Author
The “safe country of origin” concept has been introduced in Italian legislation by Decree Law 113/2018, implemented by L 132/2018.[1]
Definition and list of safe countries of origin
According to the law, a third country can be considered a safe country of origin if, on the basis of its legal system, the application of the law within a democratic system and the general political situation, it can be shown that, generally and constantly, there are no acts of persecution as defined in the Qualification Decree, nor torture or other forms of inhuman or degrading punishment or treatment, nor danger due to indiscriminate violence in situations of internal or international armed conflict.[2]
The assessment aimed at ascertaining whether or not a country can be considered a safe country of origin shall take into account the protection offered against persecution and ill-treatment through:[3]
- The relevant laws and regulations of the country and the manner in which they are applied;
- Respect for the rights and freedoms established in the ECHR, in particular the imperative rights established by the Convention, the International Covenant on Civil and Political Rights, and in the United Nations Convention against Torture;
- Compliance with the principles set out in Article 33 of the 1951 Refugee Convention; and
- The existence of a system of effective remedies against violations of these rights and freedoms.
The assessment shall be based on information provided by the CNDA, as well as on other sources of information, including those provided by other Member States of the European Union, EUAA, UNHCR, the Council of Europe and other competent international organisations.[4]
The first list was adopted by decree of the Ministry of Foreign Affairs with the Ministry of Interior and the Ministry of Justice on 4 October 2019 and entered into force on 22 October 2019.[5]
By Ministerial Decree of 7 May 2024, the list of safe countries was expanded to include additional countries: Bangladesh, Cameroon, Colombia, Egypt, Peru and Sri Lanka. [6]
On 18 October 2024, the Civil Court of Rome, in its first ruling on the validity of the detention of asylum seekers transferred to Albania and originating from safe countries of origin, did not validate the detentions. The Court directly applied the CJEU’s judgement of 4 October 2024, which established that countries with territorial exclusions could not be included in the list of safe countries of origin and found that the Italian list did not comply with this rule.[7] Thus, on 24 October 2024, in an attempt to provide a stronger legal basis to the procedure for transferring asylum seekers from safe countries to Albania, the government issued DL 158/2024, which amended Article 2 bis of the Procedure decree to directly include the list of safe countries in the law. Some countries that were included in the previous list (i.e. Nigeria, Cameroon and Colombia), were deleted from the version that was introduced in the law.
The list now includes Albania, Algeria, Bangladesh, Bosnia-Herzegovina, Cape Verde, Ivory Coast, Egypt, Gambia, Georgia, Ghana, Kosovo, North Macedonia, Morocco, Montenegro, Peru, Senegal, Serbia, Sri Lanka and Tunisia.[8]
Following the CJEU decision of 4 October 2024 the law no longer indicates that the designation of a safe country of origin can be done excluding some parts of the territory. However, it provides that the list of safe countries of origin can be done excluding some categories of persons.[9]
The list of safe countries of origin is periodically updated and communicated to the European Commission. The law also requires that, by 15 January each year, the Council of Ministers submit a report that – while taking into account overriding security needs and the continuity of international relations – provides an update on the situation in the countries currently on the list, as well as those whose inclusion is being considered. The Government transmits the report to the competent parliamentary commissions.[10]
However, in 2025, the Government did not respect the established deadline and only transmitted the report on 1 April 2025.[11]
Immediately after the publication of the new list, more national Courts have raised doubts about the compatibility of the new legislation with EU law as interpreted by the CJEU:
- on 29 October 2024, the Civil Court of Bologna sent a request for a preliminary judgement on the safe countries list to the CJEU;
- on 4 November 2024, the Civil Court of Catania decided to directly disapply the DL 158/2024 regarding the new list of safe countries of origin;
- on 8 November 2024, the Civil Court of Palermo submitted another request for a preliminary judgement on the new safe countries list to the CJEU;
- on 11 November 2024, ruling the new validation judgments for detention in Albanian border procedure, the Civil Court of Rome requested a preliminary judgement to the CJEU: therefore, the procedure was suspended and people moved to Italy;
- on 31 January 2025, after the L. 187/2024 moved the competence to validate detentions of asylum seekers to the Court of Appeals, the Civil Court of Appeal of Rome, suspending for the third time the validation of detentions of asylum seekers moved to Albania, decided to request another preliminary judgement to the CJEU.
The first hearing at the European Court of Justice was held on 25 February 2025, reuniting cases C-758/24 (Alace) and C -759/2024 (Canpelli).
