On October 25, judges from the Bologna court requested that the Court of Justice of the European Union clarify the criteria for designating a non-EU country as safe, citing “significant divergences” and “interpretative conflicts” within the Italian legal system. They also argued against labelling entire countries as safe when there is evidence of minority persecution.

Why is this significant: The move challenges the Italian government’s efforts to circumvent judicial opposition to its migrant agreement with Albania.

Context: The first migrants sent to processing centers operated by Italy in Albania in early October were repatriated to Italy after Roman judges declined to authorize their detention in these centers. 

The judges in Rome cited an EU Court ruling stipulating that countries designated as “safe” for returning rejected asylum seekers must be safe in their entirety—not only in specific regions. Italy, however, has established a list of safe countries with exceptions for certain groups, such as the LGBT community facing persecution.

Under Italian law, a migrant arriving from a country considered safe can be detained, based on a decree adopted in March 2023.

The Italy-Albania protocol applies specifically to these people, who are transferred to centres in Albania, while their asylum applications are processed by the Italian government under an accelerated procedure.

After the Roman judges declined to authorize the detention of the first migrant in the centers in Albania, the government swiftly amended the law, eliminating the previous guidelines.

In response to these amendments, the Bologna judges argued in their request to the EU Court that it is inappropriate to designate entire countries as safe when there is evidence of minority persecution.

“The system of international protection is inherently a legal framework intended to safeguard minorities at risk of persecution, whether from the state or other agents,” the judges wrote.

They added that “paradoxically, Nazi Germany could be considered extremely safe for most of the German population: apart from Jews, homosexuals, political dissidents, Roma, and other minority groups, over sixty million Germans enjoyed a high level of security. The same could be said for Italy under the fascist regime.”