On 18 October 2024, the applicant, a national of Bangladesh, challenged the rejection of his asylum application as manifestly unfounded, based on his nationality from a designated safe country of origin, and requested the suspension of the contested decision. The Tribunal of Bologna considered it necessary to clarify whether the legal conditions for processing the applicant's asylum claim under an accelerated procedure, based on the designation of Bangladesh as a safe country of origin, were met in the present case.
The tribunal observed that several courts have interpreted the CJEU judgment in CV v Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky (C-406/22, 4 October 2024), as confirming the principle that national courts have a legal obligation to disapply a third country's designation as a safe country of origin if evidence demonstrates that specific groups within the country face a real risk of persecution or serious harm, with no adequate internal protection available. According to these lower courts, the CJEU's judgment affirms that national courts must assess the substantive conditions for designating a country as safe, even in the absence of explicit legal exclusions. If evidence reveals such risks, the court must review the lawfulness of the designation, regardless of whether the designating state has specified exceptions. The tribunal held that in response to the CJEU's judgment in Case C-406/2022, the Italian Government acted urgently to designate safe countries of origin, interpreting the ruling restrictively by arguing that it did not exclude exceptions for certain categories of persons. The tribunal noted that Decree Law No 158/2024 amended Article 2-bis of Legislative Decree No 25/2008 to establish a list of 19 countries deemed safe, without exceptions for specific territorial areas or categories of individuals. The Legislative Decree justifies the use of an emergency decree by the 'extraordinary need and urgency' to designate safe countries and explicitly references the CJEU's judgment in Case C-406/2022, which excluded countries from the safe country of origin list due to specific regions not meeting safety conditions (Cameroon, Colombia, and Nigeria). It affirmed that the emergency decree was a political decision to designate safe countries of origin, despite international reports indicating persecution or harm, as reflected in the new Article 2-bis(1) of Legislative Decree No 25/2008, which seeks to maintain Italy's expanded list of safe countries while establishing special provisions for Albania. Moreover, according to the tribunal, the Italian Government's decision to create a list of safe countries of origin through a decree-law, rather than an interministerial decree, was based on the view that the national court's duty to assess the conformity of the designation with European law is limited to administrative acts; in contrast, when the designation is made through a political act, such as a legislative decree or ordinary law, judicial review is either reduced or does not apply.
The Tribunal of Bologna highlighted an existing conflict in national case law regarding judicial review of safe country designations. In July 2024, in Applicant v Territorial Commission of Rome, the Tribunal of Rome referred a question to the Court of Cassation on whether courts must rely on the interministerial list or assess a country's safety based on updated information. In addition to this, another conflict arose concerning the duty of courts to disapply national provisions that conflict with EU law. The tribunal found a conflict of interpretation between national and EU legal standards, affecting both the courts and national authorities tasked with applying EU law, leading it to refer questions to the CJEU.
Firstly, the tribunal questioned whether the designation of a third country as safe is permissible under EU law in the presence of widespread and ongoing persecution or serious harm against specific groups, despite the absence of such risks for the majority of the population. The tribunal affirmed that the “possibility of proving that there is generally and constantly no persecution or serious harm” must not be interpreted to mean that a country where the majority of the population lives in safety can be automatically considered entirely safe. It highlighted that international protection is meant to safeguard minorities at risk of persecution, as history shows that even in otherwise "safe" countries, such as Nazi Germany or Fascist Italy, minorities can face severe harm. The tribunal referenced the French Council of State's decision in Associations des avocats ELENA and others (Cases No 437141, 437142 and 437365, 2 July 2021), which found the designations of Senegal and Ghana as safe countries unlawful due to the persecution of LGBTQ+ persons, emphasizing the requirement that security must be 'generally and uniformly ensured for men and women, regardless of sexual orientation'. It also referenced the UK Supreme Court's judgment in R v Secretary of State for the Home Department (Case 2022/0021, 4 March 2015), which invalidated Jamaica's designation as a safe country due to the endemic persecution of LGBTIQ individuals, affirming that a country cannot be considered safe for entire categories of people, even if it is generally safe for the majority of the population. The tribunal specified that, in both cases, no exclusion clause for LGBTIQ+ individuals had been introduced; however, due to the persecution of LGBTIQ people, the countries were deemed ineligible for inclusion in the national list of safe countries of origin. Consequently, the tribunal held that the shortening of the first instance procedure is justifiable only when there is no persecution of minority groups in the country of origin. For those fleeing widespread persecution, it is unreasonable to expect them to quickly prove their membership