In the case of Alace and Canpelli (joined cases C-758/24 and C-759/24, 1.8.2025), the CJEU ruled on the application of the concept of “safe country of origin” and its consequences.
In the CJEU’s press release, the facts of this case are summarized as follows.
The case concerns two Bangladeshi nationals who were rescued at sea by the Italian authorities and taken to a detention centre in Albania under the Italy-Albania Protocol, which establishes a detention and repatriation centre on Albanian territory, but subject to Italian jurisdiction. Their application for international protection was examined under the accelerated border procedure by the Italian authorities, which rejected it as unfounded, on the ground that their country of origin is considered ‘safe’.
Under the Procedures Directive (2013/32), Member States may accelerate the examination of applications for international protection and conduct it at the border where those applications are made by nationals of countries considered to offer adequate protection. In Italy, that designation of third countries as safe countries of origin has been effected, since October 2024, by a legislative act. Under that act, Bangladesh is considered in Italy to be such a ‘safe country of origin’.
The applicants challenged the rejection decision before the Rome District Court, which made a reference to the CJEU in order to clarify the application of the safe country of origin concept and the Member States’ obligations in terms of effective judicial review.
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The findings of the CJEU in this case can be summarized as follows:
- EU law allows Member States to designate third countries as safe countries of origin by legislation, but such designations must be open to effective judicial review, ensuring compliance with the material conditions in Annex I of the Directive.
- The sources underlying such designations must be sufficiently accessible to applicants and courts to guarantee effective protection of rights; national courts may also rely on their own reliable information, provided both parties can comment on it.
- Until Regulation 2024/1348 takes effect (expected 12 June 2026, unless advanced), Member States may not designate as safe any country that fails to meet the material conditions for certain categories of persons.
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The main issue before the CJEU was about whether it makes any difference when the designation of a country as safe is the result of a legislative act. In essence, the CJEU’s response, based on an interpretation of Article 46 of the Procedures Directive, is that the legislative origin of this designation does not matter much: While there is no principled objection against such a designation being made through a legislative act, the effectiveness of the remedy nonetheless requires that the designation as safe country of origin, which has to comply with the criteria set out in Annex I to the Procedures Directive, must be open to judicial review in an individual case.
This in turn requires that the information on which the designation is based be made accessible both to the applicant and the competent judicial authority for adversarial comments. Since the designation as safe country is only a rebuttable presumption of adequate protection in the country of origin (§ 48), the reviewing court must carry out a full and ex nunc examination of both facts and points of law (§ 76). A question however arises as to the impact of the rebuttal of this presumption by a court in an individual case: is each reviewing court to have the power to rebut or not that presumption in an individual case? Might this give rise to a patchwork of approaches?
In any event, in light of the above requirements, an individual assessment which is open to judicial review is still required in cases which are decided on the basis of the safe country status. This would appear to significantly reduce the benefit to be expected from summary or accelerated procedures at the border or in transit zones.
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The above approach is in line with the one followed by the ECtHR, as exemplified by the case of S.H. v. Malta (37241/21, 20.12.2022), which is a striking illustration of why an individual review may be called for in cases decided in light of the safe country status.
The case concerned a Bangladeshi journalist who fled his country after reporting on electoral irregularities in his country and claimed that he was therefore exposed to threats and attacks. In Malta, he filed three successive applications for asylum which, according to the ECtHR, faced multiple significant procedural shortcomings, including:
- A lack of legal assistance
- A superficial credibility assessment
- The failure to consider relevant evidence
- A superficial and automatic judicial review, giving rise to stereotyped decisions given within 24 hours
- Delayed and ineffective notifications
- A lack of individualized risk assessment
- The ineffectiveness of the Constitutional redress proceedings, due the absence of an automatic suspensive effect pending these proceedings
As a result, the ECtHR ruled that returning S.H. to Bangladesh without a fresh assessment of the risks he might face back in his country of origin would violate Articles 3 (prohibition of ill-treatment) and 13 of the Convention (right to an effective remedy).
What makes S.H. v. Malta particularly relevant in the present context is the fact that S.H.’s application was processed in Malta, an EU Member State, under an accelerated procedure, with the authorities relying all along on the designation of Bangladesh as a safe country of origin.
The case also very well illustrates the interplay between EU law and the Convention in these matters. It is characterized by the ECtHR coming last in ruling on the merits of the case and assessing the use made by national authorities of the safe country of origin concept. In S.H. v. Malta, the ECtHR ordered a fresh assessment of the risks involved in returning the applicant, pending which the national authorities were requested, by way of an interim measure (Rule 39 of the Rules of Court), to stay the execution of the impugned deportation.
