Introduction

A long-awaited decision in Italy was published on the 1st of August 2025 by the Court of Justice of the European Union (CJEU) on the thorny issue of determining certain non-European states as "safe countries" for the purposes of applying international protection rules. At the end of 2024, the Tribunal of Rome raised two preliminary appeals to the CJEU within a few weeks of each other, concerning the processing of cases involving two Bangladeshi citizens. Their application for international protection had been rejected by the competent Territorial Commission essentially on the basis that Italian law (Decree-Law 158 of 23 October 2024, which amended Article 2-bis of Legislative Decree 25/2008 regulating the international protection procedure) qualified Bangladesh as a "safe third country". The other "safe" countries were Albania, Algeria, Bosnia and Herzegovina, Cape Verde, Côte d'Ivoire, Egypt, Gambia, Georgia, Ghana, Kosovo, North Macedonia, Morocco, Montenegro, Peru, Senegal, Serbia, Sri Lanka and Tunisia. Cameroon, Colombia and Nigeria had been excluded because in some areas "security" was not guaranteed. It should be noted that in December 2024, Law 187/2024 entirely repealed the entire Decree-Law 158/2024 and therefore, as of 11 December 2024, this list no longer has any effect; the acts adopted up to that date and the related rights and obligations remain valid and effective). 

The Rome court, to which the two asylum seekers had turned to reform the decision, doubted the compliance of that law with some articles of Directive 2013/32 on the European procedure for granting international protection, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (EUCFR), which affirms the right of every individual to an effective remedy when fundamental rights, including asylum, are at stake. In addition to European Union law, the application of the Italian legislation in question would also highlight a violation of Articles 6 (due process) and 13 (right to an effective remedy) of the European Convention on Human Rights (ECHR).

The judgment in Joined Cases C-758/24 (Alace) and C-759/24 (Canpelli – both names are fictional) was adopted by the Grand Chamber of the CJEU at the end of an accelerated procedure, but not as a matter of urgency, as had been requested by the Italian State. In addition to Italy, many other EU member states also contributed with their observations to the discussion.

The cases from which the CJEU judgment originates

The two Bengalis had been intercepted on a boat that, from Libya, was transporting them to Italy, without valid documents to enter the European country. In application of the Protocol stipulated between Italy and Albania on the management of migrants, as well as the law that provides for the ratification and execution of the same Protocol, Law 14/2024, the two migrants were transported to the administrative detention centre of Gjadër, located within Albanian territory. For them, in fact, given the ascertained origin from a "safe country" and given that they did not present "vulnerability" profiles, the accelerated procedure for determining the status of international protection by the territorial Commission of Rome – section at border II, at the newly inaugurated structure in Albanian territory, was applicable. The Commission rejected their applications and, given the impossibility of holding them in Albania (the validation of their administrative was rejected by the judge precisely because of doubts about the legitimacy of the accelerated procedure motivated by the "safe" nature of the applicants' country of origin), the authorities disposed their transfer to Italy, where the applicants challenged the measure before the Court of Rome. The main argument opposed to the rejection decision of the Territorial Commission focused on the fact that, despite the Italian authorities and Decree-Law 158/2024 stating that Bangladesh was a safe country of origin, the applicants maintained that, in their case, the country was not at all safe, as they had reason to fear inhuman treatment.

The decision of the CJEU was therefore expected not only for its general consequences on the Italian legislation on asylum seekers who are nationals of countries qualified as "safe", but also for its impact on the operation of the structures created in Albania within the framework of the Italy-Albania Protocol of 2023. The functions of these facilities are, in fact, closely linked to the possibility of managing in an accelerated manner and in the territory of a foreign country the status determination procedures for migrants (intercepted in the Mediterranean by the Italian Navy) holding the nationality of "safe" third countries. It is worth remembering that the Court of Rome is not the sole reference for preliminary rulings addressed to the CJEU by Italian judges regarding various provisions of national law on accelerated procedure, particularly as applied in the extraterritorial structures established in Albania. Some of these doubts were also expressed by the Court of Cassation, Section I, interlocutory order no. 34898, 30 December 2024. The Cassation Court suspended any further intervention pending the ruling of the CJEU.

