Andreina De Leo, Maastricht University

Introduction

On the 6^th of November 2023, the President of the Council of Ministers, Giorgia Meloni, issued a press release announcing the conclusion of a Protocol to examine asylum applications in Albania. While the agreement has so far not been officially published, and will not undergo parliamentary scrutiny, its content has been leaked by Italian and Albanian press. The agreement provides for the establishment of detention centres on Albanian territory, but placed under Italian jurisdiction, for the processing of international protection applications, as well as for carrying out return operations for those who do not qualify. The costs of building and managing the centres, as well as any other costs related to asylum processing, return operations, maintenance of security, and health care, will be borne by Italy, in exchange for supporting Albania in the enlargement negotiations and for free use of the facilities. 

Different commentators quickly compared it to other contemporary attempts to shift migration and border management responsibilities to third countries, such as the UK and Danish deals with Rwanda, the interception and return of migrants to Libya by Italian authorities in 2008, condemned in the Hirsi judgement, and other arrangements based on the concept of safe third countries, for instance. However, the Italian-Albanian deal is the first of its kind in the European Union, and raises different and novel legal issues. This analysis will therefore first clarify how it differs from other externalisation practices, and then examine whether offshore processing is allowed under EU asylum law, bearing in mind that the precise details relating to the application of the Protocol have not yet been made public, and will most likely require the passing of an implementing decree.

The concept of externalisation of migration controls

The concept of externalisation, whose precise definition is still under debate, broadly refers to different practices put in place by destination countries to either prevent migrants to get to their territory to seek protection, or to remove them after they reach it without examining their claims, through different techniques aimed at outsourcing migration control functions to third states or private parties without sufficient safeguards to ensure the protection of human rights in accordance with international standards, most notably the prohibition of refoulement and the right to an effective judicial protection. In the EU context, measures usually referred to as externalisation belonging to the first category consists in the outsourcing of border management responsibilities to third countries, such as Libya and Morocco, through financial and technical assistance, in order to enable them to prevent departures. Measures pertaining to the second category relate to the use of the concept of safe-third country or first country of asylum and safe country of origin in the Asylum Procedure Directive (APD) to declare asylum applications inadmissible without assessing the merit of their application (safe third country and first country of asylum) or to examine them on the merit through an accelerated procedure (safe country of origin) after an individual assessment to allow the applicant to rebut the presumption of safety. Notable examples relate to the EU-Turkey Statement and the EU-Tunisia MoU, whereby Turkey committed to readmit asylum seekers under the application of the safe third country concept, and Tunisia committed to readmit its own nationals under the safe country of origin concept.

In both scenarios, migrants either never get to the EU territory, and are therefore never able to acquire a right to access the EU asylum procedure, or they lose their right after undergoing an admissibility / accelerated screening. Their legal status would be thus determined in a third country and by third country authorities under applicable national and international law, without this engaging the responsibility of EU Member States. Conversely, when it comes to the Italian-Albania deal, if it is true that asylum claims would be processed in a third country, this would be done under Italian jurisdiction and in accordance with Italian and European law (see articles 2, 4, and 9). It is thus evident that the Protocol does not outsource international protection responsibilities to a third country, insofar as Italy would remain fully responsible for the examination of the applications. This also distinguishes it from the UK or the Danish attempts to carry out external processing in Rwanda, insofar as in those cases Rwandan authorities would carry out the processing themselves. If one had to find a parallel, a more appropriate comparison would be with the offshore processing in Guantanamo Bay firstly carried out by the United States (US) in the 1990s, whereby the US Immigration and Naturalization Service processed asylum applications of Haitians intercepted at sea in their naval base located in Cuba, allowing those who were recognized as refugees to relocate to the US, and repatriating the remaining ones. Apart from other legal and political considerations, the question then arises: does EU asylum law allow for offshore processing?

Compatibility of offshore processing with EU asylum law

Besides the fact that the Protocol itself refers to EU law, Article 78 TFEU provides the legal basis for establishing a Common European Asylum System (CEAS) comprised of different pieces of secondary legislation, including those regulating procedural aspects of the examination of asylum application in view of issuing a uniform status in the Union, the APD. The applicability of EU law to the matter is thus incontestable. 

