From Flawed Country Report to Rule of Law Crisis? Safe Countries of Origin Case-Law and its Impact on Asylum Policies

The safe country of origin concept (“SCO”) has once again become a topic of discussion on the EU level. Not only does it form a part of the new Pact on Migration and Asylum, but it is also subject to several preliminary references at the European Court of Justice. Most recently the ECJ decided on the case C-406/22 and cleared up several questions regarding the use of the SCO concept, notably designating countries as safe with personal and territorial exceptions and the possibility for ex officio judicial review. While it might initially seem unclear why the SCO concept has resurfaced as a “hot topic”, a closer look at its application in Czechia, where the first preliminary reference originated, offers some clarity. In October 2021 the Regional Court in Brno (the same court that later posed the preliminary reference) decided on a case of an Indian national who applied for international protection and was rejected by the asylum authority. In Czechia, India is considered an SCO. At the time, the safety assessment of India consisted of a five-page report which, according to the court, made it seem that India does not fulfil most of the safety criteria in Annex I of the Procedures Directive. Based on its assessment the court concluded that India cannot be considered an SCO and quashed the decision of the asylum authority. This ruling marked the first instance in which a Czech court expanded the scope of judicial review beyond merely considering whether the applicant had rebutted the presumption of safety, instead questioning the very designation of the country as an SCO. Since then, several other SCO designations have been reviewed by the Czech courts, which brought forward other issues connected to the use of the SCO concept and resulted in the ECJ judgment in the case C-406/22. This case then heavily influenced the approach of Italian courts towards the Italy-Albania protocol and rendered this deal quite dysfunctional. However, not only the judicial power was influenced, but the executive power as well. In 2023 the Czech asylum authority amended the Czech SCO list and removed territorial exceptions from countries designated as safe in reaction to the preliminary reference. In Italy, the use of the case C-406/22 by Italian courts sparked a significant conflict between Italian political representatives and Italian judges, leading to warnings about rule of law backsliding. The aim of the paper is to introduce how the courts have influenced the Member States’s approach towards the SCO concept and what can be expected in the future. With the Asylum Procedures Regulation on the horizon, which retains the use of the SCO concept and introduces a possibility of an EU-wide SCO list and the fact that the ECJ introduced an obligation of national courts to consider SCO designations ex officio, it is clear that national courts and the ECJ will play an important role in shaping SCO policies in the upcoming years as well.