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 in particular those provided by other Member States of the European Union, EUAA, UNHCR, the Council of Europe and other competent international organisations.[4]
A list of safe countries of origin is adopted by decree of the Ministry of Foreign Affairs, in agreement with the Ministry of Interior and the Ministry of Justice. The list must be periodically updated and notified to the European Commission.[5] The first list was adopted by decree of 4 October 2019 and entered into force on 22 October 2019,[6] and initially included the following countries: Albania, Algeria, Bosnia and Herzegovina, Cape Verde, Ghana, Kosovo, North Macedonia, Morocco, Montenegro, Senegal, Serbia, Tunisia and Ukraine.
Even if the law provides that the designation of a safe country of origin can be done with the exception of parts of the territory or of categories of persons,[7] the decree merely refers to States without making any distinction and exception.
Indeed, information collected by the Ministry of Foreign Affairs, assisted by the CNDA COI Unit, had indicated, for many countries,[8] categories of persons or parts of the country for which the presumption of safety cannot apply.[9]
The existence of parts of the territory or categories for which the country cannot be considered safe should have led to the non-inclusion of these countries in the list.[10]
In any case, as highlighted by ASGI,[11] the decree appears illegitimate in several respects, as it does not offer any indication of the reasons and criteria followed for the inclusion of each country in the list. Moreover, the country files elaborated by the CNDA and by the Ministry of Foreign Affairs reveal that the choice of countries has not been based on a plurality of sources and, in some cases, the inclusion of only partially safe countries without the distinctions indicated by the CNDA is in contradiction with the results of the same investigation.
ASGI’s legal challenge of the decree at the TAR did not obtain positive results, and the negative decision has been recently upheld by the Council of State in its decision n. 118 of 2022.[12]
More specifically, the Council of State did not consider ASGI could introduce such a case representing the interest of the asylum seekers coming from the countries included in the Safe countries list. The Council of State reasoned that ASGI can act in representation of the interest of all third country nationals. In a such a case, however, the interest of persons coming from countries not included in the list may contrast with the interest of asylum seekers coming from “safe” countries. For this reason, ASGI could only represent one of the two groups. The Council of State also stated that the Decree is in conformity with EU law.
The new decree adopted by the Ministry of Foreign Affairs on 17 March 2023 and entered into force on 25 March 2023[13] repealed the previous decree of 2019, excluding Ukraine from the list of safe countries of origin, but expanding it to four new countries (Ivory Coast, Gambia, Georgia and Nigeria). The following nations are thus currently considered safe countries: Albania, Algeria, Bosnia and Herzegovina, Cape Verde, Ivory Coast, Gambia, Georgia, Ghana, Kosovo, North Macedonia, Morocco, Montenegro, Nigeria, Senegal, Serbia and Tunisia.
Article 4 of the Ministerial Decree stipulates that the notion of safe country and the consequent possibility of applying the accelerated procedure in the case of asylum seekers from Ivory Coast, Gambia, Georgia and Nigeria, does not apply to asylum applications submitted before 25 March 2023.
Although the decree mentions the note No. 181962 of the Ministry of Foreign Affairs and International Cooperation, which forwarded the fact sheets containing the determinations for the following countries, to date there has been no publication of the aforementioned fact sheets, thus precluding any verification of the legitimacy and reliability of the sources of information on the countries of origin that founded the decision to extend the list.
Thanks to a FOIA access and later to other sources ASGI obtained the Country sheets and published them.[14]
By Ministerial Decree of 7 May 2024, the list of safe countries has been expanded to include additional countries: Bangladesh, Cameroon, Colombia, Egypt, Peru and Sri Lanka. [15]
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.[16]
The Questura shall inform the applicant that if he or she comes from a designated country of safe origin, his or her application may be rejected.[17]
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.[18]
An application submitted by applicants coming from a safe country of origin can be rejected as manifestly unfounded,[19] 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.[20]
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 seeker. 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.[21]
In practice, according to ASGI’s experience, Territorial Commissions do not in practice 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 to an appeal lodged by an asylum seeker from Senegal as illegitimate 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 determined at least 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.[22] However, since the amendments made by Decree law 130/2020 the lack of automatic suspensive effect is connected to all applications made under the accelerate procedure, with the sole exclusion of applications made under the border procedure.[23]
As a general rule, the concept of safe country of origin is applicable only to asylum application introduced after the publication of the Safe Country of Origin list. The concept has been confirmed by the Court of Cassation in Judgement no. 25311/2020.
