CJEU ruling on ‘safe’ countries offers crucial legal protection to migrants
A recent judgment from the Court of Justice of the European Union (CJEU) on Italy’s plan to process asylum applications offshore has provided migrants with crucial legal protection.
The judgment, published in August, concerns the principle of ‘safe countries of origin’ and affects Italian Prime Minister Giorgia Meloni’s agreement with Albania, a non-EU country. Italy’s scheme is designed to repatriate migrants who have been picked up in the Mediterranean. ‘The CJEU judgment is the natural consequence of this latest attempt by a national government to outsource asylum processing and decide for itself – without the right to challenge – what is a “safe” country,’ says Alex Stojicevic, an officer of the IBA Immigration and Nationality Law Committee.
The case concerned two asylum seekers from Bangladesh, a country that Italy deemed ‘safe’ in the context of its immigration rules. Pursuant to the Italy-Albania agreement, the two individuals were being held in a detention centre in the latter country designed for those with limited chances of a successful asylum application and were to be repatriated through a fast-track procedure.
There were three strands to the Court’s conclusions. The first was to endorse the original orders of the Italian immigration judges who found that the migrants had to be sent back to Italy from Albania on the grounds that a country can only be deemed ‘safe’ by an EU Member State if it offers 'adequate protection for its entire population'.
However, new rules are coming into effect that will supersede this finding. The EU’s Pact On Migration and Asylum, which was adopted in summer 2024 and becomes applicable from June 2026, changes the notion of what’s considered a ‘safe’ country of origin. Under the Pact, a country of origin may be designated safe even if, for an individual applicant, there could be a threat posed to that person based on, for example, their religion or sexuality, or because they’re from a certain region.
The judgment is the natural consequence of an attempt by a national government to outsource asylum processing and decide for itself – without the right to challenge – what is a “safe” country
Alex Stojicevic
Officer, IBA Immigration and Nationality Law Committee
It’s the second and third elements of the CJEU’s judgment that appear set to provide legal protection for migrants, and in part explain why 16 EU Member States intervened in the case. The CJEU found that schemes such as that put in place by Italy will only be lawful to the extent that the process, and the designation by a Member State as to what is and isn’t a ‘safe’ country, can be properly and effectively challenged in the courts. Further, the sources of information, the data and evidence relied upon to reach any decision around the safety of a country must be accessible.
The immediate consequence for Italy is that the Albanian detention centre will be, for now, under-used. Ultimately, the new EU Pact will substantially increase the parameters of what might be considered a safe country for repatriating irregular migrants and thus provides Member States with greater room for manoeuvre to do so.
However, the CJEU judgment ensures these parameters will probably be subject to considerable challenge in the courts. ‘The buried treasure in the [CJEU judgment] is the effectiveness of a challenge, and access to documents,’ says Steve Peers, a professor of EU and human rights law at Royal Holloway, University of London. ‘With the new EU Pact, it might be easier to say a country is safe but it will be easier to challenge this in individual cases.’
Peers believes those challenges will probably turn into a debate about, for instance, the client’s religion or sexuality and a country’s treatment of this category. This is exactly what the 16 Member States that intervened in the CJEU case were afraid of, he believes. ‘As they see it, their internal procedures will be clogged up with legal challenges,’ says Peers.
According to Meloni, the CJEU is ‘claiming jurisdiction that does not belong to it […] The European Court of Justice has decided to delegate to any national judge the decision […] on the part of migration policy relating to the repatriation and expulsion of illegal immigrants.’
In the UK in August, a local council was successful in its application to the High Court to have a hotel in Epping, near to London, banned from housing irregular immigrants. The ruling was however overturned at the Court of Appeal. What followed was criticism, including by a senior lawmaker, of the judges involved in this and other immigration cases. The suggestion was that their backgrounds and personal views were influencing their rulings.
A major concern is that this rhetoric against the judiciary undermines the rule of law. ‘Over time, this position erodes the view that the courts are legitimate,’ says Stojicevic, who’s also Managing Partner at MKS Immigration Lawyers in Vancouver.
Despite the CJEU judgment, the combination of the new EU Pact coming into effect and a European Parliament that’s more hardline in its attitude to immigration means the EU appears set to take an increasingly restrictive approach on the issue. ‘We could see the Pact develop such that whole countries are declared safe and the rules being re-written to make it difficult to challenge that,’ says Stojicevic. The EU might even consider deportations, which ‘are a feature of the Canadian and Australian systems and, as we well know, are looked on favourably in the US right now,’ he adds.
Header image credit: 'Angels unawares' sculpture, by Timothy Schmalz. The sculpture sits in St Peter's Square, Vatican City, and depicts a group of migrants and refugees on a boat wearing clothes from diverse cultures and historical moments. Real_Life/AdobeStock.com