in a persecuted group, given the trauma and cultural barriers they may face. The tribunal cited the example of women from countries with endemic human trafficking, who are often trafficked upon arrival, as well as women and LGBTIQ individuals from countries with endemic gender-based violence, forced marriages, genital mutilation, or persecution based on sexual orientation or gender identity. It also specified that, in cases of systematic persecution or harm to minorities, the entire population may be at risk, as persecution often affects not only the targeted minority but also those connected to them, even if they are not directly part of the group. With regard to Bangladesh, the tribunal found a contradiction in its designation as a safe country. While the "country file" from May 2024 identified specific groups at risk—such as LGBTIQ individuals, victims of gender-based violence, ethnic and religious minorities, political dissidents, and climate-displaced persons—and recommended exceptions to Bangladesh's designation as a safe country, the final decision of October 2024 contradicted this, listing Bangladesh as a safe country without any exceptions. This discrepancy between the preparatory reports and the final designation raised concerns about the accuracy and consistency of the country's classification. According to the tribunal, this inconsistency reflects the political approach behind Decree Law No 158/2024, which prioritizes migration control over the security of minorities. The court held that a correct interpretation of the recast Asylum Procedures Directive (recast APD) should exclude a country from the safe list if there is widespread persecution of minorities, regardless of the safety of the majority.
Moreover, the tribunal questioned the court's power and duty to disapply national provisions that conflict with European law. This duty was established by the CJEU's judgment in Case C-406/2022, which recognized the obligation of courts to raise issues of non-compliance with European principles, even in the absence of a plea in law. The tribunal raised the question of whether this power and duty of disapplication applies to acts like Decree Law No 158/2024, where the government has designated safe countries through a primary legal act, emphasizing the "political" nature of the designation and arguing that it should not be subject to judicial review. The tribunal emphasized that EU law has direct effect, meaning national courts must apply European rules and disregard conflicting national provisions, provided the EU law is clear, precise, and unconditional. It held that national acts inconsistent with EU law should not be applied, but it highlighted the need for clarification from the CJEU due to a significant conflict between various authorities interpreting EU law.
The tribunal requested the adoption of an expedited or urgent procedure under Articles 105 and 107 of the Rules of Procedure, citing the urgency of the case due to its impact on international protection, asylum rights, and the Italy-Albania agreement. It justified the need for urgency by highlighting the potential irreparable harm caused by interpretative uncertainty, particularly regarding the risks to asylum applicants and the administration if the case proceeds under the ordinary procedure. Specifically, applicants would face irreparable violations of their fundamental rights, including the right to an effective remedy, the right to remain in the country during proceedings, the right to be heard by the court, and the right to maintain contact with their lawyer. They would also face unlawful interference with their freedom of movement, forced transfers, and improper handling of their applications, particularly under the Italy-Albania protocol. On the other hand, the administration faces risks of irreparable damage due to the potential for complex decisions regarding asylum applications under current legal uncertainty, as well as the challenges of implementing the Italy-Albania agreement in ways that may contravene EU law. Finally, the tribunal argued that the urgency is further compounded by a serious institutional conflict, with some viewing designation acts as "high-policy acts" beyond judicial review, leading to a crisis that has been widely reported in the European press. While the CJEU cannot resolve such institutional conflicts, the tribunal emphasized that the urgency of the ruling arises from the significant harm caused by these conflicting legal interpretations.
Hence, the tribunal granted the suspension of the proceedings pending the preliminary ruling and referred the following questions to the CJEU:
- Under EU law, and in particular Articles 36, 37, and 46 of the recast Asylum Procedures Directive (APD) and Annex I thereto, should the criteria for determining the security conditions underlying the designation of a third country as a safe country of origin be based on the absence of systematic and general direct persecution of members of specific social groups and the lack of real risks of serious harm, as defined in Annex I to the recast APD? Specifically, does the presence of forms of persecution or exposure to serious harm affecting a specific, difficult-to-identify social group (such as LGBTIQ persons, ethnic or religious minorities, women exposed to gender-based violence or trafficking, etc.) exclude such designation?
- Does the principle of the primacy of European law, as established in the consistent case-law of the CJEU, require that, in the event of a conflict between the provisions of the recast APD on the conditions for the designation of a third country as a safe country of origin and national provisions, the national court is always obliged not to apply those national provisions? In particular, does this duty of disapplication extend even where the designation is made by primary legislation, such as ordinary law?