetheless recognised an exception. The Court noted it cannot be entirely excluded that a considerable number of applications lodged by temporary protection beneficiaries over a short period will make it ‘objectively impossible’ for a Member State to decide them all within the Article 31 time limits, ‘despite all the reasonably conceivable measures to deal with such an influx’ (para 60). In that case, the State may take measures such as examining applications in phases and setting priorities. This may lead it to defer the examination of some applications temporarily, even if not every application can then be decided within the Article 31 time limits (paras 61–62). National courts must check, in each case, that a missed deadline is not the product of a general and automatic suspension and results only from measures that are necessary to deal with the objective impossibility (para 63).  

·         Analysis

1. The tension of the judgment with the logic of temporary protection

The judgment sits uneasily with how temporary protection is usually understood. Under Article 2(a) TPD, the very purpose of immediate, group‑based protection is to avoid an asylum system being overwhelmed by a mass influx (para 35). In international practice, temporary protection has generally worked by suspending individual refugee status determination.

Jilin confirms that the EU took a different path in 2001. The Member States considered a suspension power and chose not to adopt one (para 42). What they kept instead was Article 19(1), which allows States to provide that a person cannot hold temporary protection and asylum‑seeker status at the same time. The result of the Jilin is that, in EU law, temporary protection can run alongside the asylum procedure. Whether that model can actually deliver on the aim stated in Article 2(a) is a fair question. The Court answers that Article 31 APD already provides the flexibility needed (para 53).

2. An exception that leaves much to explain

The difficulty is that the Court then created an exception that it barely defines. Four questions are left open. What counts as ‘objective impossibility’? The Court requires a ‘considerable number’ of applications ‘over a short period’ and the exhaustion of ‘all the reasonably conceivable measures’, but gives no threshold, no indicators and no burden of proof. Whether a State has hired enough staff, reallocated resources or used the accelerated procedures available to it will be argued case by case before national courts.

How does the exception fit with Article 31 itself? At para 53 the Court tells us that Article 31 already reflects the legislature’s ‘due consideration’ of pressure caused by simultaneous applications, which is why automatic suspension is unnecessary. However, paras 60–62 allow those same calibrated limits to be exceeded.  

Does it reach beyond 21 months? Article 31(5) of the APD requires the procedure to be concluded ‘in any event’ within 21 months. The operative part of the judgment allows deferral ‘including by exceeding that decision‑making period’, without saying whether the 21‑month limit is included. If it is, the Court has created a judge‑made derogation from a limit the legislature described as absolute.  

For how long, and for whom? Deferral must be ‘temporary’, and concern only ‘some’ applications, but the Court sets no outer limit and gives no criteria for prioritisation. Nothing in the judgment prevents a MS from prioritising other caseloads and leaving temporary protection beneficiaries at the back of the queue, which is the outcome Jilin was meant to prevent.

The exception will also apply unevenly. Para 58 makes clear that the test is specific to each State. The relevant variable, however, is not how many temporary protection beneficiaries a Member State hosts but how many asylum applications they lodge in a short period (para 60). Can a MS hosting large numbers of Ukrainians who never apply for asylum not rely on the exception? Can only Germany, Poland or Czechia make use of this possibility? What about other MS hosting a smaller number of temporary protection beneficiaries? These are the questions, in my opinion, left open.

3. What is missing? The international refugee law dimension and the doctrine of derogation

The international refugee law is absent from the judgment. The TPD makes explicit reference to the 1951 Convention. Recital 10 states that temporary protection ‘should be compatible with the Member States’ international obligations as regards refugees’ and ‘must not prejudge the recognition of refugee status pursuant to the Geneva Convention’, and Article 3(1) repeats the point. All Member States are parties to the 1951 Convention and its 1967 Protocol; Article 78(1) of the TFEU requires the EU’s asylum policy to be in accordance with the 1951 Convention, and Article 18 of the Charter guarantees the right to asylum ‘with due respect for’ the Convention.