As the ECtHR put it: “while the Court need not enter into the ministerial decision designating Bangladesh as a safe country, … a full individual assessment is nonetheless called for in certain circumstances, despite such designation.” (§ 91) In D.L. v. Austria (34999/16, 7.12.2017), the ECtHR was even more explicit when stating: “the Court must agree with the applicant that as concerns his individual case, it was irrelevant whether Kosovo was declared a ‘safe country of origin’ by law. Such a declaration does not relieve the extraditing State from conducting an individual risk assessment.” (§ 59)
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Fortunately, as regards the assessment to be carried out by national courts relying on the safe country of origin concept, the requirements set out by the CJEU largely coincide with those of the ECtHR. Both European Courts indeed insist on the effectiveness which should characterize the review to which the application of the safe country of origin concept must be subject (S.H. v. Malta, § 78; Alace and Canpelli, §§ 65, 78, 80, 86), the concept of safe country of origin being only a rebuttable presumption of adequate protection in the country of origin (Alace and Canpelli, § 48). This notably requires the review to have an automatic suspensive effect (S.H. v. Malta, § 79; Art. 46(5) of the Procedures Directive).
However, while Article 46 of the Procedures Directive only states the right of applicants for international protection to an effective remedy, the CJEU, by reading this provision in the light of Article 47 of the EU-Charter, requires this remedy to be judicial in nature (§ 77). By contrast, under the Convention, such a remedy does not need to be judicial, but it should allow an independent, rigorous and prompt scrutiny (§ 79). For both European Courts, the reviewing authority should carry out a full and ex nunc examination of both facts and points of law (Art. 46(3) of the Procedures Directive).
Both European Courts also seem on the same line in considering that adequate information of the applicants and the reviewing authorities is key in ensuring the effectiveness of any review. While the ECtHR in S.H. v. Malta criticises the lack of a proper reasoning of the decisions rejecting S.H.’s applications for asylum (§§ 86-87), the CJEU explains the link between proper information and effectiveness of the review as follows:
“In the light of the case-law cited in paragraph 78 above, it must, therefore, be held that, in order for the judicial protection to be effective, both the applicant concerned and the court or tribunal seised must be able to have not only knowledge of the grounds for such a rejection, but also access to the sources of information on the basis of which the third country in question was designated as a safe country of origin.“ (§ 80)
In this context, the CJEU holds that the reviewing court must raise, on the basis of the information in the file and the information brought to its attention during the proceedings before it, a possible failure to have regard to the material conditions for the designation of a third country as a safe country of origin, set out in Annex I to that directive. That court may also do so by taking into account other information which it may itself have gathered, whether from public sources or from sources which it has requested one of the parties to the proceedings before it to produce (§§ 85-86).
The use of “may” suggests that gathering relevant information of its own motion is only an option for the reviewing court. However, this may not be enough under the Convention. In S.H. v. Malta the ECtHR indeed reiterated that in relation to asylum claims based on an individual risk, it must be for the person seeking asylum to rely on and to substantiate such a risk. However, if a Contracting State is made aware of facts relating to a specific individual that could expose him to a risk of ill-treatment in breach of the said provisions upon returning to the country in question, the obligations incumbent on the States Parties under Articles 2 and 3 of the Convention entail that the authorities carry out an assessment of that risk of their own motion (§ 88, with reference to F.G. v. Sweden).
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What is now the bottom line of this comparison of the Luxembourg and Strasbourg jurisprudences?
As always, the courts of EU Member States should apply EU law without breaching the Convention, since compliance with the latter when applying EU law can be challenged by way of an application before the ECtHR. The required modus operandi can therefore be summarized as follows:
- The application of the safe country of origin concept does not relieve the extraditing State from conducting an individual risk assessment (common requirement);
- A third country which fails to meet the material conditions in Annex I of the Directive for certain categories of persons cannot be considered safe (Luxembourg requirement);
- This risk assessment must be open to rigorous scrutiny (Strasbourg requirement) within the framework of an effective judicial remedy (Luxembourg requirement), which requires a full and ex nunc examination of both facts and points of law (common requirement);
- This judicial remedy must have an automatic suspensive effect (common requirement);
- The reviewing courts and the applicants must be provided with adequate information of the grounds for a rejection of an application for international protection based on the safe country of origin concept (common requirement), and with access to the sources of information on the basis of which a third country in question was designated as a safe country of origin (Luxembourg requirement);
- The obligations incumbent on the States Parties under Articles 2 and 3 of the Convention entail that the authorities carry out an assessment of that risk of their own motion (Strasbourg requirement).
This post is titled: “How safe is the safe country or origin concept?” In light of cases such as S.H. v. Malta, it seems that the answer must be: less safe than one might expect.