Procedural consequences
An applicant can be considered coming from a safe country of origin only if they are citizens of that country or a stateless person who previously habitually resided in that country and they have not invoked serious grounds to believe that the country is not safe due to their particular situation.[12]
The Questura shall inform the applicant, at the moment of lodging of the application that if they come from a designated country of safe origin, their application may be rejected.[13]
An application made by an applicant coming from a safe country of origin is channelled into an Accelerated Procedure, whereby the Territorial Commission takes a decision within 9 days.[14]
An application submitted by applicants coming from a safe country of origin can be rejected as manifestly unfounded,[15] whether under the regular procedure or the accelerated procedure. In this case the decision rejecting the application is based on the fact that the person concerned has not shown that there are serious reasons to believe that the designated safe country of origin is not safe in relation to their particular situation.[16]
Following the entry into force of the safe countries of origin list, the CNDA issued two circulars, on 28 October 2019 and 31 October 2019, giving directives to the Territorial Commissions on the application of the new provisions. In particular the CNDA assumed that the inclusion of a country of origin in the safe countries list introduces an absolute presumption of safety, which can be overcome only with a contrary proof presented by the asylum applicant. CNDA also underlined that, in the event of rejection, the applications should always be regarded as manifestly unfounded applications.
However, an overall exam of the rules of the Procedure Decree shows that the manifestly unfounded decision is only one of the possible outcomes of the examination of the asylum application when the applicant comes from a country designated as safe.[17]
In practice, according to ASGI’s experience, Territorial Commissions do not reject as manifestly unfounded all asylum applications in case of safe country of origin.
On 22 January 2020, the Civil Court of Florence deemed the exclusion of the automatic suspensive effect for an appeal lodged by an asylum applicant from Senegal to be in contrast with existing rules, as the applicant belongs to a category, that of LGBTI, whose treatment in Senegal should have resulted in the exclusion of Senegal from the list of safe countries or should have been the basis at least for the provision, within the decree, of a specific exception for this social group to the rules dictated for asylum applications submitted by safe countries nationals. Consequently, according to the Court, the Territorial Commission should not have refused the asylum application as manifestly unfounded only because of the safe country of origin of the applicant.[18] However, since the amendments made by Decree law 130/2020 the lack of automatic suspensive effect is connected to all applications made under the accelerated procedure, with the sole exclusion of applications made under the border procedure.[19]
As a rule, the concept of safe country of origin is applicable only to asylum applications introduced after the publication of the Safe Country of Origin list, a principle that was confirmed by the Court of Cassation in Judgement no. 25311/2020.
Case law on specific countries
On 18 November 2022, the Civil Court of Naples[20] suspended the effects of a rejection decision from 2021 notified more than one year later to a Ukrainian asylum applicant, noting that the situation in Ukraine had notoriously changed and therefore the applicant could not be expelled pending the Court decision on the merits.
By Decree of 7 October 2022, the Civil Court of Rome suspended the effects of the rejection notified to an asylum applicant from Tunisia whose asylum request was considered manifestly not founded due to the country of origin of the applicant, stating that Tunisia cannot be considered a safe country of origin for those who allege fear of persecution due to sexual orientation.[21]
The Court of Naples by decree of 12 September 2022 reached the same conclusions regarding an applicant from Senegal, who declared being homosexual.[22]
Moreover, with reference to the situation in Tunisia, the Court of Catania, with a decree of 12 July 2022, reiterated that although Article 2-bis of the Procedure decree introduces a burden of proof for the applicant coming from a safe country of origin to explain the subjective or objective reasons for which the country cannot be considered safe, the judge has the powers-duties to acquire updated information on the situation of the country (Articles 3 of Legislative Decree No. 251 of 2007 and 8 of Legislative Decree No. 25 of 2008), and, in the light of the most pertinent and updated sources of information on the socio-political situation of the country, considered that there were serious reasons to suspend the effects of the negative provision.[23]
On 20 September 2023 the Civil Court of Florence suspended the effects of a rejection notified to an asylum applicant from Tunisia. The court noted that, under the Asylum Procedure Directive Article 37 (2), the sources based on which a country is included in the safe countries list must be constantly updated and the inclusion itself should be subject to review if there is a change of the situation in the country. Moreover, national law (Article 3 of Qualification Decree and Articles 8 and 27 (1 bis) of the Procedure Decree) requires the judge to examine the asylum application on an individual basis, in light of precise and updated information about the general situation existing in the country of origin of asylum applicants. According to the Court, the need for an updated evaluation does not only concern the merit of the international protection application but also the usability of the “safe countries procedure”, which involves a series of more burdensome procedural peculiarities for the asylum applicant.
According to the Court, the sources on the current security conditions in Tunisia highlight a crisis of the democratic system of the country considering, in particular, the mass arrests, the suspension of numerous judges and the non-transparency of the elections. The updated situation does not allow, according to the Court, to consider compliance with the principle of non-refoulement in case of repatriation to Tunisia. Therefore, the Safe countries decree becomes ineffective, and the appeal has to be subjected to an ordinary procedure with the automatic right of the appellant to remain in the national territory until the appeal is decided.