This matters because temporary protection, conceived as a short emergency response, now routinely becomes protracted. Temporary protection for people displaced from Ukraine will have lasted six years by March 2028. When protection is prolonged, suspending individual status determination can no longer be explained simply as managing an emergency. The 1951 Convention contains no general derogation clause (cf. Durieux and McAdam 2004).  One of the issues which deserved attention, in my opinion, was therefore whether a State Party to the 1951 Convention may, for years, deny people who may well be refugees access to the asylum procedure through which they can claim the Convention rights that build up with lawful and durable stay. However, one should frame such a departure from the Convention as a derogation, as a necessity under general international law or by analogy with human rights derogation clauses; any derogation must be necessary, proportionate and temporary (see, for a fuller analysis, section 2 of this article). International refugee law scholarship has examined this question in depth (cf. Edwards 2012; Durieux 2014). I argued that a genuine mass influx may justify temporarily setting aside individual procedures. It is far less clear that a suspension lasting several years can meet the requirements of necessity and proportionality under international or EU law.

The Court did not engage with any of this. Its analysis stays within the relationship between the TPD and the APD. It never addressed or took into account whether deferring asylum procedures for up to six years is compatible with the 1951 Convention, even though Recital 10 and Article 3(1) of the TPD point straight to that question. It is worth mentioning the Advocate General’s Opinion (paras 60-65), in which he relied on Article 18 and on Article 52(1) of the Charter; he came close to taking these issues into account. Ironically, the outcome of Jilin is broadly what an international law analysis would support: no automatic, open‑ended suspension. But because the Court reached it through EU asylum acquis alone, it left the exception in paras 60–63 without an explicit necessity and proportionality framework that international law would have supplied.

Conclusion

Jilin is quite a vague judgment that leaves much to be discussed, especially given the new exception it introduces to the ban on general suspension of asylum procedures. Although the Court relied on objective impossibility as a ground, it does not make clear when Member States may continue to defer the processing of international protection claims lodged by temporary protection beneficiaries.

Jilin is the CJEU’s fourth preliminary ruling on the TPD, and it repeats a pattern visible in the earlier three. The Court reads the Directive carefully on its own terms and contrasts it with another instrument of the EU acquis but engages little with the international origins of temporary protection, its relationship with the 1951 Convention and leaves unresolved the basic tension between prolonged temporary protection and Member States’ obligations under the 1951 Convention.  

The judgment will matter well beyond UB’s case. Since 12 June 2026, applications lodged after that date are governed by the Asylum Procedures Regulation (Article 35 of Regulation (EU) 2024/1348), which shortens the extension for large numbers of simultaneous applications to six months, though it does not impact the backstop 21-month time limit. Jilin’s reasoning, that the general asylum time limits apply to temporary protection beneficiaries unless the legislature provides otherwise, is likely to carry over to the new regime. The exception created by the judgment may become even more attractive to States as a result. As the Court itself warned (para 59), Member States that suspended asylum claims face the prospect of a surge of pending decisions when temporary protection ends in March 2028. Jilin requires them, to a certain albeit vague extent, to start deciding on those claims now.

The Aleb judgment on ‘safe third countries’ in asylum law: the CJEU’s answer to EU legislative amendments?

 

 

Tamta Gventsadze, PhD candidate in law, UNITUS

Photo credit: Mstyslav Chernov, via Wikimedia Commons

 

Introduction

On February 5, 2026, the Court of Justice delivered its judgment in Case C-718/24, Aleb concerning the interpretation of Articles 33(2)(c), 38 and 46 of Directive 2013/32 in the context of the ‘safe third country’ concept and the right to an effective remedy, Article 47 of the Charter of Fundamental Rights of the European Union.

This analysis examines the Aleb judgment in light of the ‘safe third country’ concept under Directive 2013/32 (Asylum Procedures Directive, APD) and its replacement by Regulation (EU) 2024/1348 (Asylum Procedures Regulation, APR) from 12 June this year. After mapping the factual background and the Court’s clarification of the cumulative safeguards governing the presumption of safety, it then considers the impact of the 2026 amendments and assesses their implications for judicial control and fundamental rights protection.

I. Facts of the Case

The applicant, NP, is a Syrian national and an unaccompanied minor who lodged an application for international protection in Bulgaria on 2 November 2023. During the interview conducted on 1 December 2023, he stated that he had lived in Aleppo (Syria) and had left two to three months earlier with his brothers because of the war. Before “illegally entering the Bulgarian territory” (para. 19), NP stayed in Türkiye for approximately one month, where his brothers remained with three of his sisters who already lived there.

