Why the European Court of Justice rejects the Meloni government and its "tricks" regarding safe countries for migrants

On 1 August 2025, the Court of Justice of the European Union ( CJEU ) published its long-awaited ruling in joined cases C-758/24 [Alace] and C-759/24 [Cappelli]. As is known, the affair began with the transfer to the Gjader centre in Albania of a group of Bangladeshi citizens whose asylum applications were rejected as manifestly unfounded on 17 October 2024 after a summary examination conducted in a few hours, applying the so-called "accelerated border procedure " due to their origin being from a country that the Italian government had classified as " of safe origin" through a legislative decree.

Released from detention and returned to Italy following the decision of the Rome Tribunal's Specialized Section for Asylum, which found the application of the accelerated border procedure in Albania and their detention in the center to be unlawful, the applicants appealed against the denial of their asylum application before the Rome Tribunal, which suspended the proceedings , asking the CJEU to rule on the important preliminary questions on which the Court has now ruled. This is not just one dispute among many, but a decision with extremely significant political implications, given that the Italian government had with extreme determination cultivated its choice to open a detention center in a third country ( Albania ) to take as many people as possible rescued in international waters and seeking asylum in Italy, thus disproportionately expanding the notion of a safe country of origin in order to allow as many asylum seekers as possible to return there and at the same time trying to limit judicial control over decisions relating to asylum applications.

In its defense before the CJEU , the Italian government advanced two main arguments: the first was that it was possible to qualify a country of origin as safe by introducing exceptions for specific categories of persons (e.g., political opponents, ethnic minorities, persons of different sexual orientations) and that such exceptions could even be applied to an indefinite number. This approach aimed to deprive the very legal notion of a safe country of any meaning whatsoever. Such distortions were criticized by the Advocate General of the CJEU, who proposed to the Court an interpretation of the current legislation on safe countries of origin ( Directive 2013/32/EU ), according to which it was permissible to qualify an applicant's country of origin as safe if this entailed "limiting the personal exceptions to a very limited number of persons." The Court did not accept this argument and instead chose the stricter interpretation, holding that Article 37 of the current Directive " precludes a Member State from designating as a safe country of origin a third country that does not satisfy, for certain categories of persons, the substantive conditions for such designation, set out in Annex I to that Directive." In other words, no exceptions for categories of persons are possible. The argument regarding the legitimacy of exceptions, especially if multiple and aimed at many different categories of persons, is therefore swept away, and with it the very legitimacy of the current designation of safe countries of origin provided for by Legislative Decree 158/2024.

It will no longer be possible, for example, to argue that Egypt is a safe country of origin except for those who dissent from the current regime, which is, potentially, any citizen on a daily basis. Almost all the countries designated as safe countries of origin by Legislative Decree 158/2024 are therefore not safe at all, due to their conflict with EU law. The approach tenaciously championed by the Italian government is crumbling, and the application of the concept of safe country of origin will have to be radically revised, unless it faces new challenges to its legitimacy. The CJEU confirms the possibility for a Member State of the Union to establish a list of safe countries of origin through an act having the force of law, but must guarantee " sufficient and adequate access to the sources of information (...) on which such a designation is based. This access must, on the one hand, allow the applicant for international protection concerned, originating from that third country, to defend his rights under the best possible conditions" and must also allow the judge " to exercise his review of a decision concerning the application for international protection" . The judge therefore has full power to assess, in relation to the specific case submitted to him, the legitimacy of the designation as a safe country, in the sense of assessing whether it complies with the legal criteria established by European law. In making this assessment, he can obviously rely on multiple sources other than those used by the Administration, " provided, on the one hand, he ascertains the reliability of such information and, on the other, he guarantees the parties involved respect for the adversarial principle."

Anyone, beyond the legal technicalities, can understand the importance of what the CJEU states: namely, that a government cannot arbitrarily decide that a person seeking asylum's country of origin is safe if this serves current political purposes. Such designations consist of procedures that must comply with the legal criteria established by law, and that the judge is not the notary of the executive branch but is called upon to verify the legitimacy of the administration's decisions in relation to the legal system. Beyond the specific and complex subject of the right to asylum , these are elementary principles of the rule of law itself. It's disturbing to read the Italian government's unhinged reaction in a press release that, in what has now become Trumpian language, also attacks the Luxembourg Court (after having done so with the Italian judiciary , "subject, in recent months, to heavy public attacks for the exercise of their function ," as the National Magistrates' Association recalled yesterday), arguing that the European jurisdiction "claims areas that do not belong to it, in the face of political responsibilities," thus hindering "policies to combat mass immigration and defend national borders." It is the somewhat subversive assertion of a power that wants to be unregulated, free to do as it pleases.

The impact of the ECJ ruling generally concerns all cases of asylum seekers subjected to the accelerated border procedure because they come from so-called safe countries, whether they are detained or held in ordinary reception facilities, but it is particularly evident on the implementation of the Italian-Albanian Protocol. The Gjader center will remain empty of asylum seekers whom the Italian government had determined to deport there, marking the first European experiment in relocating asylum processing to a non-EU country. To date, only a dedicated wing of the center remains open as a CPR, which holds just a handful of people. However, even that part of the immense structure cannot remain active for the reasons I indicated on these pages on 25 June following the referral to the CJEU itself by the Court of Cassation ( Decision no. 23105-25 ) which, with excellent reasons, questions the European Court to determine whether it is possible, under EU law, to set up and manage an administrative detention facility for repatriation outside the Union to a non-EU country.

The Italian government, again in yesterday's rambling statement, argues that "it is strange that (the ruling) comes just months before the entry into force of the new EU Pact on Immigration and Asylum, which contains more stringent rules regarding the criteria for identifying those countries" (of safe origin), pretending to forget that the CJEU judges on existing law, not future law. It almost seems to admit that it knew it could not do what it did. Whether it will be possible to do so in the future is highly doubtful; the new Regulation (EU) 2024/1328 on asylum procedures does indeed provide that the designation of a safe third country can also be made " with exceptions for certain parts of its territory or clearly identifiable categories of persons" (Article 61(2)). However, on this point , the observations already made by the Advocate General of the CJEU apply: that is, that the exception, even where it were possible (which it is not today), cannot distort the basic concept and must remain extremely limited.

Indeed, the new Regulation is also clear in specifying that the concept of safe country of origin can only be applied if "on the basis of the legal situation, the application of the law within a democratic system, and the general political situation, it can be demonstrated that there is no persecution (...) nor any risk of serious harm (Article 61, paragraph 1)." A country whose legal system is not democratic can under no circumstances be legitimately included in the list—be it the common European one or those established at the national level by individual states, it matters little—of safe countries of origin. Even if we were in the new regulatory regime today, the designations made by the Italian government would likely also conflict with the new EU law.

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Gianfranco Schiavone