By 3 other Decrees issued immediately after the latter, in October 2023, the Civil Court of Florence confirmed the previous positioning.[24]
Other Courts, however, decided to apply or not the ordinary procedure to appeals submitted by Tunisians only on an individual basis. This is the case, for example, of the Civil Court of Milan which, on 1 December 2023, deemed as not founded the suspensive request requested by the Tunisian applicant considering that no serious reasons had been given to believe that Tunisia was not safe for him.[25] Then, on 18 December 2023, the same court suspended the effects of the rejection decision issued to a Tunisian asylum applicant, considering that, due to his individual situation and on the base of a summary evaluation, the country could not be considered safe.[26]
On 29 April 2024, the United Civil Sections of the Court of Cassation issued an important decision, ruling that in case the accelerated procedure has not been respected by the Territorial Commission, the ordinary procedure will apply to the appeal, including the automatic suspensive effect. The Court pronounced the following principle of law: “in the event of a judicial appeal concerning the manifestly unfounded provision issued by the Territorial Commission for the recognition of International Protection against a person coming from a safe country, there is an exception to the general principle of automatic suspension of the contested provision only if the Territorial Commission has applied a correct accelerated procedure. (..)
In the opposite case, when the accelerated procedure has not been respected in its procedural aspects, the ordinary procedure will be reinstated and the general principle of automatic suspension of the Territorial Commission’s provision will be re-expanded.”[27]
[1] Article 2-bis Procedure Decree, inserted by Article 7 Decree Law 113/2018 and L 132/2018.
[2] Article 2-bis(2) Procedure Decree.
[3] Article 2-bis(3) Procedure Decree.
[4] Article 2-bis(4) Procedure Decree.
[5] Ministry of Foreign Affairs Decree, 4 October 2019, Identification of Safe Countries of origin, according to Article 2-bis of the Procedure Decree published on 7 October 2019 n. 235.
[6] Ministry of Foreign Affairs and International Cooperation Decree, 7 May 2024, available at https://acesse.dev/8L1OU.
[7] CJUE decision C‑406/22.
[8] Article 2 bis (1) Procedure Decree as amended by DL 158/2024 and then by L. 187/2024.
[9] Article 2 bis (2) Procedure Decree as amended by L. 187/2024.
[10] Article 2 bis (4) of the Procedure Decree.
[11] Senato della Repubblica, RELAZIONE Doc. CCXXXIX n. 1 SULLA SITUAZIONE DEI PAESI DI ORIGINE SICURI INCLUSI NELL’ELENCO DI CUI ALL’ARTICOLO 2-BIS, COMMA 1, DEL DECRETO LEGISLATIVO 28 GENNAIO 2008, N. 25, available here.
[12] Article 2-bis(5) Procedure Decree.
[13] Article 10(1) Procedure Decree, as amended by Article 7 Decree Law 113/2018 and L 132/2018.
[14] Article 28-bis (2) (c) as amended by Decree Law 130/2020.
[15] Article 28-ter(1)(b) Procedure Decree, inserted Article 7 Decree Law 113/2018 and L 132/2018.
[16] Article 9(2-bis) Procedure Decree, inserted by Article 7 Decree Law 113/2018 and L 132/2018.
[17] Article 32 (1 b bis) read together with Article 2 bis (5) Procedure Decree must be interpreted as meaning that the asylum request is manifestly unfounded only when the applicant has not invoked serious grounds to believe that the country is not safe due to his or her particular situation. Moreover, Article 35 bis of the Procedure Decree links the halving of the time limits for appeal and the absence of automatic suspensive effect to applications that are manifestly unfounded and not, in general, to applications from asylum seekers from countries designated as safe. See Questione Giustizia, Le nuove procedure accelerate, lo svilimento del diritto d’asilo, 3 November 2019, available in Italian at: https://bit.ly/2XqA8Rs.
[18] Civil Court of Florence, interim decision of 22 January 2020, cited above; see also: https://bit.ly/3bWqjA4.
[19] Article 35 -bis (3) Procedure Decree.
[20] Civil Court of Naples, decree of 18 November 2022, available at: bit.ly/3JE1eNa.
[21] Civil Court of Rome, Decree of 7 October 2022, available at: bit.ly/40agRTM.
[22] Civil Court of Naples, Decision of 12 September 2022, available at: bit.ly/42wPODD.
[23] Civil Court of Catania, decision of 7 July 2022, available at: bit.ly/3yWJoAe.
[24] Civil Court of Florence, no. 3 decisions of 26 October 2023, cases no. 11464/2023, 3773/2023, 4988/2022
[25] Civil Court of Milan, decision of 1 December 2023.
[26] Civil Court of Milan, decision of 18 December 2023.
[27] Court of Cassation, United Civil Sections, Sentence no. 11399/2024 of 29 April 2024, available in Italian at https://l1nq.com/vQ78k.