The Court of Cassation, with judgement 19252/2020, stated that the circumstance of coming from a country included in the list of safe countries does not preclude the applicant from being able to assert the origin from a specific area of the country itself, affected by phenomena of violence and generalised insecurity which, even if territorially circumscribed, may be relevant for the purposes of granting international or humanitarian protection, nor does it exclude the duty of the judge, in the presence of such an allegation, to proceed with a concrete ascertainment of the danger of said area and of the relevance of the aforementioned phenomena.[24]
On 18 November 2022, the Civil Court of Naples[25] suspended the effects of a denial decision from 2021 notified more than one year later to an Ukrainian asylum seeker, noting that the situation in Ukraine had notoriously changed and therefore the applicant could not be expelled pending the Court decision on the merit.
By Decree of 7 October 2022, the Civil Court of Rome suspended the effects of the denial notified to an asylum seeker 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 complain of fear of persecution due to sexual orientation.[26]
The Court of Naples by decree of 12 September 2022 reached the same conclusions regarding an applicant from Senegal, who declared being homosexual.[27]
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 of acquisition 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.[28]
On 20 September 2023 the Civil Court of Florence suspended the effects of the denial notified to an asylum seeker 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 seekers. 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.[29]
Other Courts, however, decided to apply or not the ordinary procedure to appeals submitted by Tunisians only on an individual base. 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.[30] Then, on 18 December 2023, the same court suspended the effects of the rejection decision issued to a Tunisian asylum seeker, considering that, due to his individual situation and on the base of a summary evaluation, the country could not be considered safe.[31]
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.”[32]
[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] Article 2-bis(1) Procedure Decree.
[6] 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.
[7] Article 2 bis (2) Procedure Decree.
[8] This is the case of Algeria, Ghana, Morocco, Senegal, Ukraine and Tunisia.
[9] The information sheets drawn up for each country were then sent to all the Territorial Commissions as an attachment to the CNDA circular no. 9004 of 31 October 2019, available in Italian at: https://bit.ly/2TBVjiF.
[10] In this sense, Civil Court of Florence, interim decision of 22 January 2020, available at: https://bit.ly/2TA3hZD; see also Questione Giustizia, I primi nodi della disciplina sui Paesi di origine sicuri vengono al pettine, Cesare Pitea, 7 February 2020, https://bit.ly/2zgXZeG; see also EDAL, Italy: The region of Casamance, Senegal, excluded by the presumption of “safe third countries”, 22 January 2020, available at: https://bit.ly/2yx3Qfu.
[11] ASGI, Nota di commento del Decreto del Ministro degli affari esteri e della cooperazione internazionale 4 ottobre 2019 sull’elenco dei Paesi di origine sicuri, 27 November 2019, available in Italian at: https://bit.ly/3edVet.
[12] Council of State, Decision n. 118 of 2022, available at: https://bit.ly/3MLTeui.
[13] Ministry of Foreign Affairs Decree, 17 March 2023, Regular updating of the list of safe countries of origin for international protection applicants, according to Article 2-bis of the Procedure Decree published on 25 March 2023 n. 72.
[14] See ASGI; available at: https://bit.ly/4aYHrUf.
[15] Ministry of Foreign Affairs and International Cooperation Decree, 7 May 2024, available at https://acesse.dev/8L1OU.
[16] Article 2-bis(5) Procedure Decree.
[17] Article 10(1) Procedure Decree, as amended by Article 7 Decree Law 113/2018 and L 132/2018.
[18] Article 28-bis (2) (c) as amended by Decree Law 130/2020.
[19] Article 28-ter(1)(b) Procedure Decree, inserted Article 7 Decree Law 113/2018 and L 132/2018.
[20] Article 9(2-bis) Procedure Decree, inserted by Article 7 Decree Law 113/2018 and L 132/2018.
[21] 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.
[22] Civil Court of Florence, interim decision of 22 January 2020, cited above; see also: https://bit.ly/3bWqjA4.
[23] Article 35 -bis (3) Procedure Decree.
[24] Court of Cassation, judgment 19252/2020, mentioned in Court of Cassation decision ceiling of 2020, available at: https://bit.ly/3eDGDdS.
[25] Civil Court of Naples, decree of 18 November 2022, available at: bit.ly/3JE1eNa.
[26] Civil Court of Rome, Decree of 7 October 2022, available at: bit.ly/40agRTM.
[27] Civil Court of Naples, Decision of 12 September 2022, available at: bit.ly/42wPODD.
[28] Civil Court of Catania, decision of 7 July 2022, available at: bit.ly/3yWJoAe.
[29] Civil Court of Florence, no. 3 decisions of 26 October 2023, cases no. 11464/2023, 3773/2023, 4988/2022
[30] Civil Court of Milan, decision of 1 December 2023.
[31] Civil Court of Milan, decision of 18 December 2023.
[32] Court of Cassation, United Civil Sections, Sentence no. 11399/2024 of 29 April 2024, available in Italian at https://l1nq.com/vQ78k.