Blog post by Baya Amouri, Max Weber Fellow in Law at the European University Institute (EUI), affiliated with the EUI Migration Policy Centre
The concept of a “safe third country” lies at the heart of critical debates in European refugee law, particularly regarding its definition and application. This principle gained significant prominence during the 2015–16 refugee crisis, as exemplified by Hungary’s reliance on it to justify transferring asylum seekers to Serbia. In Ilias and Ahmed v. Hungary, Hungary argued that Serbia could be considered a safe third country, thereby absolving itself of the responsibility to process asylum claims. To substantiate this position, Hungary relied on three principal arguments. First, Serbia’s status as a candidate for European Union (EU) membership underscores its alignment with EU accession requirements. Second, Serbia has undertaken binding commitments to adhere to all pertinent international treaties and EU standards. Third, Serbia benefits from substantial EU support aimed at facilitating institutional reforms and enhancing its asylum infrastructure.
In light of these considerations, the Hungarian government contended that invoking the “safe third country” concept with respect to Serbia was both warranted and imperative, particularly in the context of unprecedented mixed migration flows. Contrary to this, the Grand Chamber of the European Court of Human Rights found that Hungary had “failed to discharge its procedural obligations under Article 3” of the European Convention on Human Rights (ECHR) by neglecting to adequately assess the risks associated with the applicants’ lack of access to an “effective asylum procedure in Serbia” or the likelihood of their future transfer from Serbia to North Macedonia and then Greece. The Court underscored that this failure exposed the applicants to the risk of inhuman or degrading treatment, constituting a violation of their fundamental rights under the ECHR. This controversial application sparked ongoing concerns about the scope of the “safe third country” principle, its alignment with international human rights obligations, and the inconsistencies in its implementation across EU member states.
A recent judgment by the migration and human rights section of the Court of Rome, dated 18 October 2024, has added another dimension to this debate. The Court ruled that Italy’s transfer of asylum seekers to Albania was unlawful and ordered the return of twelve Egyptian and Bangladeshi nationals to Italy. These individuals had been detained in Albania despite the rejection of their asylum claims by the relevant territorial commissions. The Court emphasized that repatriating them to their countries of origin would breach international legal protections, particularly the principle of non-refoulement, as these nations could not be considered safe for return. This decision underscores the precariousness of labelling a third country as “safe” and highlights the need for stricter adherence to international standards in determining such classifications.
Vagueness of the “safe third country” concept
The notion of “safe countries” or “safe third countries” lacks a clearly articulated legal basis in international refugee and human rights law, having emerged concurrently with the evolving framework of international human rights and protection obligations. Nevertheless, the underlying background of the concepts of “safe third country” and “country of first asylum” can be derived from the UN refugee agency’s Executive Committee Conclusion No. 58 (XL). This instrument, which permits individuals to be returned to the country where they have previously found protection, addresses the phenomenon of asylum seekers who “move in an irregular manner from countries in which they have already found protection, in order to seek asylum or permanent resettlement elsewhere.” Conclusion 58 (XL) reflects the efforts of states to facilitate returns through international bilateral and multilateral treaties, as exemplified by the 2013 EU-Turkey Readmission Agreement. The latter allows for the return of migrants who entered the EU in an irregular manner after transiting through Turkey— grounded in the first safe country principle. A key component of the EU-Turkey migration deal of 2016, the agreement has significantly contributed to the management of migration flows and the strengthening of EU-Turkey cooperation. While Conclusion 58 (XL) discusses the movement of asylum seekers who have already secured protection, it fails to define what constitutes protection and consider asylum seekers who transit through another safe country. This ambiguity has sparked international debate among states, leading to controversy regarding the definitions of “safe third country” and “first country of asylum.”
In the context of asylum, the above terms can denote countries that do not generate refugees or countries where refugees can seek asylum without the risk of being persecuted. Consequently, the concept of a “safe third country” is relevant in two distinct situations, each necessitating its own considerations: first, in relation to a “safe country of origin” ; second, in reference to a “safe country of asylum.” In the European context, the concept of “safe countries of origin” emerged prior to its formalization in EU Council Directive 2005/85/EC, which is primarily aimed at managing migration rather than safeguarding the rights of asylum seekers (Costello, 2004; Hunt, 2014). Building upon this framework, the concepts of “safe third country” and “first country of asylum” are integral to the EU’s Asylum Procedures Directive, which seeks to standardize asylum procedures across member states, ensuring efficient processing and limiting secondary movements within the bloc. These concepts are further underscored in Article 3 of the Dublin III Regulation, which requires asylum seekers to submit their claims in the first safe country they encounter upon entering the territory of the Dublin States.