By decision of 18 June 2024, the Chairperson of the Bulgarian National Refugee Agency rejected the application, refusing to grant him both refugee and humanitarian status. The authority accepted that Syria was affected by internal armed conflict and indiscriminate violence and acknowledged that the applicant was exposed to a real threat to his life or person. Nevertheless, it refused to grant protection on the ground that Türkiye constituted a ‘safe third country’ in which the applicant could seek protection. The decision relied, inter alia, on the fact that the applicant had already lived in Türkiye for about a month without suffering harm, had close family members there, and that Syrian nationals in Türkiye benefited from temporary protection and protection against forced return; finally, “their basic needs [were] satisfied” (para. 20).

The referring court expressed doubts as to the compatibility of this approach with Directive 2013/32, especially considering the absence of both a defined methodology for applying the ‘safe third country’ concept and the lack of explicit procedural guarantees under Bulgarian law allowing the applicant to challenge the existence of a sufficient connection with Türkiye (paras 24-26).

II. The Presumption of Safety under Article 38 of the Directive

The judgment deals with the legal nature and limits of the presumption underlying the ‘safe third country’ concept. The Court begins by recalling that the application of Article 33(2)(c) of the APD (ie, providing that asylum applications are inadmissible where the ‘safe third country’ principle is applied) is conditional upon strict compliance with the requirements of Article 38 thereof (ie the definition of ‘safe third country’ and the conditions related to it). In para. 48 of the judgment, it is expressly stated that the conditions laid down in Article 38 are cumulative, with the result that the inadmissibility ground cannot be applied where any one of those conditions is not satisfied.

This formulation makes clear that the presumption of safety is neither automatic nor self-standing, it is legally constructed and constrained by a series of substantive and procedural safeguards (para. 46). More precisely, Article 38(2) requires Member States to regulate the safe third country concept through national law and that the national rules ensure: (i) there is a sufficient connection between the applicant and the third country so that return there is reasonable; (ii) must define a methodology for applying the concept, which includes either a case-by-case safety assessment or the designation of generally safe countries; (iii) must guarantee an individual examination and allow the applicant to challenge both the safety of the third country in their specific circumstances and the existence of the required connection.

Therefore, the key requirement in the safe third country designation is the existence of a “connection” between the applicant and the third country. The Court emphasizes that Article 38(2)(a) obliges Member States to define in national law criteria enabling authorities to determine whether such a connection exists and whether return to that country is reasonable (paras 51–52). Since the Directive does not define “connection,” Member States retain discretion to specify the criteria, but within EU limits.

Importantly, the Court further reiterates its prior case law that mere transit through a third country cannot, on its own, justify the conclusion that return there is reasonable (para. 54). This statement substantially narrows the presumption. It prevents Member States from relying on minimal factual links and requires a qualitative assessment of the relationship between the applicant and the third country, considering factors such as duration and circumstances of stay and family ties. It is evident that the presumption cannot be based merely on the “transit” criterion. Even where national law relies on the notion of “stay,” national courts must assess, in light of all circumstances, whether that stay genuinely establishes a sufficient connection (para. 55).

The Court also addresses national lists of safe third countries. Member States may, in principle, designate safe third countries by general act. However, such designation does not dispense with the obligation to conduct an individual assessment. National law must provide a methodology for a case-by-case evaluation of both the country’s safety for the applicant and the existence of a sufficient connection (para. 65). The presumption must remain rebuttable, and the applicant must be able to challenge the existence of that connection.

The judgment firmly situates the safe third country concept within the framework of effective judicial protection. Article 38(2)(c) must be read in conjunction with the ‘effective remedy’ rights in both Article 46 of the Directive and Article 47 of the Charter (paras 69-74). Even if national law does not explicitly confer such power, a court hearing an appeal must verify whether a sufficient connection exists.

Accordingly, the Court recalls that Article 46(1) of the Directive guarantees a right to an effective remedy in asylum cases and that Article 46(3) requires a full and ex nunc examination of both facts and law in asylum appeals. This standard applies even in inadmissibility cases and does not necessarily require a substantive assessment of protection needs, but it does require full judicial scrutiny of admissibility conditions. Furthermore, Article 47 of the Charter enshrines the principle of effective judicial protection and is directly applicable, thereby requiring national courts to conduct comprehensive review consistent with EU fundamental rights standards.

