ECRE provides its preliminary comments on the deal announced between Italy and Albania. It should be noted that the text of the agreement contains very little detail about the purpose of the proposed centres and the procedures that will be applied there. There is also limited information available about the scope of the agreement and which categories of people will be covered by it. Thus, comments can only be preliminary and to some extent speculative, and analysis may change once more information has been provided.
Outline of the Protocol
- According to the agreement – the “Protocol” – which runs for 5 years, renewable, Albania will allow Italy to manage centres (“areas”) on its territory where up to 3000 people may be held at any time, in state-owned property provided free by Albania (Article 3). The people to be held are those rescued at sea by the Italian government agencies according to the media discussion. There is nothing to exclude other people being held there, for example, those who cross the land border or people with negative asylum decisions, in either case transferred from Italy.
- The areas will be under Italian jurisdiction – Italy’s laws will apply not Albania’s (in theory, but see below). Italian staff working in the centres will not need a visa or residence documents to enter and stay in Albania. They will have certain immunities and will be punished under Albanian penal law only if they commit crimes against Albanian citizens or the Albanian state.
- These will be self-sufficient centres. Italy will provide the services inside, including health care. Italy will be responsible for maintaining order and security inside the Albania will provide security outside and around the perimeters of the centres. The Albanian authorities can only enter in case of emergency – fire or so on.
- People to be transferred to the centres will be permitted to enter Albania only to go to the centres, where they will Italy will adopt measures to make sure no-one leaves without authorisation (Article 6). If anyone gets out, the Albanian authorities will bring them back and Italy will pay them for doing so.
- There are lots of details about Italy’s responsibilities and liabilities vis-a-vis Albania. For instance, they will not need to request planning permission for the structures and the macabre detail that in case a “migrant” dies, then Italy has 15 days to remove the body.
- The agreement includes all the standard reference to human rights (preamble), conformity with international and European law (Article 2), and the centres will be managed in line with the relevant Italian and European legal obligations (Article 4), with no information on how these obligations will be respected.
The agreement contains very little detail about what will happen in the centres, what is their purpose, and how they will be managed, thus, it is hard to comment on the legality of what is planned. Meloni’s comments to the media suggest that the plan is to manage a screening process in the centres, however, the language in the protocol suggests that asylum border procedures and return procedures will be carried out in the centre, with references to “carrying out the border procedure and return procedures as provided for by Italian and European law” (Article 4) and “administrative procedures” (Article 6).
- The plan could be that both screening and border procedures take place, and potential different procedures linked to return.
In order to “ensure the right to a fair hearing”, Italy and Albania will allow access to the centres “for lawyers, their representatives, as well as to international organisations and the EU’s agencies, who will provide advice and assistance to asylum applicants to the extent foreseen by the applicable Italian, European and Albanian legislation”.
- The centres are under Italian jurisdiction on Albanian territory. This set-up is similar to the “Australian model” rather than the UK-Rwanda deal.
- Potential legal problems:
- Extra-territorial application of the screening process and the asylum and return border procedures is not allowed.
Although the content of the legal instruments is still under discussion, managing the screening process, the asylum border procedure, or the return border outside the EU will likely be explicitly precluded by the relevant legislation (Screening Regulation, APR, Return Directive).
It is not enough that jurisdiction applies. According to current EU law and to the current versions of the reform proposals, the process and procedures take place on the territory.
- Respect for procedural guarantees will not be possible.
Even if this were not the case, ensuring respect for the required procedural guarantees is very likely not possible outside the state’s territory, regardless of the limited references in Article 6 to access to the centres. In addition, EU primary law, including the Charter of Fundamental Rights applies, and the model likely breaches a number of Charter rights.
- Automatic use of detention is not lawful.
The proposal appears to envisage the automatic use of detention.
The Protocol refers to the “stay” of the people in the centres. It is to be assumed that this is detention. The period of the stay cannot be longer than that allowed by the legal framework in Italy. When it ends people are not released in Albania but removed from Albanian territory (Article 9.1) .
