Eleonora Celoria, Affiliate Researcher, Forum for International and European Research on Immigration
The Italy-Albania migration deal, signed in November 2023, introduces a novel model of asylum externalisation that operates under Italian jurisdiction and applies Italian (and potentially EU) law. This deal has been backed by most EU member states as a valuable addition to Europe’s array of externalisation tools. However, it has faced severe criticism from legal experts and civil society for its potential impact on migrants’ fundamental rights. This contribution considers whether the agreement could truly be a ‘model’ for the EU, and aims to explore some of the legal implications of de-territorialising asylum procedures while maintaining the jurisdiction of an EU Member State.
Introduction
On the 5th of June 2024, a few days prior to the European elections in 2024, Italian Prime Minister Giorgia Meloni made an announcement at the port of Shengjin, Albania, stating that her government had “brought the European Union legislation” to the country, through an agreement that represents “an extraordinary deterrent for illegal migrants” and “could be replicated in many other countries, becoming part of the European Union’s structural solution”.[1] She was referring to the implementation of the plan of extraterritorial processing of asylum applications, as outlined in the Protocol between Italy and Albania signed on November 6th 2023, which was subsequently ratified by the parliaments of both countries.
The agreement entails that migrants and asylum seekers rescued in international waters by Italian ships can be brought to Albania to carry out asylum and return procedures. The entire operation, as well as the management of the centres where migrants will be detained, is placed under Italian jurisdiction and will take place according to the “Italian and European relevant legislation” (art. 4, par. 2 Protocol). The broad formula has important political and legal implications, especially in light of Meloni’s most recent remarks in Albania.
On the one hand, it mirrors the political will of the Italian government to bring the operation to the forefront of the European policies on migration and asylum. On the other hand, it dispels all possible doubts on the accountability of Italian authorities for potential violations that will take place in Albania[2], following an approach that appears unique in the landscape of externalisation practices, but which raises new interrogatives concerning the intersection of legal regimes and the effectiveness of fundamental rights. This contribution seeks to forward some views on the legal consequences of the recent model, which is based on a legal fiction of territoriality rather than a shift in responsibilities to third States, and on how it affects migrants’ fundamental rights.
A new (symbolic) model for externalisation?
From a policy perspective, the Italy-Albanian deal is highly symbolic.[3] This is consistent with the attitude towards symbolic policy-making that is particularly consolidated in the making of irregular migration policies, which are frequently based on the adoption of unfeasible measures to manipulate public opinion or divert attention from more lenient immigration control practices.[4] Unsurprisingly, the Italian government used the same strategy for its administrative detention reforms in 2023, in the aftermath of thousands of arrivals by sea to Lampedusa. As it happened with immigration detention reforms, the new model of externalisation was presented to the public opinion as a deterrent instrument, that would convince migrants not to reach Italy and Europe, disregarding the large ineffectiveness of deterrence policies developed in Italy against asylum seekers and irregular migrants.[5]
Nonetheless, Meloni’s speech from Albania ahead of the EU elections was intended to send a political message not only to the Italian electorate but also to European institutions and Member States. She described the agreement with Albania as a “truly European deal” that could serve as a template for other externalisation experiments in the future. Her forecasts proved to be well-founded when, on June 25, the former (and eventually future) President of the European Commission expressed her interest in looking into “innovative solutions to counter illegal immigration, in particular solutions for outsourcing asylum” in response to a request from fifteen Member States to outsource the management of asylum and returns, as she noted that “many Member States are looking at innovative strategies to prevent irregular migration by tackling asylum applications further from the EU external border”.[6]
While Von der Leyen did not refer explicitly to the Italy-Albanian deal, the letter submitted by the Member States called upon the development of mechanisms “aimed at detecting, intercepting, or in cases of distress, rescuing migrants on the high seas and bringing them to a predetermined place of safety in a partner country outside the EU, where durable solutions for those migrants could be found, also building on models like the Italy-Albania Protocol”.[7]
Determining the limits and obligations of the Italian State as well as how such a model would be operationalized seems crucial, especially in view of the heightened expectations of EU institutions and Member States for the “Italian way” of offshore asylum. The question is thus whether the Italy-Albania deal has the potential to deliver the promises of involving third States in the asylum processing, finding “durable solutions” for rescued migrants outside the EU.
