Italy-Albania agreement: towards a reduction of asylum seekers' guarantees

©Governo Italiano- Presidenza del Consiglio dei Ministri

Following Giorgia Meloni’s private visit to Albania this summer in Vlora, and the rapprochement between the two countries in the context of Albania’s application to join the European Union (EU), their cooperation on migration has been strengthened in the form of a memorandum of understanding signed on Monday, November 6, 2023, and clarified by a bill passed by the Cabinet of Ministers on December 5. Parliamentary ratification of this agreement was suspended on December 14, 2023, by the Albanian Constitutional Court.

The aim of this agreement is to set up Albania’s first identification center at the port of Shengjin. People rescued at sea by the Italian authorities during search and rescue missions who do not meet the conditions for entry into Italian territory would be sent to this center. After this initial phase of identity, security, and health checks, these people could be sent to a center in the hinterland, at the Gjader military base, for further procedures. These procedures are not clearly defined in the protocol, but they could include the examination of asylum applications and the organization of migrants’ return to their countries of origin. To this end, Albania has authorized the use of these two areas by the Italian authorities during the period of validity of the agreement, i.e., five years from its entry into force, renewable. These centers are expected to be operational in the spring of 2024 and could accommodate up to 3,000 migrants at a time, or approximately 39,000 per year according to forecasts. The government estimates that the cost of setting up and running these centers will be €87 million, including €30 million for the construction of the centers alone.

An agreement contrary to European and Albanian law?

Both centers would be entirely funded and managed by Italy and would therefore operate under its jurisdiction. European law would also apply (Article 4 of the Protocol). However, Albania would provide external oversight of the facilities and could intervene within them with the authorization of the Italian authorities.

Migrants’ access to Albanian territory would be restricted to the centers and would only be permitted during the administrative procedures. These individuals would then be transferred to Italy to continue their procedures, either to settle as beneficiaries of international protection or to be returned to their country of origin from Albania, organized by the Italian authorities. All travel costs would be covered by Italy (Article 9 of the Protocol).

However, it is not yet clear which administrative procedures can be carried out outside European territory. The directive governing the granting and withdrawal of international protection in the EU, known as the “Procedure,” applies within the territory of Member States and at their borders, and does not concern their representation abroad. Thus, if asylum applications were processed in Italian centers in Albania, they would not necessarily fall under EU law, as Ylva Johansson, European Commissioner for Home Affairs, has pointed out.

However, this same directive states that it is prohibited to expel an asylum seeker from the territory where their asylum application is being examined. Thus, the central question raised by the preliminary analysis of the European Council on Refugees and Exiles (ECRE) and the Italian Society of International Law and EU Law is to know when the asylum application will take place. If it takes place following an initial landing in Italy, Rome will be responsible for the application and will not be able to return applicants to Albania. If asylum applications are made directly in the centers in Albania, they will be processed by the Italian authorities, possibly outside EU law, and the protection that may be granted will be national.

In response to these questions and to comply with international law prohibiting the refoulement of asylum seekers, the Cabinet of Ministers specified in its draft law that only migrants rescued in international waters could be sent to Albania. However, this still needs to be confirmed by the Italian and European courts.

Furthermore, this agreement should not apply to vulnerable persons, pregnant women, and minors; however, the location of this vulnerability assessment and the criteria used to determine vulnerability remain undefined.

The transfer of people from international waters to Albania and from Albania to Italy raises not only the issue of the anxiety this would cause among migrants, but also significant environmental and economic questions, as well as the question of the proportionality of this agreement to the migration challenges faced by Italy.

Finally, the Albanian opposition (the Democratic Party) and 28 other members of parliament have filed an appeal with the country’s constitutional court because they believe that the scope of this agreement is too broad, in that Albania is relinquishing its sovereignty over part of its territory. The Court has until March 6 to rule on the agreement’s compliance with Albanian constitutional principles.

Increase in migration management outsourcing projects

The signing of this agreement is part of a broader phenomenon of outsourcing asylum management beyond European borders, as evidenced by the memorandum of understanding signed between the EU and Tunisia, or the possibility of an agreement between the United Kingdom and Rwanda, which has been criticized by the European Court of Human Rights and ruled illegal by the London Court of Appeal. The major difference between the UK’s attempt and Italy’s attempt with Albania is that Albania is a party to the European Convention on Human Rights, while Rwanda is not and is not considered a safe country by several Member States.

Italy justifies sending exiles to Albania by citing the increase in arrivals on its territory in recent years. It attributes this increase to the “pull factor of sea rescues” for migrants wishing to come to Europe. However, a recent study by the University of Potsdam, the Hertie School, and the German Center for Integration and Migration Research (DeZIM) has shown that “there is no systematic empirical evidence that migration flows are influenced by sea rescues” and that the results “suggest instead that other factors such as violence, poverty, political instability, and commodity prices are decisive for migration flows.”

Beyond the increase in arrivals, Rome is particularly critical of the large number of asylum applications for which it is responsible, mainly due to the first entry criterion set out in the Dublin Regulation. According to this criterion, Italy and its Mediterranean neighbors are responsible for almost all asylum applications from people who land on their territory. For many years, Italy has been calling for solidarity measures from other EU countries, which have so far remained modest. However, the reforms to European asylum law currently being negotiated are not moving in this direction.

Rome must also still answer numerous questions regarding the implementation of this agreement, while the Italian government and European institutions continue to struggle to address the shortcomings of the Common European Asylum System (CEAS).