Italy: What next for the government's Albania plan?

The Italian government’s plan to process asylum seekers in Albania has hit a stumbling block. The government insists it will go ahead anyway, but if it is contrary to EU law, can it really proceed? InfoMigrants asked an expert from the Italian juridical association ASGI.

Italy claims its Albania plan is in step with European policy, but Italian judges have ruled that legally, it contravenes European and human rights law. Where does the plan go from here?

An Italian naval ship, the Libra, is currently docked in Sicily. According to the Italian news agency ANSA, the ship is waiting for orders to move just outside Italy’s national waters, to take more migrants rescued on their way to Italy towards the centers in Albania.

But given the decision by Rome’s tribunal last week, ordering migrants taken to Albania back to Rome to have their claims processed, can the Albanian system really work?

Lucia Gennari is a lawyer and associate with ASGI, the Italian Association for Juridical Studies on Immigration. InfoMigrants put some of its questions to her:

IM: The Italian government says it wants to go ahead, but can it, legally speaking?

LG: Well, they passed a new decree on Monday. So, it seems that the way they are hoping to move ahead is to enshrine a list of safe countries of origin in law. But we know that judges are not obliged to apply [Italian] laws that might go against European Union principles and judgments and directives.

To us the passing of this decree seems to be less about substantially changing things, from a legal perspective, and more about signaling that if there is a decision in the future where a judge rules that the person who comes from a country on the list should have their asylum claim heard anyway, they can accuse the courts of being politicized and trying to interfere with the policies of government.

What they did with this decree was remove countries from the list that had territorial exceptions, arguing that the EU Court of Justice (ECJ) ruling referenced by the Rome Tribunal applied only to these territorial restrictions. This is true, but also the ECJ was very clear that for a country to be considered safe, it has to “uniformly and systematically respect” human and civil rights.

There is also an ongoing case before the ECJ on this very topic. It is very likely that there will be a second [European] decision that will exclude the possibility of considering a country safe when there are exceptions for certain categories of people. We have for example Bangladesh, which has a lot of exempted categories of people.

The other thing they did, was to include the possibility of appealing at the court of appeal the possibility of administrative detention. Before you could only appeal at the high court, and that takes a long time. So previously, if a judge decided to revalidate the detention of someone, there was no way for the state to restart that detention. The new decree would make that possible.

So, I think this is how they are hoping to keep going with the Albania protocol.

The Italian naval ship Libra is currently in Augusta, it was the same ship that took the asylum seekers to Albania last week | Photo: Reuters

IM: The navy has a ship waiting in Augusta, is it possible for the Italian government to send that ship out and pick up more people? Or are they perhaps waiting for nationals from countries that are not Egypt and Bangladesh to try and take them to Albania?

LG: I don’t know why they are waiting. Perhaps it is because there is currently bad weather in the Mediterranean and perhaps there are not so many departures. I don’t think it is about trying to find nationals from other countries, because the logic will be the same.

The mechanism is that they collect people who were rescued by other smaller Italian ships. The people are selected on board the rescue ship and some are brought to the Libra and some are sent to Lampedusa and others are sent back to Albania, but they have to be in international waters.

IM: Does the Italian government’s decree regarding safe countries remind you of the former British government’s attempts to declare Rwanda safe above the ruling of the supreme court?

LG: Yes, I don’t know in detail the mechanism for Rwanda. I think there are some differences, and perhaps the Italian government learned from the Rwanda plan, which failed completely. There is one crucial difference between Rwanda and Albania, and that is that in the Italian government’s plan, everyone who is brought to Albania, there is this fiction that they are still on Italian territory. All the laws that apply are the same as in Italy. It’s Italian law, the procedures are the same, at least theoretically. I think in practice there are probably a lot of differences, but, the UK wanted to hand over their responsibility of assessment of asylum claims to the Rwandan authorities, and this is a very big difference.

File photo: Italy's Albanian reception centers will run according to Italian law, this is a major difference from the UK's failed Rwanda plan | Photo: Vlasov Sulaj/AP/picture alliance File photo: Italy’s Albanian reception centers will run according to Italian law, this is a major difference from the UK’s failed Rwanda plan | Photo: Vlasov Sulaj/AP/picture alliance

Another big difference is the people who go through this Italian plan would never actually enter Italy. Even if they are on Italian state ships, which are technically considered Italian territory, this remains a legal fiction. These individuals are not arriving in Italy and then being detained in another place.

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IM: But if the procedure is ‘as though it was in Italy,’ why don’t they just build the centers in Italy and detain people there if that is what they want to do? Why are they in Albania?

LG: I can imagine that from the government’s perspective, it is about symbols. They want to show they are keeping people away from Italy and that they are efficient. They want to show how tough they are and that people are kept far away.

