Italy-Albania migration deal falls ‘outside’ EU law, says Commissioner Ylva Johansson

“The preliminary assessment by our legal service is that this is not violating the EU law, it’s outside the EU law,” Johansson, who is in charge of the home affairs portfolio, said on Wednesday afternoon.

The comments are the first high-level political reaction from Brussels to the nine-page protocol surprisingly announced last week by Italian Prime Minister Giorgia Meloni and her Albania counterpart, Edi Rama. Under the deal, Italy will outsource the processing of up to 36,000 asylum applications per year to the Balkan country.

The procedure will apply to migrants who are rescued at sea by Italian authorities and then disembarked in the Albanian coastal town of Shëngjin, where two centres will be built at Rome’s expense and exclusively governed under Italian jurisdiction.

Migrants hosted in the hubs will not be allowed to leave the premises as they wait for their claims to be examined, which should not last more than 28 days. According to Meloni, pregnant women, children and vulnerable people will be excluded.

The launch date has been set for spring 2024, although the protocol still needs to be translated into proper legal acts and undergo ratification by the Albanian parliament.

“I consider this to be an agreement with a European scope,” Meloni said, next to Rama.

If eventually applied, the deal will represent the first time a member state of the European Union offloads parts of its asylum responsibilities to a third country, an idea that has been floated by Denmark and Austria in reaction to the UK-Rwanda plan, which was deemed unlawful by the British Supreme Court on Wednesday morning.

Italy’s project has raised concerns about the extraterritorial application of EU law, as the claims submitted in the Albania centres will be made with the goal of receiving international protection in Italy – not in Albania. 

“EU law is not applicable outside EU territory,” Johansson said.

But, she added, given Italy’s membership in the bloc and the mandatory adoption of common legislation, the rules that will apply inside the Albania centres will effectively be European in nature and mimic the framework that applies on Italian soil. 

“If the Italian laws are being applied, people should be examined under Italian law by Italian authorities and after a (positive) asylum decision, being brought to Italy, or if not, back to the country of origin, and if not possible, back to Italy,” Johansson said.

“Italy is complying with EU law, so that means that this is the same rules. But legally speaking, it’s not the EU law but it’s the Italian law (that) follows the EU law.”

Johansson’s comments, however, do not fully resolve the legal uncertainty surrounding the protocol. It’s still not clear if Italy will be allowed to deviate from EU norms on Albanian soil and apply a different asylum procedure to the claimants who are transferred to the centres. It’s also not clear if potential violations that take place inside the premises could prompt legal action by the European Commission, as the executive appears to have distanced itself from the deal’s implementation.

Another yet-to-be-clarified question is whether Italy will be allowed to transfer migrants rescued in Italian waters, which are considered part of its sovereign territory, to a third country, as opposed to those rescued in international waters. 

The legal assessment is preliminary and has not yet been made public. Euronews has contacted the European Commission asking for further information.

Amnesty International previously warned the Italy-Albania protocol “could have devastating consequences for people seeking asylum, who could be subjected to lengthy detention and other violations, outside the scrutiny of Italian judicial authorities.”