Italy/Albania memorandum of understanding on migration: cross-border cooperation that contravenes international law

On 6 November 2023, Italy concluded an "agreement" with Albania with a view to relocating the processing of asylum applications for certain foreign nationals to the other side of its borders [1]. The protocol, made public on 7 November, would apply to people intercepted or rescued at sea by Italian authorities, who could be disembarked in the Albanian coastal towns of Shëngjin and Gjader. Persons recognised as "vulnerable" would not be affected by this agreement.

By spring 2024, the agreement provides for the construction of two camps [2] financed by Italy: one for assessing asylum applications, the other for "possible repatriations" [3] (in other words, expulsions). Although the Italian Parliament was not consulted when the agreement was concluded [4], these structures would fall exclusively under Italian jurisdiction. In return for financial compensation and progress in the EU accession process, Albania is said to have agreed to "receive" 3,000 people a month on its territory and to play an active part in security and surveillance activities with its police forces [5]. Strongly inspired by the Australian "Pacific solution" [6] concept, this mechanism is meant to place the two camps under Italian authority, with Italian personnel, by virtue of an extraterritorial status.

Some European institutions initially limited themselves to demanding compliance with national and international law. The European Commissioner for Home Affairs stated, a week after the agreement was made public: "The preliminary assessment of our legal service is that this is not a violation of EU law, but that it is outside EU law" [7]. A particularly ambiguous wording, which was not made clearer when she added: "Italy complies with European legislation, which means that the rules are the same. But from a legal point of view, it’s not European legislation, but Italian legislation (which) follows European legislation".

The Council of Europe’s Commissioner for Human Rights pointed out that "the possibility of lodging an asylum application and having it examined on the territory of the Member States remains an indispensable component of a reliable system that respects human rights", adding that "the Memorandum of Understanding creates an ad hoc extraterritorial asylum system, characterised by numerous legal ambiguities" [8].

Although it has the appearance of a bilateral agreement, this agreement is in line with the externalisation of asylum policies carried out by European states since the early 2000s, projected at a greater or lesser distance from Europe’s borders (from Morocco to Rwanda via Turkey, in particular). Indeed, many countries are made to cooperate with the EU and its Member States in the field of immigration and asylum, in exchange for benefits in terms of trade, foreign policy or development aid.

In this case, Italy, in the name of supposed "burden sharing", is dipping into the toolbox available to States to externalise the processing of asylum applications. Since Albania obtained the status of candidate country for accession to the European Union in 2014, this cross-border cooperation would represent a token of its goodwill, giving it the image of being the key partner of European countries in implementing their policies for selecting and sorting foreign nationals at external borders [9]. This utilitarian strategy that uses migrants as a lever for political negotiation, has already been implemented on many occasions in the past, and the Migreurop network has provided solid evidence of the detrimental effects of such agreements on the rights of migrants [10].

Beyond the opacity and secrecy that surrounded how it was reached, this Memorandum of Understanding raises many questions:

– Even though the agreement does not apply to people considered to be vulnerable, can we not consider that those who have been rescued are de facto vulnerable? That moving people rescued at sea to these Albanian centres is de facto an action that makes them vulnerable ?
– What about the principle of non-refoulement? By sending people outside its territory while their asylum applications are being processed, Italy runs the risk of contravening the principle of non-refoulement, set out in article 33 of the 1951 Convention relating to the Status of Refugees, which forbids the return of refugees and asylum seekers to countries where they would be at risk of persecution [11].
– In practice, its implementation will affect people’s rights depending on the conditions of disembarkation (which will therefore not be the nearest safe place as provided for in international regulations): what will happen to compliance with the asylum application procedure, identification of vulnerability, access to legal assistance? It will also affect the conditions in which people are detained, in a similar way to what happened in hotspots in Greece, where people were held prisoner in open-air camps [12].
– Who will be responsible if rights are violated in these camps? Which law will apply, Italian or Albanian law? How can the effectiveness of rights be guaranteed in a territory located far from the responsible jurisdiction, out of sight?
– Under the terms of this agreement, neither people disembarked by NGO boats nor people arriving autonomously should be affected. How do we know that the Italian authorities will not extend this procedure to all asylum seekers? Doesn’t the agreement also run the risk of jeopardising the conditions under which search and rescue operations for people in distress at sea will be carried out? Will those recognised as vulnerable be sorted from the others on the boat or in Albania?

– Will deportees be deported from Italy or Albania? Serious doubts have been raised by statements made by the Albanian Prime Minister, who claimed that they would be the responsibility of the Italian authorities (although initially this task was supposed to be carried out by Albania).

– Detention would take place during the border procedure and with a view to return, but what about people released in Albania: will they be sent back to Italy or to another State?

– Does this agreement fall under European law or not? The Commissioner for Home Affairs cast doubt on the European nature of the rules that would apply. The Council of Europe’s Commissioner for Human Rights has pointed to the risk of a domino effect "likely to undermine the European system" if other States also decide to transfer their responsibility beyond Europe’s borders [13].

– Will the rules laid down in the political agreement on the European Pact adopted on 20 December 2023 have to be applied on Albanian territory, which is under Italian and hence European jurisdiction?

Finally, there is the question of the exorbitant cost of these population displacements, as well as the cost of the agreement negotiated with Albania to dispose of part of its national territory, and the cost of these camps’ operation.

For all these reasons, the Migreurop network denounces a Memorandum of Understanding that should never have seen the light of day. Assuming that the Italian government persists in this direction, it cannot do so unless European law and the protection of people’s rights are implemented and respected. Starting with the right to seek asylum under the right conditions.

The externalisation mechanisms at work - which are becoming widespread - violate international law with the complicity of national authorities and the complacency of certain European institutions. There is an urgent need to reject this relentless drive to circumvent the law, which is part of a deadly strategy to keep foreign nationals out of sight.