When looking at the scope of application of the APD, Article 3 specifies that it applies to «all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States» (paragraph 1), excluding its applicability to «requests for diplomatic or territorial asylum submitted to representations of Member States» (paragraph 2). As for where the examination of asylum applications should be carried out, Article 9 clarifies that asylum applicants should be allowed to stay in the EU Member State – either in the territory or at the border, in transit zones, or in locations in proximity to those areas in the case of border procedures (Article 43) – where they have applied until at least a first instance decision has been taken, unless a person makes a subsequent application or for extradition purposes.

To assess the legality of offshore processing, the first question is then: where would the asylum application be made? The Protocol is unclear in this regard, merely specifying that only state authorities would be allowed to enter Albanian territorial waters. Nothing it is said, however, on whether the migrants to be brought to the Albanian centres would be identified in the territory and then transferred to Italian ships, or transferred directly when saved at sea by state vessels. Since the press release specified that vulnerable applicants would not be part of the scheme, a screening procedure would most likely need to take place. Three different scenarios then open up: 

1. Asylum seekers are brought to Italy for identification before being transferred, which would then most likely imply that their application would be made on the Italian territory, given that the making of an application relates to the manifestation of intention and not the formal lodging and registration (Article 6 APD, as interpreted by case law of the EU Court of Justice (para. 83)): in this scenario, Article 9 of the APD would prevent the transfer.
2. Asylum seekers are identified on an Italian vessel at sea: if it is in territorial waters, scenario 1 applies; if it is on the high seas, one could argue that scenario 1 would also apply insofar as the Italian Code of Navigation equates jurisdiction on a state vessel on the high sea with Italian territory (Art. 4).
3. Asylum seekers are brought directly to Albania, and screened there, and the application is considered to have been submitted there: this situation seems to fall outside the scope of Article 3 (1) and (2) APD. Paragraph 3, however, specifies that the APD procedure can nonetheless be applied «for any kind of protection falling outside of the scope of Directive 2011/95/EU». This arguably indicates that while the APD does not allow for extraterritorial processing of EU asylum applications in view of granting a permit for international protection in accordance with the Qualification Directive(QD), Italian authorities would be nonetheless allowed to use the procedure to grant a different permit with national validity, different from either EU refugee status or subsidiary protection, with migrants however retaining the right to apply for asylum in the EU. However, this does not seem to be the intention of the Italian Government, since the Protocol specifically refers to applicant for international protection (Article 9). 

Applicable EU law therefore does not seem to allow for the external asylum processing envisaged by the Protocol. Therefore, the issuing by Italian authorities of permits for international protection after an extraterritorial processing not allowed under the APD would arguably constitute a violation of Article 3 (2) TFEU for altering the scope of common EU rules, and most specifically the CEAS. 

It should be also kept in mind that EU rules on asylum are currently under negotiation, which however also do not seem to allow extraterritorial processing. The Council’s compromise text of the new Asylum Procedures Regulation (APR) provides for an extensive use of border procedures which, akin to the current APD, could be carried out in «proximity of the external border or in a transit zone as a general rule, or in other designated locations within their territory» (Article 41f). And if one might wonder whether the Italian authorities intend to consider Albania in proximity of its external maritime border (term mentioned in the preamble of the Protocol), and thus an appropriate location for carrying out border procedure, Article 9 still gives applicant the right to remain in the Member State for at least the duration of the first instance procedure, with the exception of subsequent applications (Article 43), therefore arguably precluding an interpretation of the fiction of-non entry based on considering a third country as the border and its vicinity, even if the APR passed in the form of the Council’s approach. In the case in which a different interpretation prevailed, and extraterritorial processing was not considered as incompliant per se, carrying out the procedure in a third country could nonetheless lead to other sort of legal issues relating to how to guarantee the fairness of the procedure and the right to effective judicial protection, especially when it comes to proper access to legal aid and adequate judicial review.