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.
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