Migrants, Supreme Court: judge can disapply ministerial decree on safe countries

It is up to "the democratic circuit of popular representation to make the political choice to provide, in accordance with European discipline, a differentiated regime for examining asylum applications for foreigners coming from countries of origin designated as safe". Therefore, the judge "cannot replace the Minister of Foreign Affairs" nor "can he annul the ministerial decree with erga omnes effects". However, the judge 'may assess the existence of the conditions for the legitimacy of that designation, and possibly disapply in part qua the ministerial decree containing the list of safe countries'. This was stated in a ruling by the first civil section of the Court of Cassation in response to a preliminary reference by the Court of Rome on 1 July.

A measure that therefore refers to the legislation in force before the government approved the new decree with the list of safe countries in October and on which the Court of Cassation will still have to pronounce: the executive has in fact appealed against the failure to validate the detentions of migrants, including those in the centres in Albania. In the hearing that took place a few days ago, the public prosecutor asked to suspend the judgement on the issue pending the ruling of the Court of Justice of the European Union, and the judges must file their decision.

While waiting to see what the reading will be, the judges, referring to another case involving a migrant, nevertheless indicated some firm points. "In reiterating that the ordinary judge is the guarantor of the effectiveness, in the individual case before him, of the asylum seeker's fundamental rights," the supreme court explained, "it is reserved for the democratic circuit of popular representation to make the political choice to provide, in accordance with European law, a differentiated regime for examining asylum applications for foreigners coming from countries of origin designated as safe.

"The ordinary court," the Court continued, "cannot therefore replace the Minister for Foreign Affairs. Nor can it annul with effect erga omnes the ministerial decree'. The court may, however, 'in the regulatory environment prior' to the government's latest decree-law, 'on full and ex nunc examination, assess the existence of the conditions for the legitimacy of that designation, and possibly disapply in part qua, the ministerial decree containing the list of safe countries (according to the discipline ratione temporis), where the designation made by the government authority manifestly conflicts", having regard to Article 37 of Directive 2013/32/EU, "with the qualification criteria established by European or national legislation".

Moreover, the judges of the Court concluded, "to guarantee the effectiveness of the appeal...the court retains the institutional cognitive power...where the applicant has adequately inferred insecurity in the specific circumstances in which he finds himself. In the latter case, therefore, the government's assessment of the safe nature of the country of origin is not decisive, so that a problem of disapplication of the decree does not arise'.