Extraterritorial jurisdiction and the (un)deniability of States responsibilities
As of June 2024, there is no empirical evidence of the concrete functioning of the procedures: despite the high political pressure, the plan has been slowed down by practical obstacles and spiralling costs (the budget for the entire operation has risen to approximately 700.000 million) and it is not expected to be operative before the autumn[8]. However, both the Protocol and its ratification law (Law 14/2024) delineated an operational model based on the full assumption of responsibilities by Italy: asylum and return procedures are to be implemented by Italian administrative and judicial authorities (based in Italy), and the centres will be placed under the control of the Italian police.
While there is no doubt that the deal can be traced back to the macro-notion of externalisation, provided that the latter is understood as “the process of shifting functions that are normally undertaken by a state within its territory so that they take place, in part or in whole, outside its territory”[9], the new model has been considered “unique” as it does not shift the responsibility for the extraterritorial processing of asylum to third countries. Other agreements labelled as examples of asylum externalisation have so far entailed the physical transfer of asylum seekers, the deflection of accountability for human rights violations, and the fact that recognised refugees would not be allowed to enter the externalising State (i.e. Australia or the United Kingdom).[10] On the contrary, according to the Protocol, Italy retains full jurisdiction over the asylum and return procedures and will exercise a de jure as well as a de facto control over migrants in Albania, turning the country into a mere “land provider”.
From a legal perspective, the decision of the Italian government strengthens the conclusions fostered by legal scholars that jurisdiction can extend beyond the borders of the States and, that States remain accountable for human rights violations even in externalisation contexts. Had Italy refused to recognise its full jurisdiction in the area of Shengjin and Gjadër and for the processing of asylum applications, releasing migrants and asylum seekers rescued in the Mediterranean to a third country without examining their personal situation would have constituted, following Hirsi Jamaa jurisprudence, a collective expulsion and a violation of the principle of non-refoulement.
Moreover, the ratification law refers to Italian legislation on asylum and return transposing EU Directives, and this, combined with Meloni declarations suggests that the extraterritorial procedures will be carried out based on the same rules applicable on the territory, and not on a distinct and alternative set of laws. Consequently, if the asylum border procedure exceeds the time limit (of 28 days including the appeal phase), asylum seekers are to be admitted to an ordinary procedure and will be similarly brought to Italy. Likewise, recognised refugees will have full access to the territory and rights granted to beneficiaries of international protection in Italy. Finally, neither the Protocol nor Law 14/24 contain provisions allowing for the returns to be carried out directly from Albania, implying that returnees will be only detained pending the arrangements related to the expulsion and will be transferred to Italy to eventually carry it out.
Considering the aforementioned, it seems that letting aside the risk of fundamental rights violation stemming from the extraterritorial/border procedure that will be analysed later on, the model shaped by the Protocol is costly, operationally challenging and very far from the desiderata of EU institutions and Member States. Not only insofar as it does not contemplate durable solutions for asylum seekers or refugees outside Italy, but also because it implicitly recognises that Italian (and European) law is not compatible with the shifting of responsibilities for asylum processing to third States.
Preliminary clearance: the deal and EU law
Furthermore, any similar deal would be confronted with the challenge of identifying to what extent EU law could be applicable to it, and the implication of the falling of the deal under EU law. The question has raised an intense debate among scholars[11], and it will not be addressed here in detail. Nonetheless, it can be mentioned that even despite the territorial limitation of the Common European Asylum System, some elements suggest that the plan could interfere with the functioning of the CEAS, whose architecture has been further harmonised through the new Pact’s Regulations adopted in May 2024.
