On 6th November 2023, the Italian Prime Minister (PM) Giorgia Meloni and her Albanian counterpart Edi Rama announced the signature of a Protocol (an unofficial translation in English is also available) “on the strengthening of cooperation in migration matters”. The Protocol has already sparked widespread criticism, including by the Commissioner for Human Rights of the Council of Europe, Amnesty International, and the European Council on Refugees and Exiles. Critiques were even raised by members of PM Rama’s ‘political family’.
Initially, the Italian Minister responsible for Relations with the Parliament had declared that the Protocol would not undergo the scrutiny of the Italian Parliament (this practice was deemed by Italian scholars in breach Art. 80 of the Italian Constitution in the given case, in light of the Protocol’s political nature and budgetary implications. For this initial critical analysis, see Spagnolo, Sull’illegittimità del Protocollo Italia-Albania in materia migratoria, SidiBlog, 2023, only available in Italian). Nonetheless, according to more recent statements of the Italian Minister for Foreign Affairs, the current intention of the Government is to present a ratification bill (i.e. a project of law authorising the ratification). Hence, the Parliament would be allowed to discuss the Protocol – along with some additional implementation norms – and possibly to even prevent its ratification.
Regardless of the future outcome of this procedure, the Protocol is worth some initial remarks.
According to PM Meloni, the Protocol “enriches the historical friendship” between Italy and Albania and aims to enhance the fight against trafficking in human beings and illegal immigration, an objective which is furtherly stressed in the Protocol Preamble.
In a nutshell, the Protocol allows Italy to build two reception centers on Albanian territory, namely one at Shëngjin harbour (located on the coast, 50 km north of the capital, Tirana), and another one located more inland, near the town of Gjadër. Migrants will be disembarked from the Italy-flagged vessels which rescued them at sea and will be identified in the Shëngjin harbour centre, while the actual border or return procedures will be carried out in the Gjadër centre. Albanian authorities will be in charge of security on the external perimeter and during migrants’ transfers (Art. 6 of the Protocol). The centres, however, will be under Italian jurisdiction, managed by Italian authorities and all expenses will be borne by Italy (Annex II of the Protocol).
The centres, expected to start operating in spring 2024, will host up to 36.000 migrants per year. In light of the potentially high number of migrants passing through these reception centres, the Protocol raises questions as to its consequences on families’ migration to the EU.
A first critical issue lies in the fact that it is still unclear whether the agreement falls within or outside the scope of EU law.
On one hand, according to the Commission’s preliminary assessment, EU law would not apply in the centres established under the Protocol, as it is inapplicable outside the territory of EU Member States.
In this respect, it should be admitted that, for instance, Directive 2013/32/EU (the “Asylum Procedures Directive”) applies only if the request for international protection is made in the territory of a Member State, including borders, territorial waters and transit zones (Art. 3, Asylum Procedures Directive) – and so does Directive 2013/33/EU (the “Reception Conditions Directive”, Art. 3(1)). Thus, scholars have noted that the transfer of asylum seekers to these centres would be in breach of Art. 9 of the Asylum Procedures Directive only if applications for international protection were presented on Italian territory or on Italian vessels both in international and territorial waters: see De Leo, On the incompatibility of the Italy-Albania Protocol with EU asylum law, SidiBlog, 2023). On the contrary, EU law would arguably not apply if Italian authorities only allowed the lodging of applications directly from the centres, in Albania (Ibid.).
On the other hand, however, Italy has declared the intention is to consider the centres under its own jurisdiction and to carry out procedures pursuant to EU law (Arts 2 and 4(2) of the Protocol). This may lead to a different reconstruction of the same pattern.
It is too early to establish whether Italy will act consistently with Arts 2 and 4(2) of the Protocol, or it will eventually use the protocol as an instrument to circumvent EU Law (which was also the concern raised by NGOs such as Amnesty International).
In the meantime, it is important to observe that, should EU law not apply, Italy would theoretically be allowed to derogate EU norms of Directive 2011/95/EU (the “Qualifications Directive”), including those providing a broad definition of family member (Art. 2(1)(j), Qualifications Directive) and protecting family unity (ibid. Art. 23). Also the provisions of Directive 2013/33/EU, such as the one ensuring detained families’ unity and privacy (Art. 11(4), Reception Conditions Directive) may be jeopardised. In such circumstances, Constitutional and ECHR standards would be the sole limit to practices in breach of migrants’ fundamental rights.
Moreover, Prime Minister Meloni claimed that the new mechanism will not apply to children, pregnant women and vulnerable people. This exception is absent from the Protocol’s text, thus it remains to be seen whether it will actually apply (see for example the concerns raised by Emergency). Assuming it will be implemented in practice, families migrating together will risk being separated, at least in the event they are not able to prove the family tie to authorities. For instance, pregnant women risk being brought to Italy after their spouse or other adult relatives are disembarked in Albania, at least for the duration of the asylum procedure. Similar problems are incurred by the so called “vulnerable people” (an already problematic concept: Aberg, Detecting Vulnerability in Greek Hotspots, EU Migration Law Blog, 2022), who risk being separated from non-vulnerable relatives. In the case of minor children, ECtHR and CJEU jurisprudence would arguably preclude the separation. Indeed, the CJEU has already stressed the importance of ensuring family unity in asylum procedures, as a key element of the right to family life read in conjunction with the obligation to consider the best interests of the child (C‑19/21, Staatssecretaris van Justitie en Veiligheid (Refus de prise en charge d’un mineur égyptien non accompagné), para. 47). Even in the event that EU law did not apply, the right of the child not to be separated from his or her parents – and, possibly, not to be detained – would still be protected by Art. 8 ECHR, to which both Italy and Albania are subject (inter alia, Olsson v. Sweden (No. 1), 10465/83, para. 59; Bistieva and Others v. Poland, 75157/14, para. 85). Nonetheless, the risk remains in other situations, as in the case when parenthood cannot be demonstrated. Clearly enough, in all such situations the greatest hurdles would be faced by families formed along the route to EU borders, having no official document proving the familial link.
Therefore, the externalisation of asylum procedures put in place by the Italy-Albania Protocol has potential negative implications on families’ route to the EU and can also represent a controversial precedent that can be applied in similar circumstances by other Member States (think, for instance, to Greece and Poland).
Marta Ramat is a Ph.D. Candidate in EU law at the School of Law of the University of Milano-Bicocca
Photo credits: Syrian refugee camp in the outskirts of Athens, via Unsplash license
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