Blog post by Dr. Alice Lacchei, Research Fellow in Political Science at the University of Bologna, and Dr. Chiara Scissa, Research Fellow in EU Law at the University of Bologna
Introduction
The EU looks at the Italy-Albania Protocol as a potential new model for enforcing returns of migrants reaching the EU. This blog post illustrates some of the most pressing challenges that this deal poses to the respect of migrants and asylum-seekers’ rights as well as to the rule of law.
The Italy-Albania Protocol
On February 22, 2024, the Italian Government passed Law no. 14/2024, which ratifies the Protocol between Italy and Albania for the strengthening of cooperation on migration matters, signed in Rome on November 6, 2023. The Protocol grants Italy the right to use certain areas located in Albanian territory (the port of Shengjin and an area located in Gjadër) for the construction of three facilities. These facilities will be used to carry out border and return procedures for specific categories of asylum seekers who have been intercepted by the Italian authorities in international waters while intending to reach the Italian coast. According to article 4 of the Protocol, asylum and return procedures carried out in these facilities are under Italian jurisdiction. The Italian government has jurisdiction over three facilities: a) a penalty detention centre with 20 places, which is used for the application of precautionary custody measures for disembarked migrants who have been arrested or detained; b) an administrative detention centre with 144 places, which serves as a Repatriation Detention Center; and c) an administrative detention centre with 880 places intended to accommodate asylum seekers while waiting for the outcome of their asylum applications.
The latter facility functions as a detention centre for asylum seekers who are waiting for their protection claim to be decided by Italian authorities. Only asylum seekers whose claim is regulated under the so-called accelerated border procedure, which has been introduced by Law no. 50/2023, can be detained in this centre. This procedure, which has been strongly criticised by lawyers and human rights organisations, applies to asylum seekers from ‘safe’ countries of origin or who have been stopped for having evaded or having attempted to evade the relevant border controls.
The human rights costs
NGOs, such as Amnesty International, and legal associations specialising in asylum and migration law, such as ASGI, have raised severe concerns about the concrete risk of grave violations of human rights and of the rule of law in the context of the Italy-Albania Protocol. What follows is a list showing the main critical points that have been highlighted:
1. Risk of Violations of the International Convention on Maritime Search and Rescue (SAR)
The procedures under the Albania-Italy Protocol may violate international search and rescue standards, threatening the right to life and physical integrity for people at sea. More precisely, it risks violating the duty to disembark migrants in danger at the first safe port. Indeed, depending on where the rescue operation occurs, Italian authorities may delay the disembarkation of people rescued at sea by taking them to Albania instead of the nearest port.
2. Risk of Violations of the Rights of Minors and Vulnerable Individuals
Neither the Protocol nor Law no. 14/2024 include references to vulnerable migrants to whom the Protocol would not apply. This means that, in principle, accelerated border procedure and related detention can be applied to all migrants transferred to Albania, including migrants who have or who have not claimed asylum, those who are considered dangerous or who come from safe countries of origin, as well as vulnerable migrants who cannot be detained or expelled according to Italian law (Art. 19 of the Italian Consolidated Act on Immigration). It does appear that some sort of vulnerability check is undertaken in practice, although further clarity is urgently needed. Indeed, according to an ECRE document, the vulnerability check conducted upon the first 16 asylum seekers subject to the Protocol took place on an Italian Navy boat, but this check failed to detect several vulnerable people and unreasonably extended the disembarking operations for this group. Two minors and two adults in precarious health conditions disembarked in Albania, and after a second screening on land and a wait of several hours in the port of Shëngjin, they were transferred to Italy.
Not only do the Protocol and the Law lack clear provisions on vulnerability checks, but there are also no indications as to where this screening should take place, what professional figures should be responsible for carrying it out, what skills and qualifications are needed for such an assessment, and what standards must be respected. This lack of clarity could result in vulnerable individuals being subject to prolonged detention and delayed access to asylum, violating their rights under Italian, EU, and international law. Additionally, despite the government declaring that vulnerable individuals and minors will not be detained in Albania, the tender includes expenditure items relating to their reception.
3. Risk of Violations of the Right to Personal Liberty
The Protocol effectively mandates the automatic detention of all migrants and asylum seekers who have been transferred to Albania, since no alternative measures are provided. This runs counter to international and Italian law that regulates the use of detention as a measure of last resort, which must be validated by a judge following an individual assessment. Without this validation order, which must be issued within 48 hours from the moment of notification, detention becomes null and must be revoked. This was the case for the first 12 asylum seekers detained in Albania, whose detention was not validated by the Tribunal of Rome. In its decrees, the Tribunal argued that their asylum applications could not be evaluated according to the accelerated border procedure, since Bangladesh and Egypt cannot be considered safe countries of origin. Thus, since the Protocol permits migrants’ presence in Albania for the sole purpose of border and return procedures, the judges ordered their return to Italy to guarantee their fundamental right of personal liberty. Additionally, the lack of clear mechanisms for releasing individuals who have successfully appealed against a detention order could further prolong their detention, which risks continuing even after a judicial decision, due to the time required to arrange their transfer to Italy. Finally, it is worth mentioning the risk of severe violations of human rights that could occur in administrative detention centres, especially due to the remoteness of these centres and the peculiarity of the Italian jurisdiction in a third country, which may produce conflicts of responsibilities for human rights violations in these centres.