For instance, the fact that asylum seekers in Albania will be recognised as beneficiaries of international protection according to the Qualification Directive could raise issues related to the enjoyment of the rights of refugees in the EU. Moreover, the deployment in the centres in Albania of all the activities carried out in the Italian hotspots, including the registration of applicants in EURODAC, could interfere with and eventually jeopardise the functioning of the current Dublin regulation, and of the future system of “management of asylum and migration” under RAMM Regulation. These concerns could attract the competence of the ECJ for interpreting the applicability of EU law, particularly regarding the issue of the freedom of movement of asylum seekers and refugees who arrived “through” Albania in the EU. If the Italian deals, or similar ones, are to be attracted within the scope of EU law, it implies that any procedure could and will be assessed in light of its compatibility with the fundamental rights guaranteed by the Charter.
Overall, ahead of the many legal intricacies posed by the Italy-Albanian agreement, and its inadequacy to provide a solution similar to those imagined by EU Member States, its concrete replicability can be questioned.
Shifting borders, legal fictions and the effectiveness of fundamental rights
One more aspect of the deal should be addressed in detail. The recently proposed model, regardless of its political implications, has the potential to significantly impact the fundamental rights of migrants. It would appear that the government has tried to create an assumption of respect for fundamental rights, based on the application of Italian law, as if the processes were conducted in Italy. In this sense, Law 14/24 equates the area of Shengjin and Gjadër to the Italian “border and transit zone” identified by a 2019 Decree Law, and the centres in such areas to the Italian hotspots and detention centres, confirming the ultimate goal of creating “an Italian enclave in Albanian territory”.
The lawfulness of the procedures would be ensured, a priori, by the fact that they will take place “in conformity” with Italian and EU law and on the grounds of the rather peculiar fiction which qualifies migrants as located in Italian border zones. The use of fiction is not a novelty in the migration policy landscapes, and it gained traction with the new EU Pact, whose border procedures are largely based on a broadly contested fiction of non-entry. Both the fictions (used in the deal and at EU level) serve the aim of managing migration at the border in order to deprive migrants of full and uncontested access to fundamental and social rights. However, this approach is problematic for several reasons.[12]
Firstly, the legal fiction that equates Albanian area to Italian border zones would completely de-territorialise the notion of border and transfigure the reality, to the extent that every piece of land, regardless of its geographical position, could be labelled as “border” for the application of a border procedure. In this regard, scholars have talked about “shifting borders” to describe the mobility or elasticity of border practices, particularly in the context of externalisation.[13] Moreover, evidence of the trend to expand the notion of border beyond its physical dimension can be observed in both the Italian legislation on “border and transit zone”, and in the recently adopted Asylum Procedure Regulations, which permits the implementation of border procedures at any spatial location within the territory (though applying a fiction under which they are not juridically on that territory). It is likely that, given the increased applicability of border procedures, the ECJ will be called upon to provide a consistent interpretation of this concept. Against this background, which is already problematic, Law 14/24 goes beyond the idea of mobile or shifting frontiers: it suggests that even areas outside the territory of Italy should be qualified as Italian “borders”. A similar “extraterritorial” reconfiguration of the legal concept of borders, beyond being logically inconsistent, could ultimately challenge the legal notion of “territory” under migration as well as other branches of law and undermine the principles of legal clarity and coherence.
Secondly, the idea that the rights and guarantees accorded in Albania entail an equivalent degree of protection as those granted in Italy is at odds with the expected conditions on the ground. To cite just a few of the most critical aspects, the Protocol makes it clear that in Albania migrants will be systematically detained. Such a condition could per se amount to a violation of the right to liberty under the Italian Constitution, the ECHR and the Charter, as a human rights-based approach to detention conceives it as a last resort measure. Further concerns could be raised with regard to detention conditions, provided that the centres will be managed by the private company Medihospes, a cooperative that has been appointed to run the services in the centres despite being accused of abuse of public funds and mismanagement of other detention centres.[14] The poor quality of services and the systemic denial of basic needs of detainees in the Italian administrative centres have been extensively documented by scholars, NGOs and journalists, and have already been framed by the ECtHR as ill-treatment.[15] The risk of fundamental rights violations could be considered a structural feature of the Italian detention system, and it could be further exacerbated by the – physical and juridical – isolation of the new centres. Moreover, asylum, return and detention decisions will be taken by authorities based in Italy, through accelerated and online procedures. Lawyers will be able to speak with applicants solely via telephone (on the condition that migrants are in possession of the requisite communication device) and may only undertake travel to Albania in exceptional circumstances. The time and practical constraints are so pervasive that they could amount to a deprivation of the right to an effective defence during the asylum and return procedure.