The question referred to the Court for a preliminary ruling

The Italian courts referred a four-point question to the CJEU for a preliminary ruling.

In the first place, they ask whether a state can determine with a law (Decree-Law 158/2024) the "safe country" nature of a migrant's state of origin or whether this conduct is incompatible with Articles 36, 37 and 46 of Directive 2013/32, to be interpreted in the light of Article 47 EUCFR. The fact that this qualification is made with an act of law would seem to suggest that it excludes any discretion for a judge invested with the question of deviating from this determination. This would be contrary to EU law, which only allows for a rebuttable presumption of groundlessness of the application submitted by citizens of a "safe country", which the asylum seeker can challenge by proving the existence in the country of origin of a risk of persecution, torture, etc. 

Secondly, the Court of Rome notes that Decree-Law 158/2024 bases its list of safe countries, including Bangladesh, on "findings found from the sources of information provided by the competent international organisations": a very generic reference that does not allow the interested parties to challenge the validity of such information. Linked to this problem is the third question: the Italian judge wonders whether it is permitted for Italian courts under European rules – even in the silence of Italian law – to use any reliable source from which it can be inferred that the state designated as safe by law is actually not. Without this possibility to prove otherwise, the right to challenge the rejection of the application for international protection before the Court would be ineffective.

Finally, the referring  Courturt wonders whether Article 2-bis of Legislative Decree 25/2008 on the asylum procedure, as reformed in 2024, that expressly recognises that it is not possible to consider as safe countries in which a portion of the territory is not safe (and therefore does not include Cameroon, Colombia and Nigeria in the list of safe countries), but admits that states in which there are risks for certain categories of people can be considered "safe", complies with Article 37 of Directive 2013/32 and with Annex 1 to the same Directive. According to the EU provisions, it is "safe" the state in which "there is generally and consistently no persecution [...], no torture or inhuman or degrading treatment or punishment and no threat because of indiscriminate violence in situations of international or internal armed conflict". The doubt raised by the Italian Court about the legitimacy of the provision also arises in light of the content of Article 61.2 of   Regulation 2024/1348, which in 2026 will replace, repealing it, Directive 2013/32. Article 61.2 states that "The designation of a third country as a safe country of origin both at Union and national level may be made with exceptions for specific parts of its territory or clearly identifiable categories of persons". There is therefore a contradiction between Directive 2013/32, which links the "safe" nature of a state to the "general and consistent" lack of persecution, torture, etc., and Regulation 2024/1348, somewhat anticipated by the Italian law, which provides for territorial exceptions and exceptions for categories of people.

The answer of the Court of Justice of the EU

The CJEU ruling largely echoes the case law previously formed on the special procedure provided for in Directive 2013/32 for migrants from countries designated as "safe". The specialty of this procedure consists, among other things, in the fact of providing for reduced time for the processing of cases (according to the legislation in force in Italy, the Territorial Commission in some cases must rule within a maximum period of seven days) and to be conducted at the border of the country or in transit areas – or, as provided for by the Italian-Albanian Protocol, in an offshore structure, managed by the state on foreign territory. This accelerated status determination procedure is therefore carried out in derogation of the ordinary provisions. The exception concerns not only the timing, but also the fact that the asylum seekers who have not granted the "passport or other equivalent document" or who have not provided "adequate financial security", can be deprived of their liberty during the accelerated procedure, "for the sole purpose of ascertaining the right to enter the territory of the State".

The issue of accelerated procedures has been addressed in various CJEU rulings, notably in case C-406/22 of 4 October 2024, which led to multiple rulings by Italian judges that de facto have blocked the implementation of the Italy-Albania Protocol, and motivated Decree-Law 158/2024. The ruling of 1 August 2025 of the Grand Chamber essentially reiterates the contents of the decision of October 2024.

On the first point raised by the Court of Rome, the CJEU states that nothing in Directive 2013/32 and in the CFEU prevents a state from designating with a legislative act a list of "safe" third states of origin, provided that this does not limit in any way the right of the nationals of one of those states who have filed an application for international protection to challenge before a court the legitimacy of such determination, including in the framework of an accelerated procedure of status determination.

