Italy-Albania protocol is still a flop. EU Court of Justice reveals critical flaws in safe countries decree

Brussels – In designating safe countries of origin, a legislative act is not enough. It is necessary to disclose, for the purpose of judicial review, the sources of information upon which that designation is based. It is the sacrosanct principle highlighted by the Advocate General of the Court of Justice of the European Union, Richard de la Tour, on which the decision of the court will base its decision after last November’s decision by a Rome court to ask for clarification in the context of the application of the controversial Italy-Albania protocol.

After an initial stop by the Rome Court, which in October suspended the transfer of twelve migrants to Albanian centers, Palazzo Chigi issued a legislative decree on October 23 revising the Italian list of countries of origin considered safe, adding countries such as Bangladesh and Egypt, so that they could speed up the processing of applications for international protection and lead them to the Albanian border centers. However, on November 11, Italian judges did not validate the transfer of seven other Bengali and Egyptian nationals precisely because of the alleged incompatibility of the Italian list of safe countries with the definition given by EU jurisprudence.

On that occasion, two Bangladeshi nationals, who had their asylum applications in Albania rejected by the Italian authorities precisely because of their home country’s inclusion on the safe list, challenged the decision in the Rome Court. The Italian judiciary asked for clarification on the application of the safe country concept to the EU Court of Justice because the judges said, “unlike the previous regime,” the Meloni government’s legislative decree “does not specify the sources of information on which the Italian legislature relied to assess the country’s security.” This made it impossible — for asylum seekers and judicial authorities — to “challenge and review, respectively, the lawfulness of such a presumption of safety, by examining in particular the origin, authority, reliability, relevance, timeliness, and completeness of those sources.”

The conclusions published today by de la Tour — whose task is to propose to the Luxembourg-based Court a legal solution in the case — confirmed the good faith of the Rome judges: “The national court examining an action against the rejection of a request for international protection must, in its examination of that act’s lawfulness, have at its disposal the sources of information on which that designation is based.” The “mere fact” that a third country is designated as a safe country of origin through a legislative act is not enough: “The legislative act implements EU law and must ensure compliance with the substantive and procedural safeguards afforded to applicants for international protection by EU law,” the Advocate General continues. The conclusion is clear: if there is a lack of information as to why a country has been deemed safe, the competent judicial authority will check the legitimacy of that designation “on the basis of sources of information which it has itself gathered from among those referred to in the directive.“

The directive in question, 2013/32, argues that “A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution (…), no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.”

 According to de la Tour, designating a third country as safe when it is not safe for everyone also has its problems: it is only possible if it is “a democratic system in which the general population enjoys lasting protection ” and “the Member State concerned expressly excludes those categories of persons from the application of the safe country of origin concept and the associated presumption of safety.” The Court is unlikely to overturn the Advocate General’s conclusions. However, in the end, the European Commission could greatly help Italy, promising governments to review the concept of designated safe third countries by the end of the year — broadening it and not excluding the adoption of a European list.