Advocate General says Italy–Albania migrant protocol is lawful in principle

Brussels – The Italy-Albania protocol on immigration “is compatible with EU legislation” as long as  migrants’ rights are “fully protected.” This is the conclusion reached by Advocate General Nicholas Emiliou regarding the special agreement signed by the Meloni government with the Tirana administration, which authorizes Italy to establish and manage, on Albanian territory, detention and return centers that remain subject to Italian jurisdiction, for the purpose of managing migration flows. The Advocate General suggests that, “in principle,” the Court should consider the protocol and the relevant Italian legislation to be “compatible” with European Union law, in particular the Return Directive and the Directive on the granting of protection, and he explains why. 

Firstly, EU law does not prevent a Member State from establishing a detention center for return procedures outside its territory; therefore, Italy may indeed operate centers in Albania, as provided for in the protocol signed on 6 November 2023. However, Italy remains obliged to guarantee migrants the right to legal assistance, language support, contact with family members, and the relevant authorities. This means that in the event of unlawful detention, the authorities must “take prompt action” to ensure that migrants are transferred to Italy and released. Minors and all vulnerable groups must be able to benefit from the full range of protections provided by the asylum system, including access to medical care and education. 

EU Member States must also take the necessary organizational and logistical measures to ensure that migrants can enjoy the rights and safeguards provided for under EU law, including the right to access a judge and to a prompt judicial review to prevent unlawful detention. Furthermore, the rule allowing asylum seekers to remain in a Member State while their
applications are being processed does not entitle them to be brought back to that State’s territory. 

For the Italy-Albania agreement to withstand legal scrutiny, therefore, the governments of both countries will need to ensure that everything is done properly; otherwise, Italy would find itself in breach of European asylum rules.