This emphasis on claiming asylum in the first safe country reflects the EU’s efforts to streamline asylum processes and manage migration flows.Yet, under international law, there is no explicit or implicit requirement that asylum seekers must seek asylum in the first safe country they enter. While states are generally obligated to assess asylum claims within their jurisdiction, international legal instruments, such as the 1951 Refugee Convention, do not either expressly authorize or prohibit claiming asylum in the first safe country reached. In general, the concept itself is not considered to be in breach of states’ international obligations.
States adopt diverse approaches when it comes to the designation of “safe third countries.” While some incorporate predetermined lists of such countries within their national legal frameworks, others do not have such provisions. Italy, for example, had not previously incorporated a formal list of “safe third countries” in its asylum framework. However, this changed in 2018 with the adoption of a specified list of safe countries of origin, as introduced by Decree Law 113/2018. The list was amended by the Ministerial Decree of 9 March 2022, which temporarily suspended the application of the list to Ukraine until 31 December 2022, and was then later extended by the Ministerial Decree of 7 May 2024, which designated twenty-two countries as “safe countries of origin.” Under this decree, individuals originating from the designated countries are presumed not to face persecution, serious harm, or violations of their fundamental human rights; this presumption has been contested, with Italian courts seeking to play a more active role.
The Court of Rome’s recent ruling was a decisive challenge to the decree designating Egypt and Bangladesh as “safe” countries for asylum seekers, underscoring the necessity for individualized assessments in asylum cases. The Court rigorously examined the legal criteria governing such classifications under EU law, particularly referencing Article 37 of the Asylum Procedures Directive, which explicitly prohibits the designation of a country as “safe” in the presence of systemic human rights violations (Paragraph c, point 6). The judgment asserts that, while a country may be classified as generally safe, it is crucial to evaluate the unique circumstances and vulnerabilities of specific groups who might still be at risk of persecution within that country (Paragraph d, point 7).
The human rights violations reported in Egypt and Bangladesh contest the classification of these countries as “safe” and highlight the need for individualized assessments in asylum proceedings. This approach undermines the Ministry of Foreign Affairs and International Cooperation’s decree and may pose a threat to asylum seekers repatriated to these countries. This critical perspective aligns with earlier concerns raised by Italian courts, demonstrating a growing pattern of judicial opposition to the “safe country” designations. For instance, the Bologna Tribunal ruled that Tunisia could not be considered safe, citing the most recent country of origin information that revealed violent protests and unrest. After careful analysis, the Catania Tribunal similarly concluded that Tunisia no longer met the criteria for a “safe country.”
The Court of Rome’s ruling is also in line with previous objections raised by the Court of Florence, which similarly questioned the legitimacy of Italy’s regulation on safe countries of origin. The Florence Court first challenged the designation of Senegal in a 2020 judgment and later Tunisia in a 2023 judgment, asserting that these nations cannot be regarded as safe for all their nationals. Furthermore, the Florence Court contended that Italian legislation is incompatible with EU law, particularly in permitting the designation of a third country as a “safe country of origin” while also allowing exceptions for certain categories of individuals, as outlined in Article 2-bis, paragraph 2 of Legislative Decree 25/2008.
In light of the above, the Court of Florence submitted two preliminary references—both in May 2024—to the Court of Justice of the European Union (CJEU) regarding Italian legislation on “safe countries of origin” (currently pending): C-388/24, Oguta and C-389/24, Daloa). The Italian judges sought clarification from the CJEU on whether EU law should be interpreted in a way that precludes national legislation—specifically, Italian law—that allows for the designation of a third country as a “safe country of origin” while excluding certain categories of at-risk individuals. The issue raised by the Court of Florence is particularly significant in light of Regulation (EU) 2024/1348 on common procedures for international protection, which is due to take effect on 12 June 2026 and allows both the EU and its member states to designate third countries as safe countries of origin. Although this regulation introduces a somewhat different framework, it is expected that the CJEU’s resolutions regarding the cases referred by the Court of Florence will have a substantial impact on its interpretation.
