The applicant lodged a request under Article 31bis, 4th comma of Legislative Decree (LD) No 25/2008 to suspend the decision taken by the Territorial Commission for the Recognition of International Protection of Rome. The Territorial Commission dismissed his application for international protection as manifestly unfounded, as per Article 28b(1)(b) of LD 25/2008, on grounds that the applicant came from a country deemed safe under Article 2a of the same decree. The applicant appealed to the Tribunal of Rome, arguing that Tunisia could not be considered a safe country due to changes in its general situation.

The Tribunal of Rome recognised that Tunisia (as well as Egypt) presents conditions that may distinguish it from other countries classified as 'safe'. It noted issues such as persecution, violence, discrimination, and suppression of political dissent and fundamental freedoms linked to the national political-institutional regime and its officials, which conflicts with the standards set by the recast Asylum Procedures Directive (recast APR) and LD 25/2008. The tribunal referenced various sources, including the EUAA, highlighting significant human rights concerns in Tunisia. These included extensive presidential powers under the 2022 Constitution, a persistent state of emergency, arbitrary arrests, erosion of judicial independence, increased repression of political dissent, media restrictions, and violence against LGBTQ individuals and women. The May 2024 Tunisian country sheet detailed severe issues such as inadequate protections for legal remedies, personal freedom, fair trials, and fundamental rights, with significant restrictions on freedoms of expression, religion, assembly, and LGBTIQ+ rights.

The tribunal addressed the question of whether Tunisia, despite being listed as a 'safe country' in the Ministerial Decree of 7 May 2024, could still be considered 'unsafe'. If so, the suspension requested by the applicant should be granted to allow for an appeal under Article 35a (3) of Legislative Decree No 1125/2008 and determined that conditions were met for referring the case to the Court of Cassation.

The tribunal questioned the impact of an interim suspensive decision on the assessment of international protection. It noted that removal of an asylum seeker before a final decision could hinder their ability to obtain protection if the conditions are met. The tribunal emphasised that according to Article 2 of LD 251/2007, a refugee is a person outside their country due to a well-founded fear of persecution, making their presence crucial for asylum applications. The tribunal underlined the importance of the interim decision and its impact on the merits of the case. The tribunal also highlighted the problematic trend of dismissing appeals as manifestly unfounded, which undermines the European principle of automatic suspensive effect of appeals. Considering the classification of many countries as "safe" in the Decree of May 2024 Decree, the tribunal held that there was an urgent need for individual assessments on safety for applicants to uphold their rights.

The tribunal asked the Court of Cassation to clarify whether, when an applicant challenges the 'safe' status of their country of origin or does not specifically challenge it, the adjudicating authority must verify this status with current information, regardless of the country's inclusion in the Ministerial Decree on Safe Countries. This issue is especially relevant for accelerated and border procedures, including the Italy-Albania Protocol under Law No 14/2024, which falls under the tribunal's jurisdiction. The tribunal stressed that resolving this interpretative doubt is crucial for determining the legality of detaining individuals in Albania, as only those from countries deemed "safe" under Article 28a(2) (ba) of LD 25/2008 and related laws can be detained there.

As regards the present case, the tribunal decided to allow the suspension of the contested measure until the Court of Cassation delivers its decision, ensuring that the asylum seeker retains his provisional residence permit and its periodic renewals.

Finally, the court referred the following question for clarification by  the Court of Cassation: “whether, in cases where an applicant from a country listed as "safe" under the interministerial decree has their asylum claim rejected as manifestly unfounded by the Territorial Commission for the Recognition of International Protection, the ordinary judge is strictly bound by the list of safe countries approved by the decree. Alternatively, the court questioned whether the judge, given their duty of investigative cooperation, must evaluate whether the listed country is genuinely safe based on current, updated information on countries of origin (COI) and in accordance with European and national legislation”.

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