4. Risk of Violations of the Right of Legal Representation and Effective Remedy
Despite providing for the right of legal representation on paper, migrants will be assisted by lawyers based in Italy via online meetings or via Whatsapp. The Protocol provides that, in those cases where communication is not feasible due to, for instance, technical reasons, the lawyer can reach their client in Albania. Given the long-distance journey that the lawyer should carry out to commute from Italy to Albania and to reach the remote areas where those centres are located, this mechanism risks strongly undermining legal representation and, consequently, access to an effective remedy, especially considering the short time limits to lodge appeals both for administrative detention measures and asylum procedures. In addition, the Protocol foresees a reimbursement of a maximum of 500 euros for lawyers’ travel costs, which is unlikely to cover all expenses.
5. Risk of Violation of the Right to Asylum
The Protocol risks undermining the right to access asylum in several ways. First, asylum seekers’ applications may be rejected without an in-depth scrutiny of the case, due to the short time frame which is inherent in the accelerated asylum procedure. For instance, the first 12 asylum claims lodged by migrants transferred to Albania were all rejected in around 24 hours by Italian administrative authorities as manifestly unfounded, solely because migrants were from countries included in the Italian list of safe countries of origin. Second, there is a risk of violation of asylum procedural guarantees for asylum seekers transferred to Albania. For instance, it may be challenging to provide adequate interpretation service—which already suffers from deficiencies in Italy—to asylum seekers during the various stages of the asylum procedure, due to the long distance, videoconferences, lack of interpreters, and additional economic costs. As already pointed out, difficulties in gaining legal representation (see point 4) may undermine the right to an effective remedy, reducing the possibility to lodge an asylum appeal. Third, differences in procedural guarantees in practice in the centres in Albania and Italy could also lead to discrimination between those applying for asylum in Albania and those in Italy, undermining the principle of fairness in asylum procedures.
The economic cost
In addition to human rights costs, which must be at the centre of the debate, this measure has also relevant economic costs. According to a technical report published in February 2024 by the Department of General Accounting of the State, the reception centres in Albania will cost 653 million euros over five years between 2025 and 2028. This analysis revealed higher costs than the study presented one month before and prepared by the Chamber of Deputies and the State Budget Service.
In particular, the technical report projects that the construction of the Shengjin center would cost 3 million euros, while 20 million euros were needed for the Gjader site. The cost for the management of these facilities is expected to be around €30 million. These are only a few out of the many expenditures that would not have been required if asylum seekers’ registration were to be carried out in Italy. For instance, 252 million euros are required to cover the travel costs, food and lodging of officials of the Ministries of Interior, Justice and Health. Other expenses include 95 million euros for ship chartering, and nearly 8 million euros for health insurance for Italian personnel on mission abroad.
What is even more important is the potentially exorbitant cost associated with the transfer of asylum seekers between Italy and Albania for reasons enshrined in the Protocol. It is relevant to remember that the transfer of 12 asylum seekers from international waters to Albania and from Albania to Italy, following the Tribunal of Rome’s orders, cost 20,000 euros per person. The scenarios requiring the transfer of asylum seekers from Albania to Italy are several. For instance, if the protection claim were to be accepted, the person who has been recognised as eligible for protection would have the right to enter Italy and, hence, they should be brought to Italy. Similarly, if protection is denied as a result of the accelerated border procedure, migrants should equally be transferred to Italy as Rome is responsible for enforcing their return, not Tirana. Finally, when a protection claim has been rejected and the applicant has reached the maximum length of detention in the Repatriation Detention Centre, they need to be released. This means that rejected claimants would be entitled to enter Italy despite their irregular status, they need to be released. This means that rejected claimants would be entitled to enter Italy despite their irregular status.
All in all, while the cost of hosting asylum seekers in reception centres in Italy is 35 euros a day per capita, this rises to up to 500 euros for migrants contained in reception centres in Albania. The Italy-Albania Protocol seems therefore to be a practice that should not serve as a model for the EU as European Commission President Von der Leyen suggested, first and foremost because it violates key tenets of refugee law and human rights obligations, as enshrined in international, EU and national laws. Second, at its very outset, the Tribunal of Rome has confirmed that it will be highly ineffective, as accelerated border procedures cannot apply to migrants coming from third countries that cannot be considered as safe. Third, costs associated with migration management in Albania are 14 times higher than those linked to migration management in Italy, making it an unreasonable expense. This is even more so if we consider that this abnormous cost covers a maximum of 3000 migrants who could be “hosted” in those centres. As 141,790 migrants arrived in Italy by sea in 2023, and 55,048 have been disembarked in Italy as of October 2024, one can hardly understand how processing the asylum applications of 3000 migrants (2.1% with respect to 2023; 5.4% in 2024) in Albania would make a difference for Italy’s migration management. of 3000 migrants (2.1% with respect to 2023; 5.4% in 2024) in Albania would make a difference for Italy’s migration management.
Conclusions
The Italy-Albania Protocol suffers from severe legal deficiencies and has enormous economic costs. The first judicial interventions on key provisions of the Protocol make its application difficult, but do not dismantle it completely. In response to the judges’ decree, the government intervened by amending the national list of safe countries of origin. Yet, the list still includes countries— such as Egypt and Bangladesh— that cannot be considered as safe according to the findings of national and EU Courts. In so doing, Italy’s migration law continues to be in violation of EU and national law.
This blog post is part of the research project ERC 2022-STG Gatekeepers to International Refugee Law. – The Role of Courts in Shaping Access to Asylum (Grant Agreement n. 101078683).
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.