It appears that recent judicial judgments in Italy are increasingly challenging the designation of “safe countries” for asylum seekers, particularly focusing on the lack of individualized assessments in asylum cases. The Court of Rome’s recent judgment, which questions the classification of Egypt and Bangladesh as “safe”, underscores the need to account for human rights violations and the specific vulnerabilities of certain groups. This aligns with earlier rulings from other Italian courts, such as those in Bologna, Catania, and Florence, which similarly rejected Tunisia and Senegal as “safe countries.” Collectively, these decisions criticize Italian legislation as incompatible with EU law, particularly where it permits the broad designation of safe countries while neglecting individual protections. This growing judicial movement reflects a critical reassessment of Italy’s asylum policies and emphasizes the importance of case-by-case analysis rather than blanket-country designations.
Alignment of Italian courts with the CJEU on the “safe third country” concept
The Court of Rome’s ruling aligns with the jurisprudence of the CJEU in reinforcing the connection between national court decisions and broader European legal standards for asylum and refugee protection. Specifically, the Rome Court’s reliance on the CJEU’s 4 October 2024 judgment—which asserts that a country can only be considered safe if it ensures safety across all regions and for all individuals without persecution, discrimination, or torture—illustrates how national courts draw from EU legal principles. This parallels other significant CJEU judgments on asylum, such as the 6 May 2008 judgment brought by the European Parliament against the CJEU’s authority over establishing a common list of safe countries of origin. Both cases reflect the crucial role of the CJEU in clarifying legal boundaries around “safe country” designations, demonstrating how national and EU-level courts influence the formulation and implementation of asylum policies across Europe.
The CJEU’s October 2024 judgment concerns two critical provisions of the Asylum Procedures Directive, specifically Articles 29 and 36, which outline a streamlined decision-making process for the designation of safe third countries of origin and safe European third countries. The CJEU ultimately annulled these provisions. This decision emphasized the importance of maintaining an institutional balance in the EU’s decision-making process and the delegation of powers. More specifically, its true importance lies in addressing key issues such as the secondary legal basis, the rule of law, and the legitimacy of decision making, particularly in politically sensitive areas like asylum policy. The Court’s decision underscored the need for robust legal foundations and procedural clarity when shaping policies that affect fundamental rights. This ensures that decision-making processes are not only legally valid but politically equitable. As a result, Italy’s decree on “safe third countries” appears to be inconsistent with the CJEU’s interpretation of “safe countries” and cannot fully align with EU legal standards.
The Rome Court’s judgment, therefore, reinforces the nexus between national court rulings and CJEU jurisprudence, thereby strengthening the relationship between national decisions and the evolving legal framework of the EU for asylum and refugee protection. It appears to reaffirm the ongoing significance of the CJEU’s interpretation of legal standards in influencing national policies and ensuring their conformity with EU law.
Summary of key observations
The concept of a “safe third country” within asylum law presents significant legal ambiguities that pose critical challenges to the protection of asylum seekers’ rights. The Court of Rome’s recent October judgment underscores these concerns by highlighting the lack of explicit criteria with which to determine what constitutes a “safe” country. This absence of clarity leads to inconsistent standards among states, which not only undermines the efficacy of asylum assessments, but heightens the risk of returning individuals to countries that fail to uphold fundamental safety and human rights standards.
The potential for political manipulation exacerbates this issue, as states may label certain nations as “safe” based on diplomatic relations or political considerations rather than on a rigorous, objective evaluation of conditions. Such practices can result in the wrongful return of asylum seekers to places where they face persecution or harm, thereby increasing the likelihood of refoulement. Additionally, the reliance on the “safe third country” framework threatens the principle of individualized assessments in asylum claims and often prioritizes administrative efficiency over the unique circumstances of each case. This shift undermines the legal obligation to protect individuals based on their specific situations, potentially violating their rights.
The vagueness surrounding the “safe third country” concept also complicates judicial oversight and accountability. Courts may struggle to challenge decisions made under this framework due to unclear standards, resulting in a lack of accountability for actions that could contravene international human rights obligations. Furthermore, the adoption of “ safe third countries” contributes to a fragmented asylum approach, leading to markedly different standards of protection among states. This fragmentation complicates states’ responsibilities to uphold international obligations and often prioritizes expediency over comprehensive protection measures.
Addressing these critical concerns necessitates the establishment of clearer definitions, consistent criteria, and robust safeguards. Such measures are essential to ensure that the fundamental principles of asylum law are upheld and that the rights of asylum seekers are effectively protected.
Baya Amouri is a postdoctoral Max Weber Fellow at the European University Institute (EUI) and is affiliated with the EUI Migration Policy Centre. She holds a PhD in Legal Studies, with a focus on forced migration, from the University of Szeged in Hungary.
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