Therefore, when reviewing a decision declaring an application inadmissible on ‘safe third country’ grounds, national courts must conduct a full and up-to-date examination of whether the third country is safe for the applicant and whether all cumulative conditions, including the connection requirement, are fulfilled (para. 75). The Court thus subjects the presumption of safety to meaningful judicial scrutiny grounded in Article 47 of the Charter.

Finally, the Court confirms that an application may be declared inadmissible on ‘safe third country’ grounds even where the applicant faces a real risk of serious harm in the country of origin (ie, as distinct from the ‘safe third country’). This confirms that the ‘safe third country’ concept functions as a jurisdiction-allocating mechanism rather than as a substantive denial of risk in the country of origin. Precisely because it allows displacement of protection despite such risk, strict compliance with Article 38 safeguards is imperative.

III. Relevant changes of legislative framework

It is further necessary to underline that while the Court has provided meaningful clarifications regarding safe third country concept and judicial protection in light of corresponding provisions under Directive 2013/32 in a few months’ time this instrument will be replaced by another secondary EU legislation in the form of Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (already discussed in great detail here).

Upon a comparative assessment of these two contrasting instruments, several illustrative differences emerge between the provisions concerning safety presumptions, and those of appeals.

Article 33 of the APD addresses inadmissible applications, framing them as an exception to the obligation to examine the substance of an application, meaning that Member States are not required to assess the merits of qualification for international protection where one of the exhaustively listed grounds for inadmissibility applies. The list is limited: Art. 33(2) includes protection granted by another Member State, first country of asylum, ‘safe third country’, subsequent applications without any new elements, and applications lodged by dependents who had consented to be included in another application.

Article 38 of the APR restructures this framework, by separating the decision on admissibility from the decision on the merits. Article 39(3) explicitly governs rejection as unfounded following substantive examination pursuant to the ‘Qualifications’ Regulation (EU) 2024/1347. This structural clarification seems to strengthen the distinction between inadmissibility and unfoundedness, which had already been emphasized by the Court.

In addition, relevant to the current analysis, a notable development concerns the first country of asylum and ‘safe third country’ grounds of inadmissibility. In the APD, Article 33(2)(b) and (c) refer to Articles 35 and 38 without expressly conditioning inadmissibility on the likelihood of admission or readmission. The Regulation introduces an explicit safeguard, with Article 38(1)(a) and (b) essentially stating that inadmissibility may apply unless it is clear that the applicant will not be admitted or readmitted to the third country. Therefore, changes regarding admissibility grounds combine expansion with procedural tightening and partial codification of judicial safeguards.

To further detail the elements regarding the concept of ‘safe third country’, it seems clear that the evolution of the rules on this principle from Article 38 of the APD to Article 59 of the 2024 Regulation, especially as amended in 2026, reflects an apparent shift in structure and scope, even if several aspects remain unchanged.

First off, at the level of safety criteria, both instruments require absence of threats to life or liberty on Convention grounds, absence of serious harm, respect for non-refoulement, and protection against removal contrary to international law. The Regulation clarifies the content of “effective protection” through reference to Article 57 and to Regulation (EU) 2024/1347. As defined by Article 57, effective protection can be attained in a country that has ratified and respects the Geneva Convention on Refugee Status, within any permitted reservations or limitations. However, where a geographical limitation applies, or where the Convention has not been ratified, protection must be assessed against minimum criteria of permission to remain on the territory, access to sufficient means of subsistence to ensure an adequate standard of living, access to healthcare and essential treatment, access to education under general national conditions, and the availability of protection until a durable solution is found. Interestingly, these minimum criteria resemble those of subsidiary protection guarantees, but the context refers to international protection.

Secondly, additional significant changes concern Union and national designation mechanisms introduced by the Regulation. Article 59(2) and (3) of the Regulation, which have no previous equivalent in the Directive, allow partial designation for specific territorial parts or identifiable categories of persons and require reliance on a broad range of sources. Importantly, Art. 59(5)(b) explicitly maintained, that the ‘safe third country’ concept may only be applied where “there is a connection between the applicant and the third country in question on the basis of which it would be reasonable for him or her to go to that country” (the same standard of ‘reasonable’ connection as employed by the Court in Aleb).

