Op-ed: Does the Rome court’s refusal to validate the detention order of the first asylum seekers brought to Albania mark the end of the Italy-Albania deal?

By Andreina De Leo, member of ECRE member organisation the Association for Juridical Studies on Immigration (ASGI)

On 18 October, the Civil Court of Rome blocked the detention of 12 asylum seekers from Bangladesh and Egypt, who had been transferred to Albania under a new migration deal between the two countries. While significant, the ruling might not be the end of the story.

What is the Italy-Albania deal?

The Italy-Albania deal, which was signed in November 2023 and ratified in February 2024, as part of Italy’s broader efforts to hinder arrivals from the Central Mediterranean route, allows Italy to send migrants rescued in international waters to Albania for asylum processing under an accelerated border procedure and for return operations. The procedures happen under Italian jurisdiction and are regulated by Italian law transposing the relevant EU legislation. The administrative and judicial authorities competent to deal with the matter are those in Rome. Migrants are first screened at the port of Shëngjin, and vulnerable individuals, such as minors or victims of trafficking, who are exempted from the border procedure, are returned to Italy. The rest are transferred to a centre in Gjadër, where their asylum claims are processed, and potential return operations for rejected applicants are arranged. Those who instead qualify for protection are transferred to Italy.

On 14 October, the first transfer took place, with 16 migrants from Bangladesh and Egypt being sent to Albania after initial screening aboard an Italian Navy ship. Of the 16 people who were transferred, 12 were deemed eligible for accelerated border processing and detained in Albania. Italian judges were then asked to validate the detention orders.

What did the Italian judges say?

Relying on a recent ruling from the Court of Justice of the EU, on 18 October, the Civil Court of Rome decided that an accelerated border procedure could not be applied to the 12 asylum seekers detained in Albania. Under Italian law, asylum seekers who arrive at the border without meeting entry conditions can undergo an accelerated process if they come from a “safe country of origin”. These individuals can also be detained if they do not provide a passport or refuse to deposit a financial guarantee. Without even looking into the detention question, the Rome court said that Italy’s designation of Bangladesh and Egypt as safe countries of origin was improper, because both countries were listed as safe with exceptions for certain groups, such as LGBTQI+ people, victims of female genital mutilation, and political opponents. On 4 October, the EU court had clarified that EU member states cannot classify third countries as safe countries of origin if there are exceptions. On the contrary, the third country should be free from the risk of persecution, torture and indiscriminate violence due to conflicts in its entirety. As a result, the Italian judges determined that the accelerated border procedure could not be applied to the 12 asylum seekers. The Rome court thus ordered them to be redirected to the ordinary asylum process in the territory. The 12 were transferred back to Italy on the same day, reaching the port of Bari in the afternoon of 19 October.

Is the Italy-Albania deal dead?

Not necessarily. As a response, the Italian government passed a law-decree, published on 24 October, to modify its list, removing countries deemed safe with territorial exceptions. However, countries with exceptions based on at-risk groups, including Egypt and Bangladesh, remained on the list. The government’s strategy is to claim that the EU court ruling only applies to territorial exceptions. However, this argument is unconvincing. The amendment to the 2005 Asylum Procedures Directive, used by the EU court as a basis to demonstrate the intention of the legislator to identify third countries of origin as safe only if they are entirely safe, removed the possibility of using both territorial and categories of people-based exceptions. We will soon see how the judges respond to this further change, given that the government, which is appealing the Rome court’s decision, will most likely attempt new transfers. However, even if the judges reject further detention orders, the deal could still survive.

The ruling only focused on how Italy implements the EU border procedure in general, and not on the situation in Albania specifically. This means that, in practice, asylum applicants from safe countries of origin without territorial limitations or exceptions based on at-risk groups could nonetheless be transferred. Furthermore, future EU regulations could provide loopholes for Italy. The forthcoming Asylum Procedure Regulation explicitly provides that third countries can be listed as safe countries of origin even when there are exceptions for specific parts of their territory or clearly identifiable categories of persons. Additionally, it expands the scope of accelerated border procedures, and renders them applicable not only to asylum seekers coming from safe countries of origin, but more broadly to applicants coming from a country with a recognition rate below 20%.

The road ahead?

The Italy-Albania deal is seen as a test case for EU member states seeking to manage migration flows through external partnerships. Its replicability is, however, questionable. The possibility of transferring migrants rescued on the high seas to Albania is based on the fact that the Asylum Procedure Directive only applies to applications made at the border, in transit zones or in territorial waters – but not in international waters, and that it can thus be unilaterally extended to procedures conducted in a third country. This means that, in practice, EU member states which do not face irregular border crossings at their external borders would not be able to copy it. However, in addition to creating unnecessary and unreasonable costs to process asylum applications outside the territory, it also sets a dangerous precedent. It deals yet another heavy blow to the right to territorial asylum, already under attack with discussions concerning “novel” ideas to manage migration inflows, including through the removal of the connection criteria to dismiss asylum applications based on the safe third country concept, and the ongoing discussions about creating “return hubs” in the context of the revision of the Return Directive. While the Italian authorities committed on paper to apply the same standards “as if” the applicants were in Italy, there are serious doubts that processing outside the EU can guarantee fair procedures and effective access to protection. For instance, in-person meetings with lawyers in Albania are permitted only if remote counselling is not possible, raising serious concerns relating to the right of defence. Given the legal, logistical, and humanitarian challenges behind external partnerships to shift responsibility to third countries or lower procedural guarantees, EU member states would do better if they if they invested in efficient asylum systems, integration measures and regularisation mechanisms in their territories instead.