Thirdly, the claim that allowing asylum seekers brought to Albania to use the border procedures currently in place in Italy would guarantee the protection of their fundamental rights is refuted by several Courts’ rulings that sanctioned Italian practices related to border procedure. For instance, the European Court of Human Rights recognised that Italy arbitrarily detained irregular migrants in the Lampedusa hotspots.[16] In addition, several national Courts have declared unlawful numerous detention orders adopted against asylum seekers solely on the grounds of the applicability of a border procedure, with no further exam of their personal situation.[17] The very same situation of de facto detention, or automatic detention without assessing its necessity and proportionality could be replicated in the centres of Shengjin and Gjadër.
In conclusion, the concerns for the violation of fundamental rights arising from the implementation of the extraterritorial plan are well founded in light of current practices of border management in Italy. The mere declaration of the abstract compatibility of the extraterritorial procedure with “the relevant Italian and EU law” is not sufficient to dissipate the many doubts surrounding the violation of the rule of law and the rights guaranteed under international, EU and Italian Constitution law. The assessment of the compatibility of the deal with EU primary law (and particularly with the Charter) largely depends on whether the former falls under the scope of EU law, an issue that still has to be clarified and that might gain relevance during the process of implementation of the new Pact. Conversely, the challenges the agreement poses to the respect of Constitutional rights should be immediately addressed.
The right to asylum enshrined in Art. 10 of the Constitution provides for a right to be “in the territory of the Republic”, which can be understood as granting access to the procedural guarantees related to the asylum procedure, and the substantive rights of asylum seekers, which would not be effective outside the territory, a principle that can be found in the Refugee Convention too. In other words, Art. 10 Constitution acknowledges that the presence of migrants inside or outside the territory results in a differential treatment and aims at granting the same level of protection to all migrants who invoke the right to asylum. Such a principle can hardly be reconciled with the extraterritorial model set forward by the Italian government, as the protection afforded to migrants must be assessed not against the formal provisions of the law but against the effectiveness of fundamental rights on the ground.
Footnotes
[1] President Meloni’s press statement with Prime Minister Rama during her visit to Albania, 5.6.2024: https://www.governo.it/en/articolo/president-meloni-s-press-statement-prime-minister-rama-during-her-visit-albania/25963
[2] The Albanian Constitutional Court, however, ruled on the legitimacy of the referring to the theory of “double jurisdition”, according to which Albania would retain a certain degree of responsibility for human rights violations taking place on its territory, at least with regards to obligations stemming from the ECHR. See: Gjykata Kushtetuese e Republikës së Shqipërisë (Constitutional Court of the Republic of Albania), Press release (29 January 2024), at: https://www.gjk.gov.al/web/Njoftim_per_shtyp_3025_1-94.php
[3] Faggiani V., “The Italy-Albanian Protocol on migration management: between new schemes of asylum externalisation and risk of systemic violations”. UNIO EU Law Journal, (2024).
[4] Slaven, M., & Boswell, C. “Why symbolise control? Irregular migration to the UK and symbolic policy-making in the 1960s”. Journal of Ethnic and Migration Studies, no. 45 (2017): 1477–1495.
[5] Rosina M., “The criminalisation of irregular migration in Europe. Globalisation, deterrence and vicious cycles”, Palgrave Macmillan (2022).
