The ‘Revolutionary’ Italy-Albania Deal on the ECJ
Right here we go once more. Eight months after first exploring the authorized contours of the “progressive” Italy-Albania Protocol and its momentary suspension following the Court docket of Rome’s refusal to validate the detention of the primary group of asylum candidates transferred to Albania, this publish turns to a brand new and probably game-changing growth: a preliminary reference to the European Court docket of Justice (ECJ), submitted by the Italian Court docket of Cassation on 20 June 2025 (and made out there right here). The referral raises doubts in regards to the compatibility of the scheme with each the Return Directive (RD) and the Asylum Procedures Directive (APD). This transfer provides recent authorized uncertainty to a deal already underneath intense scrutiny and will considerably influence its implementation.
In what follows, I’ll first present a quick overview of the modifications made to the Protocol’s implementation following the preliminary judicial stalemate. I’ll then unpack the novelties of the latest referral, after which discover what it would imply for the way forward for Italy’s experiment.
Revisiting the Italy-Albania deal
Within the final publish, I examined the early authorized challenges to the Italy–Albania Protocol on offshore asylum processing, which permits Italy to conduct an accelerated border process in Albanian territory for people rescued in worldwide waters, and permits for the return of rejected candidates. On the time, implementation of the Protocol had simply begun: the amenities in Shengjin and Gjader had been operational as of October 14, and two teams of asylum seekers had already been transferred to Albania.
The primary judicial blow to the Protocol got here on 18 October, when the Court docket of Rome refused to validate the detention of 12 asylum seekers from Egypt and Bangladesh. The Court docket discovered that the accelerated border process had been unlawfully utilized, drawing on a latest ECJ judgment which prohibits designating a 3rd nation as a “protected nation of origin” (SCoO) if territorial exceptions exist. Making use of this reasoning analogically, the Court docket of Rome concluded that since Egypt and Bangladesh had been listed with category-based exceptions, the candidates couldn’t lawfully be subjected to the accelerated process. Consequently, their detention was deemed illegal and the candidates had been returned to Italy. In response, the federal government issued a regulation decree on 24 October amending the SCoO record by eradicating territorial exceptions, whereas retaining group-based ones. It additionally restructured the appeals course of by rerouting judicial evaluate of detention selections by means of appellate courts, arguably to safe extra beneficial outcomes. That is the place the earlier evaluation left off.
Since then, Italian courts have submitted a sequence of preliminary references to the ECJ, all basically searching for clarification on whether or not the Court docket’s judgment of 4 October must also be interpreted as precluding category-based exceptions—not simply territorial ones—in SCoO designations. The Advocate Basic’s Opinion, nonetheless, means that such exceptions could also be permissible, offered sure situations are met (for additional evaluation, see right here).
Whereas awaiting a closing ruling, Italy has suspended the interception and switch of asylum seekers to Albania. Within the meantime, the character of the amenities in Albania has shifted: to keep away from leaving the centres empty, the federal government issued a brand new decree—later transformed into regulation—authorising the switch of irregular migrants from pre-removal detention centres on Italian territory (CPRs) to Albania, pending repatriation. This transfer has reignited authorized debate, this time specializing in its compatibility with each the Return Directive and the Asylum Process Directive.
The authorized core of the Cassation Court docket’s referral
The preliminary reference submitted by the Italian Court docket of Cassation raises two central authorized questions relating to the compatibility of Italy’s implementation of the Protocol with EU regulation. First, it asks whether or not the RD precludes a nationwide provision that allows the switch of migrants from Italian CPRs to Albania—even within the absence of a concrete and identifiable prospect of return. Second, if such transfers are discovered suitable with EU regulation, the Court docket seeks clarification on whether or not Article 9(1) of APD, which requires that candidates be allowed to stay within the Member State for the aim of the asylum process, prevents the detention of a migrant who, as soon as transferred to Albania, submits an asylum request presumed to be merely instrumental in avoiding removing.
What stands out is that, in contrast to the earlier referral, which took with no consideration the applicability of EU regulation to the asylum processing in Albania, the difficulty is now instantly tied to the territorial attain of the EU acquis. A lot of the EU’s secondary laws on asylum and return is territorially sure, making use of throughout the territory and the geographical borders of Member States. But underneath the Protocol, migrants are transferred to a 3rd nation, Albania, though the settlement formally commits to making use of Italian and EU requirements “as if” the people had been on Italian soil. For the primary time, the Court docket of Cassation’s query acknowledges a key authorized pressure: does the formal extension of EU norms to a 3rd nation, by means of a authorized fiction that equates its territory with that of a Member State by way of a bilateral settlement, suffice to ensure compliance with EU regulation?