There is no doubt from the description that the centres are detention centres and will be considered as such under national and CJEU jurisprudence. Beyond the need for individual assessment, the other conditions for the lawful use of detention are unlikely to be in place.
- Conditions in the centres are likely to be unlawful.
Beyond the use of detention, the conditions inside may be in breach of EU law and IHRL, questions arise as to access to rights, including rights to healthcare, dignity, justice, a fair hearing, etc.
- The diversion of SAR operations to Albania will often be a breach of International Law of the Sea (ILOS).
Obligations under ILOS vary according to where people are rescued (in the territorial sea or in the High Seas, or in another state’s SAR zone) and on which state is coordinating the rescue, among other factors. Nonetheless, some general remarks can be made. Under ILOS, there is a duty to rescue people in distress at sea and rescue includes transporting them to and disembarking them in a place of safety. Potential breaches include 1) it is not clear that Albania is a place of safety (for instance, for victims of trafficking of which there are many among those rescued in the Mediterranean; 2) it is not clear that transporting rescued people in order to detain them constitutes transporting to a place of safety (it certainly breaches IHRL); 3) the usual interpretation of ILOS (which Italy accepts) based on the 2004 amendment to the SAR Convention is that people should be transported to the nearest place of safety.
- Challenges could be brought under Albanian law which will still apply.
There may be possible legal challenges in Albania. Despite the claims in the Protocol, Albanian law will still apply. Under international law, it is not possible for a state to cede jurisdiction over part of its territory for the purposes described (it is not similar to diplomatic mission for example). Albania is also bound by the ECHR and all other international treaties to which it is a signatory. Albania is gradually adopted EU acquis, including on asylum.
The people would be under Italian jurisdiction but they are not on Italian soil; they remain also under Albanian jurisdiction.
- It is not clear how vulnerable people will be exempted from the They will have to be assessed for vulnerability on Italian ships and then transferred by water or air to Italy before the rescue is completed in Albania. This generates legal and practical problems.
The political part
- It seems that the Commission was not aware and is not pleased – for them, there is only one game in town and that’s the Pact and extensive concessions were made to get Italy on board.
- It is hard however for the Commission to respond in the useful and robust way it responded to Austria’s recent proposals. First, it doesn’t have the details. There are multiple ways that the Protocol is likely to breach EU law however it is not as immediately and obviously unlawful as the proposal which Austria touted. Second, Italy is the most important country when it comes to the EU asylum law reforms: if Italy pulls its support for any of the proposals, the Pact may come down like a house of cards.
- Italy is arguing that the plan is in conformity with EU law, and it is using twisted versions of dubious legal concepts and tools that the Commission itself created. The Commission proposed the screening process (but not the border procedure) to take place outside EU territory. It is also the Commission that insisted on the fiction of non-entry for the screening process and the border procedures. Frontex also operates in the Albania with an executive mandate which purports to remove it from Albania’s jurisdiction for certain purposes.
- This should be understood as Italy’s answer to the Pact. The reforms increase responsibilities of the countries at the external borders and at their heart is the expanded use of the border It was unclear why Italy accepted these reforms. The strategy seems to have been to agree to the border procedure – but plan to manage it in Albania.
- As in all SAR discussions, this is not just about Italy and it is not just Italy at fault: other Mediterranean Member States – and notably Malta – are refusing to disembark people rescued at sea. Italy has at least been rescuing and disembarking rescued people and has received little support in terms of relocation to non-coastal states or in terms of other coastal states abiding by ILOS.
- Italy is promising what is not in its gift – progress in the EU accession process, which Rama mentioned multiple times. It was announced in the week of Commission’s presentation of Accession reports). There are various financial and diplomatic benefits to Albania, however the deal appears to hinge on Albania advancing in the Accession process, which is a policy led by the Commission.