The determination of a state as falling within the "safe" countries list pursuant to national legislation cannot be made, as was the case with Decree-Law 158/2024, based on generic references to information in the state's possession. The state must indicate the sources used and ensure adequate access to them. Article 37 of Directive 2013/32, in particular, mentions information provided by other Member States, the Asylum Agency, UNHCR, the Council of Europe and other international organisations. Without this measure of transparency, the citizen would not be in a position to rebut the presumption of "safe country of origin" advanced by the state – the asylum seeker could not even assess whether it is appropriate to challenge in Court the Commission's rejection. In addition, the judge must be able to collect any other evidence to verify the existence or not, at present (ex nunc), of elements that justify the designation of a state as a safe country, excluding the risk of persecution, torture, inhuman treatment or indiscriminate violence on which recognition or denial of the right to international protection depends. In this regard, the Courts must respect the principle of adversarial proceedings between the parties and rely on trustworthy sources of information.

Finally, in light of Article 37 of Directive 2013/32, as the hypothesis that a state could qualify as "safe" a state in which there are unsafe portions of territory (this was one of the points decided in judgment C-406/22 of 4 October 2024) must be excluded, in the same way the country of origin of a migrant who guarantees security only to a portion of its citizens cannot be considered safe. To conclude otherwise would lead to extending to a broader category of asylum seekers a rule (that on the accelerated procedure) conceived as a derogation from the ordinary procedure. Indeed, territorial limitations and for categories of people are explicitly introduced in the new Regulation 2024/1348, intended to replace Directive 2013/32 (and the Italian government has somehow anticipated this rule, which in fact risks making the accelerated procedure the rule, rather than the exception, as the Directive meant). However, although the Commission has presented a proposal to anticipate the entry into force of the articles of Regulation 2024/1348 concerning safe third countries of origin (COM/2025/186 final), for now, the date of entry into force of the Regulation remains 12 June 2026. Therefore, for now, it is Directive 2013/32 that provides the EU legal parameter that national legislations must comply with.

Conclusion 

The judgment of the CJEU in cases C-758/24 and C-759/24 reiterates that the accelerated procedure provided for asylum seekers coming from countries for which a presumption of sufficient guarantee of human rights is valid remains an exception to the rule and that states are not allowed to construct regulatory shortcuts that extend beyond the current limits the scope of the derogatory rules provided for by EU law. The decision of the CJEU therefore puts the brakes on the plans of the Italian government to massively outsource the management of irregular migratory flows from the North African coast. It does so using arguments that appear even more rigorous than those prefigured by the interlocutory order of the Court of Cassation cited above, since the latter was willing to consider compatible with Directive 2013/32 the Italian rule that maintained the "safe" character of the applicant's state of origin even in the presence of cases of persecution, provided that they were limited to "categories" of individuals. 

The structures for irregular migrants built in Albania, presented as suitable to accommodate, once put into operation, up to 3,000 people at the same time and which commit a volume of expenditure estimated at about 650 million between 2024 and 2028, between 2024 and 2025 hosted for a few days a few dozen people, even in the face of the numerous decisions of the judges not to validate the detention in those facilities of people whose applications for international protection had been rejected.

In light of the impossibility of using the facilities in Albania for the intended purposes, the Italian government has opted for a partial change of their destination, making them a centre for repatriation (CPR), under Decree-Law 37 of 25 March 2025, which amended Article 3 of Law 14/2024 to this effect. By so doing, Italy crossed another line, making it the first extraterritorial centre for repatriation.

It is possible that, with the entry into force (perhaps earlier than June 2026) of the regulatory instruments of the European Pact on immigration and asylum, the normative system created by recent Italian legislation will eventually be healed, given that European regulations also seem oriented towards normalising the use of accelerated procedures (that tend to become the rule, rather than the exception), leveraging on the concept of the "safe" country of origin (or even transit) as a lockpick to break the system of rights and guarantees. For the moment, however, the manoeuvre attempted by the Italian state has crashed into the dam of EU law.