European Court Puts Further Restrictions on Member States’ Powers to Shape Migration Policies

The Italian case – which country can be considered “safe”?

On August 1, the CJEU issued important rulings crucial for EU migration policy. The first of these rulings (ref. C-758/24 and C-759/24) concerns two Bangladeshi nationals who, after being rescued by Italian authorities in the Mediterranean Sea, were transferred to a detention center for refugees in Albania, where they applied for international protection in Italy.

Of particular relevance to this case is Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, under which Member States may accelerate the examination of applications and carry it out at the border if the applications are made by third-country nationals considered to be from a safe country of origin.

Article 37(3) of Directive 2013/32/EU states that a third country may be considered a “safe country of origin” if it meets the criteria set out in Annex I to that act. The Annex specifies that this category may include countries where, based on the legal situation, the application of the law within a democratic system, and the general political circumstances, it can be demonstrated that there is no persecution within the meaning of Article 9 of Directive 2011/95/EU.

According to that directive, in order for an act to be considered persecution, it must meet certain conditions, including, in particular:

• be sufficiently serious in nature or repetitive to constitute a serious violation of fundamental human rights, in particular those rights from which derogation is not permitted under Article 15(2) of the European Convention on Human Rights; or
• be the accumulation of various measures, including human rights violations, which are sufficiently serious to affect an individual in a manner similar to that described above.

The applications submitted by the detained Bangladeshi citizens were examined under this procedure. The Bangladeshis ultimately received a negative decision, as their country of origin is considered a “safe country of origin” under an Italian decree with the force of law, amended in 2024.

This legal act contains a list of countries that the Italian legislature considers to be safe countries of origin and, therefore, ineligible for granting international protection to their citizens. Importantly, however, applicants may demonstrate that there are serious reasons to consider their country unsafe due to their specific personal situation (thus rebutting the presumption of safety).

Subsequently, the Bangladeshi citizens decided to challenge the decision before one of the courts (Tribunale ordinario di Roma). That court, in turn, referred the matter to the Court of Justice of the European Union (CJEU) for a preliminary ruling on the application of the concept of a safe country of origin and the obligations of Member States regarding effective judicial review. The court pointed out that, unlike the previous provisions, the amended law of 2024 does not specify the sources of information on which the Italian legislature relied when assessing the country as safe. Therefore, in the opinion of the Italian court, neither the judicial authority nor the applicant had the possibility to challenge and review the legality of such a presumption of safety by examining, in particular, the origin, binding force, reliability, relevance, and completeness of those sources.

In its judgment of August 1, the CJEU indicated that EU law does not preclude a Member State from recognizing a third country as a safe country of origin by means of legislation, but only on the condition that such recognition is subject to effective judicial review. The Court pointed out that this review should concern compliance with the substantive conditions for such recognition laid down in Annex I to the Directive, in particular where an appeal has been lodged against a decision rejecting an application for asylum under the accelerated procedure applicable to nationals of countries recognized as such. In the CJEU’s view, the sources of information on which such recognition (of a country as a “safe third country”) is based must be sufficiently accessible to both the applicant and the competent court. The CJEU emphasized that this is to ensure effective judicial protection, enabling the applicant to effectively exercise their rights and the national court to exercise its power of review.

Importantly, the CJEU ruled that until the entry into force of the new regulation (adopted as part of the EU Pact on Migration, also known as the Migration Pact, and intended to replace Directive 2013/32/EU), a Member State cannot consider a third country that does not meet the conditions for such recognition in relation to certain categories of persons as a “safe” country of origin. In other words, a third country can only be considered a “safe country of origin” if it provides adequate protection to all its residents.

The Irish case – obligation to provide accommodation

On the same day, the CJEU issued another equally important judgment relating to the shaping of migration policy by EU Member States. The background to case C-97/24 is the situation of two men, refugees from Afghanistan and India, who were not granted accommodation by the Irish authorities on the grounds that there were no places available in reception centers, regardless of the availability of individual and temporary accommodation. The lack of such accommodation meant that they were unable to receive the daily allowance provided for under Irish law.

Due to the hardship resulting from this situation (the need to sleep on the street, problems with obtaining food, and maintaining hygiene), they decided to bring an action for damages before the High Court of Ireland against the Minister for Children, Equality, Disability, Integration and Youth, and the Attorney General.

The defendants acknowledged that there had been a violation of European Union law but invoked force majeure, which they claimed consisted in the temporary exhaustion of accommodation capacity for persons seeking international protection on its territory due to the mass influx of third-country nationals following the invasion of Ukraine.

The High Court then referred the matter to the CJEU for a preliminary ruling on whether a state could be exempted from liability in such circumstances, despite its obligations under Directive 2013/33/EU and the Charter of Fundamental Rights of the European Union.

In its judgment of August 1, the CJEU pointed out that, under the provisions of the aforementioned directive, Member States are required to provide material reception conditions to persons seeking international protection. Therefore, Ireland could not invoke the influx of refugees from Ukraine as an exceptional circumstance. “A Member State which has not guaranteed, for a number of weeks, access by an applicant for international protection to the material reception conditions provided for by Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection may not avoid liability under EU law by pleading temporary exhaustion of the housing capacity normally available in its territory for applicants for international protection, owing to an influx of third-country nationals seeking temporary or international protection; an influx which, because of its significant and sudden nature, was unforeseeable and unavoidable,” the CJEU stated in its judgment.

The need to change the law

The judgments handed down by the CJEU have been widely criticized, including by the Italian government and conservative circles across Europe. According to analysts at the Ordo Iuris Institute, however, the brunt of criticism should be directed primarily at the secondary legislation that provides the basis for such judgments.

The main problem is the failure of European Union law to adapt to the phenomenon of mass migration. An example of this is the concept of a safe country of origin, as regulated in Directive 2013/32/EU, which was the subject of one of the judgments in question. The definition in question is too narrow, as it allows a large number of countries to be considered ineligible for this category, which in turn exacerbates the migration problems currently facing the European Union. Ordo Iuris also emphasizes that a significant part of the problems in this area has not been resolved in the recently adopted Pact on Migration and Asylum, which establishes a new legal framework for managing these phenomena at the European Union level, often repeating the mistakes of previous legal acts.

For a long time, the Institute has been calling for Poland to begin a process aimed at far-reaching changes to treaties and international legal regulations governing asylum and migration. This remark also applies to European Union law. These systems are not adapted to the contemporary challenges associated with the phenomenon of mass and uncontrolled migration. Therefore, from the point of view of the issue in question, it is necessary to amend the treaties and the law of the European Union.

Patryk Ignaszczak – Analyst at the Ordo Iuris Center for International Law.

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