However, the 2026 amendments substantially reshape the connection criterion, by removing it as a mandatory condition and introducing two additional bases. The concept may now apply where the applicant transited through the third country (explicitly opposing to what the Court prohibits in Aleb). It may also apply where an agreement or arrangement exists requiring the third country to examine protection claims. As already wittily named elsewhere, this ‘Rwanda clause’ permits transfer without prior connection or transit. Moreover, the removal of automatic suspensive effect in safe third country appeals in the 2026 amendments seem to further intensify a restrictive shift, although there is still a possibility for requesting a judicial suspension.

The most problematic aspect seems this possibility of transferring an individual to a state where they might have never even been to, but the secondary law would permit it solely due to the existence of an agreement (often in non-legally binding form of MoUs) between a EU Member State or the Union and possibly any third country. It is true that an applicant will maintain a possibility to appeal this decision, however, they might have to first ask for a suspensive effective of the appeal, which further complicates an already arduous procedure. In theory, a person might end up being transferred to such a supposedly ‘safe’ third country before a decision is made upon their request to remain, which could create a rather unclear legal consequence; would a person potentially have to be brought back, shall their appeal succeed? It is true that this particular scenario might be extremely rare in practice, but does this rarity allow for its legality?

Nevertheless, despite this expansion in scope, the APR maintains several core safeguards, explicitly stating that admission or readmission must be ensured and that individual assessment remains required (which could become more restricted in practice). Special guarantees also apply to unaccompanied minors, including best interests and prior assurances of protection; and the ‘Rwanda’ clause cannot apply to unaccompanied minors at all.

As confirmed by the Alace judgment, designations of ‘safe countries of origin’ must remain subject to judicial review under Article 47 of the Charter. The Court held that national courts must be able to examine compliance with material designation criteria and to rely on independent sources of information. This reasoning applies by analogy to ‘safe third country’ designations and considering that the Charter has the same legal value as primary EU law, legislative attempts to narrow judicial review cannot override it.

In this context, the Aleb judgment constitutes an additional message. It reaffirms that application of the ‘safe third country’ concept is subject to cumulative conditions and full judicial scrutiny. Even as the legislature broadens the concept and limits suspensive effect, the Court insists on effective judicial protection and strict assessment of safety criteria.

IV. Concluding Assessment

The Aleb judgment does not abolish the presumption of safety inherent in Article 38 of the Directive. However, it subjects the presumption to cumulative substantive conditions, mandatory individualized assessment, and full judicial review.

In more detail, the ECJ allows that the determining authority may apply the concept of ‘safe third country’ on the basis of information from publicly available sources and rely on a national list of safe third countries, if such exists, but this is only provided that national law also defines the methodology applicable for assessing, on a case-by-case basis, according to the particular circumstances of the applicant for international protection, whether the third country concerned satisfies the conditions for being regarded as safe for that applicant and the possibility for that applicant to challenge the existence of a connection, within the meaning of Article 38(2)(a).

Moreover, the Court’s insistence, particularly in paragraphs 48, 54 and 65 of the judgment, on the cumulative nature of the safeguards, the insufficiency of mere transit, and the necessity of a defined methodology, significantly limits the discretionary space of national authorities. The ECJ reinforces the procedural containment of the ‘safe third country’ mechanism, by linking these cumulative requirements to Article 46 of the Directive and Article 47 of the Charter, and by requiring national courts to verify the existence of a connection even where national law is silent in this regard.

Therefore, the Court ties the existence of the ‘safe third country’ presumption to two co-existing elements: clearly defined methodology underlining individual assessment (which includes the existence of “reasonable” connection between the applicant and the safe third country) and a possibility for judicial review of the connection requirement. It seems evident from this judgment, that the safety presumption, be it national or supranational level, would otherwise be invalid. In a way, Aleb strengthens the doctrinal link between inadmissibility decisions and effective judicial protection. The presumption of safety is permitted, per se, but only as a structured, reviewable and rebuttable legal construction embedded within the broader guarantees of EU fundamental rights law.

The combined effect of Alace and Aleb indicates that the Court of Justice does not seem to be prepared for relaxing the standards governing the designation and review of ‘safe third countries’. Nevertheless, it remains to be seen whether and how the Court will respond to the legislative changes, considering that they aim to abolish the mandatory connection element and restrict safeguards when challenging it.

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.