An inadequate authorized fiction
The Italian court docket doesn’t seem to agree. A lot in keeping with arguments made elsewhere, the Italian judges acknowledged that there exists a sufficiently shut connection between the EU authorized order and the scenario of migrants in Albania—whether or not they’re candidates for worldwide safety or third-country nationals awaiting removing. This connection entails that the requirements laid down in EU directives, even when unilaterally utilized in a 3rd nation, have to be concretely revered. Failure to take action dangers undermining the EU’s goal of creating a Widespread European Asylum System (Article 78 TFEU) and a unified immigration coverage, together with the removing and repatriation of unauthorized residents (Article 79 TFEU), which seems to not be totally revered within the procedures at the moment carried out in Albania.
Relating to compliance with the requirements set out within the RD, the Court docket noticed that it stays unclear how the switch and detention of returnees in Albania serves the Directive’s goal of facilitating repatriation to their nations of origin. This uncertainty raises considerations in regards to the legality of such deprivation of liberty. With regard to the APD, which turns into relevant if returnees transferred from Italian CPRs to Albania submit an software for worldwide safety there, the Court docket expressed doubts about whether or not the authorized fiction of treating the centres in Albania as Italian border zones is ample to ensure the applicant’s proper to stay within the territory—together with on the borders—whereas their declare is being processed. These considerations are notably acute given the probably decrease degree of safeguards and rights out there in a 3rd nation, regardless of the formal territorial equivalence established by the settlement (for an evaluation of the primary points, see right here).
In sum, the referral by the Italian Court docket of Cassation brings to the forefront the unresolved authorized complexities surrounding the extraterritorial software of EU asylum and migration regulation. At its core, the case exams the bounds of the EU authorized order’s territorial scope and questions whether or not authorized fictions embedded in bilateral agreements can substitute for real ensures and guarantee efficient entry to rights derived from EU regulation. By scrutinizing the Albania Protocol in gentle of each the RD and the APD’s scope of software, the Court docket alerts its concern that the mere formal invocation of EU requirements is inadequate when there’s a tangible threat of diminished rights and safeguards. In the end, the referral challenges the idea that procedural compliance on paper can compensate for substantive shortcomings in follow, notably when authorized obligations are displaced past EU borders.
The way forward for externalized return hubs
On 11 March 2025, the European Fee introduced a proposal to repeal the Return Directive and substitute it with a Regulation establishing a standard system for the return of third-country nationals staying illegally within the Union. The proposal broadens the definition of “nation of return,” permitting Member States to switch returnees to 3rd nations they’ve an settlement or association with to simply accept the third-country nationwide (Article 4(3)(g)). If adopted in its present type, this provision may pave the best way for the institution of so-called return hubs—a controversial coverage software that has already drawn comparisons to the Italy–Albania settlement. Nevertheless, because the Court docket of Cassation itself acknowledged, substantive variations stay between the 2 fashions, which means that the ECJ’s reply to the present referral could supply solely restricted steerage for addressing the broader authorized points raised by return hubs as envisioned underneath the proposed Regulation.
The idea behind return hubs is to outsource the return course of to a 3rd nation that isn’t the returnee’s nation of origin, however which can both facilitate their onward journey or allow them to stay. This could be sometimes achieved by means of the issuance of a return choice directed at that third nation, which means that after the person is transferred, the Member State’s authorized obligations would, in precept, stop. Against this, as mentioned, the Italy–Albania mannequin includes the switch of migrants to Albania pending repatriation to their nation of origin, whereas Italy retains jurisdiction and, consequently, accountability. Notably, no return choice is issued for Albania; as a substitute, returnees detained in Italian CPRs are handled as in the event that they had been internally transferred to a different facility inside nationwide territory. This distinction implies that even when the ECJ had been to search out the Italian scheme incompatible with EU regulation, various fashions for shifting accountability to 3rd nations—whether or not within the context of asylum or return—would stay open for debate, regardless of their excessive price and predictable low long-term effectiveness.
An entrenched dedication to shift accountability
What this complete authorized and political saga reveals is that the EU’s preoccupation with returns and externalisation shouldn’t be a transient development however a deeply entrenched coverage orientation. Regardless of judicial pushback and the authorized uncertainties uncovered by instances such because the UK-Rwanda and the Italy–Albania settlement, Member States proceed to pursue more and more advanced mechanisms to shift accountability past EU borders. This displays a persistent effort to reconcile restrictive migration management goals with the authorized constraints imposed by (EU) regulation. In the end, whether or not the ECJ’s forthcoming judgment will meaningfully form or constrain these methods stays to be seen. What is for certain, nonetheless, is that the overarching ambition to forestall entry to EU territory—and thereby to efficient safety—continues to outweigh efforts to develop credible, humane, and sustainable approaches to welcoming folks throughout the Union.
