On 21 February 2024, Italy adopted Law No. 14/2024, ratifying and implementing the Protocol between the Government of the Italian Republic and the Council of Ministers of the Republic of Albania, signed in Rome on 6 November 2023.
The Protocol establishes an unprecedented framework for cooperation in the management of migration flows across the Mediterranean by providing for the establishment of two Italian-run facilities on Albanian territory. Its adoption represents a significant development in Italy’s migration policy and raises important questions concerning the territorial scope of asylum procedures, the allocation of responsibilities between States and the protection of fundamental rights.
The Protocol forms part of a broader context of national and European policies aimed at introducing procedures to keep migrants at the EU’s external borders pending the assessment of their eligibility to enter the Union. This approach is also reflected in the reform of the Common European Asylum System (CEAS) under the New Pact on Migration and Asylum, whose formal adoption is expected in spring 2024. More broadly, in recent years, migration governance in the Mediterranean has increasingly relied on bilateral arrangements with countries of origin and transit, particularly in the areas of border surveillance, the prevention of irregular departures and the return of migrants. The Protocol with Albania introduces a different approach: rather than concentrating exclusively on preventing departures or facilitating returns, it envisages the transfer of certain migrants to a third country where Italian authorities are expected to conduct specific asylum and migration procedures.
Under the agreement, certain migrants rescued by Italian authorities outside Albanian territorial waters may be transferred to Albania. The Protocol provides for two facilities: one in the port of Shëngjin, intended to accommodate migrants during initial identification and screening activities, and another in Gjadër, where the relevant procedures are expected to take place. Both facilities are to be managed by Italian authorities, while Albania is responsible for ensuring external security and public order outside the centres. The arrangement therefore establishes a framework in which Italian public authorities exercise their functions in facilities situated within the territory of another sovereign State.
The Protocol provides for the transfer of migrants rescued by Italian authorities in international waters, excluding those rescued in Albanian territorial waters. Its personal scope is limited to specified categories of persons, and it formally excludes unaccompanied minors, pregnant women and other vulnerable individuals. The agreement also establishes arrangements for the transfer, reception and subsequent management of the persons concerned. These provisions seek to define the respective responsibilities of the two States while enabling Italy to carry out certain procedures beyond its territorial borders.
The ratification of the Protocol immediately attracted considerable attention among scholars, legal practitioners and civil society organisations. One of the main issues concerned its compatibility with the European Union asylum acquis. In particular, questions arose as to whether and under what conditions Member States may conduct asylum procedures outside their national territory, and whether the guarantees established by EU law remain fully applicable when applicants are accommodated in facilities located in a third country. The fact that the procedures are to be conducted by Italian authorities does not, in itself, resolve the question of the territorial and personal scope of the relevant EU obligations.
Further concerns relate to the effective enjoyment of procedural guarantees by persons transferred to Albania. Access to information, interpretation, legal assistance and the possibility of challenging administrative decisions before an independent court are fundamental components of the asylum procedure. Their practical effectiveness may be affected by the geographical location of the facilities, the organisation of the procedures and the conditions under which migrants are able to communicate with lawyers, civil society organisations and judicial authorities. The physical distance between the centres and the Italian legal system therefore raises questions concerning the accessibility and effectiveness of the safeguards provided for by law.
Judicial protection represents another central aspect of the debate. The Protocol envisages the application of Italian law and the exercise of Italian jurisdiction in relation to the relevant procedures, but the practical arrangements for bringing legal challenges and obtaining effective remedies require particular attention. The location of the facilities in Albania may give rise to questions concerning the competent judicial authorities, the accessibility of proceedings and the effective enforcement of judicial decisions. These issues are especially significant where the procedures may lead to the rejection of an application for international protection or to the removal of an individual from the territory.
As of February 2024, the implementation of the Protocol had yet to demonstrate how these legal and practical challenges would be addressed. Its significance therefore lay not only in the establishment of a new form of bilateral cooperation, but also in the questions it raised concerning the externalisation of asylum procedures and the limits imposed by fundamental rights. The Italian-Albanian arrangement offered an important case study for examining whether migration procedures conducted outside the territory of a Member State could ensure effective access to protection, judicial remedies and the guarantees required by the European and international legal orders.
For an in-depth examination, see:
E. Testi, Profili di illegimità del Protocollo Itaia-Albania, Questione giustizia, 28 novembre 2023