From our perspective, it is also an attempt to isolate people. To make asylum procedures more difficult, more ineffective. If you look at how they did it, within 24 hours, an escape from Libya, the risk of drowning, then you arrive on a ship, in a detention center, you are the whole time subject to Italian police and authorities, you don’t know what is happening to you, you are completely isolated from the outside. On one day they register your asylum claim, conduct an interview and reject your application. The following day, you have a hearing, via computer, with a judge in another country. You can only see your lawyer and a judge via a screen.

This is a very huge violation of asylum rights. You need time to prepare, collect documents, and understand the process. Speak with someone, speak with social assistance, legal assistance, have a proper medical screening. And to speak to your lawyer.

One of the people sent to Albania was represented by a colleague. The lawyer asked to be able to speak with the person before the hearing and this was denied. So, there are a lot of possibilities where we believe asylum rights are being violated within this system, not to mention the personal freedom of the detainees.

IM: Do you think the Italian government can make the Albania model work in the way they outlined? Or will there be more legal cases every time a group is transported there?

LG: I don’t know. If the higher EU and constitutional principles don’t change, then any future decisions should remain the same. But of course, there will be different people judging different cases.

I don’t know if it is well known outside Italy, but there is currently a sustained attack on the judiciary in general and in particular on the judges who made these decisions at the Rome Tribunal last week.

This really started one year ago, when judges in Catania began to question cases of administrative detention during the border procedure in Sicily. There were personal attacks from members of the government towards these judges.

File photo: European Commission president Ursula von der Leyen has praised Italy’s Albania plan and indicated she wants more ‘innovative solutions’ in a similar vein to bolster the EU’s migration policies in the future | Photo: Yves Herman / Reuters

IM: How long might it take for the government to launch and fight an appeal?

LG: The state has already appealed the 12 decisions, so they are taking it to the high court. It usually takes one year or one and a half years. They might be quicker.

When you appeal the asylum claim, that should also normally take a year or more, definitely not months. But that is in normal situations. It is also not normal that they asked for asylum, had an interview and were rejected so quickly, within 24 hours, so I don’t know.

IM: If the Italian government manages to process someone in Albania in the future and sends them back to their home country, is it possible that they could then be recalled to Italy because of one of these future court decisions?

LG: Yes. That has already happened in other cases. There are already court decisions about unlawful repatriation of asylum seekers, so that could happen again?

IM: Can the Rome tribunal’s decision be overturned? If so, how?

LG: The Rome Tribunal’s decision will stand, because the people were brought to Italy, and they cannot be returned to Albania. But because the state has appealed, the supreme court (Corte di Cassazione ) can overturn that decision.

IM: What would happen then?

LG: If the appeal court found that the Rome tribunal was wrong, they can establish a principle for future decisions about detaining people. The Court of Rome decided on the lawfulness of the order to detain these people for four weeks, because they asked for asylum at the border but came from safe countries of origin. So the Rome tribunal did not make a decision about their asylum claims, but said that Bangladesh and Egypt couldn’t be considered safe because of the EU court of justice ruling, and therefore since you cannot apply border procedures to them, they can’t be detained [in Albania] because they go together.

So we now have two appeals going through, one is from the applicants, appealing the decision to reject their asylum claims and have them heard again, and the second is from the state that wants to overturn the court of Rome’s decision to disapply the border procedure and administrative detention.

IM: Can the government’s Albania plan ever work or is it going to fail?

LG: I hope it will fail, because it is a huge attempt to overturn democratic principles. There is a very serious risk that you establish a system that has the purpose to detain people at any cost and neutralizes the possibility of them having a fair decision of their asylum claims.

We think that not applying proper asylum procedures is unlawful, so we hope it fails because of the cost to our democratic principles. An attack on the democratic constitution is a problem for everyone.

File photo used as illustration: Decisions handed down by the European Court of Justice (ECJ) in Luxembourg are considered to be binding and take precedence over national legislation | Photo: Imago Images/P. Scheiber

IM: The Italian government says it is in step with European ideas, and the new EU Pact on Migration and Asylum provides for the possibility of accelerated border procedures and deportation hubs outside the EU. In future, could Italy’s plans actually be in line with European policy and European law might change?

LG: Yes, I think partially. Not in the sense that new EU reforms allow for the delocalization of asylum procedures. They are definitely going in similar directions and detaining asylum seekers at the borders.

I believe that implementing a system like the proposed Albania model or the EU pact will be logistically difficult. To put in place a process where each individual receives a detention order, is appointed a lawyer, has their detention reviewed by a judge within 48 hours, and can access committees for rapid asylum claim reviews seems to me still far from reality.

The EU pact appears to want to formalize this kind of system, giving a superficial appearance of legality. But there will be different legal challenges coming down the line if and when that happens.

In my view, implementing these measures would compromise the constitutional systems in Europe, and also you can’t compromise EU treaties that are above these directives. If they try and implement what they say in the pact, there will be a lot of conflict with the fundamental rights system.

Italy: What next for the government’s Albania plan?

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