[6] Letter from President Von der Leyen to EU leaders on migration, 25.6.2024: https://www.eunews.it/wp-content/uploads/2024/06/Letter-from-President-von-der-Leyen-to-EU-leaders-on-migration-EUCO-June-2024.pdf.
[7] Joint Letter from the undersigned Ministers on new solutions to address irregular migration to Europe, 15.5.2024: https://uim.dk/media/12635/joint-letter-to-the-european-commission-on-new-solutions-to-address-irregular-migration-to-europe.pdf.
[8] Sunderland J., “Italy migration deal with Albania is a costly, cruel farce”. Human Rights Watch. 6.6.2024: https://www.hrw.org/news/2024/06/06/italy-migration-deal-albania-costly-cruel-farce.
[9] Cantor D., Feith Tan N., Gkliati M., “Externalisation, access to territorial asylum, and international law”. International Journal of Refugee Law, no. 34 (2022): 120–156, 120.
[10] See, for instance, the Memorandum of Understanding between Australia and the Republic of Nauru signed in 2013, or the recent UK-Rwanda deal. On the differences between such models, Nicolosi S., “Externalisation of Migration Controls: A Taxonomy of Practices and Their Implications in International and European Law”. Neth Int Law Rev 71, (2024): 1–20.
[11] See, in Italian, Masera L., “Il disegno di legge di ratifica ed esecuzione del protocollo in materia di immigrazione. Questioni di legittimità”. Sistema Penale (2024); Savino M., Virzì F.V., “Il protocollo tra Italia e Albania in materia migratoria: prime riflessioni sui profili dell’extraterritorialità”. ADiM Blog, Editorial (2023); Celoria E., De Leo A., “Il Protocollo Italia-Albania e il diritto dell’Unione Europea: una relazione complicata”. Diritto, Immigrazione e Cittadinanza, n. 1 (2024); Carella M., “Procedura di confine e procedura ai confini della realtà nel Protocollo Italia-Albania in materia di migrazione”. Sidiblog (2024).
[12] The articles explores only some of the most relevant issues, as it does not engage with the questions raised by the compatibility between such fiction “of territoriality” and the need to disembarked migrants in a “place of safety” under the international law of the sea, nor it delve into the challenges raised by the initial screening procedures and the identification of vulnerable groups who should not, based on Meloni declarations, be subject to the procedures in Albania.
[13] Shachar A., The Shifting Border: Legal Cartographies of Migration and Mobility. Manchester (2020), e Tsourdi E., Ott A. and Vankova Z. “The EU’s Shifting Borders Reconsidered: Externalisation, Constitutionalisation, and Administrative Integration”. European Papers, no. 11 (2022): 87-10.
[14] Millona K., “The Italy-Albanian deal and the new frontiers of border externalisation”. MeltingPot. 16.5.2024: https://www.meltingpot.org/en/2024/05/the-italy-albania-agreement-and-the-new-frontiers-of-border-externalization/.
[15] Esposito F., Caja E., Mattiello G., No one is looking at us anymore (2020); Fabini G., “Il confinamento della mobilità: innovazioni e continuità nella storia della detenzione amministrativa in Italia”, in E. Caja, F. Esposito, G. Mattiello, Corpi reclusi in attesa di espulsione, Torino (2022); Amnesty International. Liberty and Dignity: Amnesty International’s Observations on the Administrative Detention of Migrant and Asylum-Seeking People in Italy (2024); AltraEconomia. CPR fuori controllo (2024).
[16] ECtHR, Cases of J.A. and Others v. Italy, no. 21329/18; A.M. v. Italy, no.70583/17; A.B. v. Italy, no. 13755/18; A.S. v. Italy, no. 20860/18
[17] For an overview of the decisions and the implications on the Italian system, Celoria E., Passalacqua V., “Turning the exception into the rule”, Verfassungsblog (2023), and, on the follow up regarding the financial guarantee, Savino M., “Il nuovo decreto sulla garanzia finanziaria: via libera alla procedura di frontiera in Italia e in Albania?”, ADiM Blog, Editoriale (2024).