Safe country of origin

Italy

Country Report: Safe country of origin Last updated: 18/05/22

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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]

  1. The relevant laws and regulations of the country and the manner in which they are applied;
  2. Respect for the rights and freedoms established in the ECHR, in particular the non-derogable rights of the Convention, in the International Covenant on Civil and Political Rights, and in the United Nations Convention against Torture;
  3. Compliance with the principles set out in Article 33 of the 1951 Refugee Convention; and
  4. 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, EASO, 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 list, adopted by decree of 4 October 2019 and entered into force on 22 October 2019,[6] includes the following countries: Albania, Algeria, Bosnia and Herzegovina, Cape Verde, Ghana, Kosovo, North Macedonia, Morocco, Montenegro, Senegal, Serbia, Tunisia and Ukraine.

The list has not been modified, but following the invasion on Ukraine on 24 February 2022, a Decree was adopted on 9 March 2022 and published on 11 March 2022, suspending the application of the decree on safe country of origin to Ukraine until 31 December 2022.[7]

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,[8] 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,[9] categories of persons or parts of the country for which the presumption of safety cannot apply.[10]

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.[11]

In any case, as highlighted by ASGI,[12] 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 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.[13]

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.

 

Procedural consequences

An applicant can be considered coming from a safe country of origin only if he or she is a citizen of that country or a stateless person who previously habitually resided in that country and he or she has not invoked serious grounds to believe that the country is not safe due to his or her particular situation.[14]

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.[15]

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.[16]

An application submitted by applicants coming from a safe country of origin can be rejected as manifestly unfounded,[17] 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 his or her particular situation.[18]

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.[19]

In practice, according to ASGI’s experience, Territorial Commissions did not reject as manifestly unfounded all asylum applications in case of safe country of origin in 2021.

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.[20] 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.[21]

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.[22]

The list of safe countries of origin has not been modified in recent years, in contrast with the profound changes registered in some countries such as Ukraine, which brought the recognition rates up to 50% in 2021. As stated above, the application of the concept of “safe country” for Ukraine has only been suspended until the end on 2022.

 

 

 

[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] Available at: https://bit.ly/3v2cexZ.

[8] Article 2 bis (2) Procedure Decree.

[9] This is the case of Algeria, Ghana, Morocco, Senegal, Ukraine and Tunisia.

[10] 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.

[11] 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.

[12] 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/3edVetq.

[13] Council of State, Decision n. 118 of 2022, available at: https://bit.ly/3MLTeui.

[14] Article 2-bis(5) Procedure Decree.

[15] Article 10(1) Procedure Decree, as amended by Article 7 Decree Law 113/2018 and L 132/2018.

[16] Article 28-bis (2) (c) as amended by Decree Law 130/2020.

[17]  Article 28-ter(1)(b) Procedure Decree, inserted Article 7 Decree Law 113/2018 and L 132/2018.

[18] Article 9(2-bis) Procedure Decree, inserted by Article 7 Decree Law 113/2018 and L 132/2018.

[19] 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.

[20] Civil Court of Florence, interim decision of 22 January 2020, cited above; see also: https://bit.ly/3bWqjA4.

[21] Article 35 -bis (3) Procedure Decree.

[22] Court of Cassation, judgment 19252/2020, mentioned in Court of Cassation decision ceiling of 2020, available at: https://bit.ly/3eDGDdS.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation