The Albanian Constitutional Court gave the green light for the ratification of the agreement with Italy on the management of migration flows. The Memorandum of Understanding, presented by Italian Prime Minister Giorgia Meloni, and her counterpart Edi Rama, approves the construction of two temporary reception centres managed by Italy on Albanian territory.
Italy, therefore, confirms its political inclination towards the externalisation of borders and asylum procedures. Indeed, it goes a step further than the agreements with Libya. To briefly summarise the obsolete policy line: since 2008, with the Treaty on Friendship, Partnership and Cooperation, Italy has inaugurated a practice of push backs at sea to and in cooperation with the Libyan authorities. With the Memorandum of Understanding of 2017, since then renewed every three years, Italy commits to provide technical and economic support for the reorganisation of the Libyan coast guard, in charge of tackling irregular immigration.
The policy of externalised border control has already landed Italy a ruling by the European Court of Human Rights, which with the Hirsi Jamaa ruling of 2012 condemns Italy for violation of the principle of non-refoulement. The Hirsi Jamaa case concerns the appeal of eleven Somali and thirteen Eritrean nationals who were part of a group of about 200 people who left Libya in May 2009. Intercepted by Italian Coast Guard vessels, the migrants were returned to Libya without prior verification of their identities and without being informed. In doing so, Italy violated the obligation of non-refoulement, by returning migrants to where they could be subjected to torture and inhuman and degrading treatment, the right to an effective remedy and the prohibition of collective expulsions, set out in Article 3 and Article 13 of the European Convention on Human Rights (ECHR).
Non-refoulement is one of the pillars of European law and so-called humanitarian law, which is prohibited by Article 78 of the Treaty on the Functioning of the European Union, as it forbids sending anyone to a country where he or she would risk human rights violations. Regardless of the Court's condemnation, Italy, like many other European states, recycles a rhetoric of borders, closures, protection and prevention, through a policy of externalisation and pushes back itself light-years away from the principles of humanitarian law.
The agreement with Albania extended the flow control processes to a real externalised reception system, a procedure envisaged in the agreements with Tunisia and rejected by Saied. The agreement provides for the construction of two hubs, one in Shengjin, Northern Albania, dedicated to lending, identification and screening and the other, further inland in Gjader. The costs for the construction and maintenance along with medical expenses, will be fully covered by Italy.
These centres aim to detain migrants while they wait for their asylum applications to be processed. The goal is to host a maximum of 3000 people in the areas made available by Tirana and to examine up to 36000 asylum requests per year, each in a time limit of 28 days.
The idea of handling asylum applications outside national borders or in a third country is certainly not new. Austria, Denmark and the UK may be considered the anticipators. At the Karner-Braverman meeting, Austria signed an agreement with the UK to adopt a common security policy on the UK-Rwanda model, a plan rejected by the British Supreme Court.
Austria's offshoring scheme differs from the UK's because migrants deported to a third country are allowed to return to Austria if their asylum applications were successful, otherwise they would be returned to their home countries. Under the UK's proposed Rwanda scheme, people would be deported on a one-way ticket to Rwanda to claim asylum, unless they can show that it would expose them to a serious risk of harm. Judges said Rwanda could not be considered a "safe third country" for migrants, thus leading to another historic ruling and the resignation of Suella Braverman.
In this case, however, the opinion of the Albanian Court turned out to be positive. The court had been called upon to rule on the Italy-Albania agreements following two appeals presented by the Albanian Democratic Party and 28 opposition deputies. The agreement was a source of protests for several days, with the opposition party claiming that it violated Albanian Constitution and international conventions ratified by Albania.
The accusation stemmed from the application of Italian legislation on reception in Albanian territory. The Court ruled that the agreement does not harm the territorial integrity of Albania, whose national authorities would be responsible for security inside and outside the centres and during the transfer of migrants.
Although , doubts have emerged from the European Union about the extra-territorial regime and its multiple legal ambiguities. Ylva Johansson, EU commissioner for Internal Affairs, said the agreement is "outside EU law". Johansson's comments don't resolve the protocol's legal uncertainties completely. The first dispute is concerned around the centre's management and the application of EU law outside the borders of the EU: what will practically happen in the case of a centre subject to Italian legislation, and therefore EU rules, but located in a foreign territory? Again, it is not clear whether Italy will be allowed to evade the application of European rules, nor if any legal action by the European Commission can be carried out in the event of human rights violations.
The European Council's preliminary comments reveal few critical issues. How will procedural safeguards be ensured? How can we avoid circumventing the principle of non-refoulement? Moreover, there is no doubt that the centres will be able to function as detention regimes that are illegal, as migrants would be categorically forbidden to leave the Return Detention Centres (CPRs) while awaiting examination.
The next violation is about maritime laws: Italy could set a dangerous precedent, legitimising itself to transfer migrants rescued in its national waters, therefore in its own sovereign state, to a third country. By doing so, it violates the Dublin Regulation, which lays down precise rules for the first entry of migrants, assigning the burden of examining asylum applications to the first country of arrival or the safest port.
Despite this, the Albanian Court's agreed above all things, in conjunction with the report of the European Commission for Human Rights in which Dunja Mijatovic urges Italy to guarantee SAR operations and to respect international conventions on migration. It calls for both the suspension of repatriation operations with Libya and the review of the recent agreement with Tunisia. Mijatovic also expressed concern about the process of criminalisation of NGOs operating in the Mediterranean, NGOs that have unanimously denounced the possible repercussions of the agreement.
Elisa De Pieri, Regional Researcher for Amnesty International, raises these issues in a particularly dramatic way, calling the deal process illegal and unworkable. If ratified, the humanitarian consequences would be devastating for migrants attempting to cross the Mediterranean. The risk is that they would be unable to supervise the application of procedural safeguards for their asylum requests, and above all locked up in detention regimes that they cannot leave until the Italian pronouncement on their fate.
A ruling that could also foresee immediate repatriation, totally nullifying the arduous migratory process and risking sending the migrants back to those countries they have so laboriously tried to leave. The issue is even more dramatic if we look at the recent tragic events in the Italian CPRs: only a few days ago, in the Roman hub Ponte Galeria, a 22-year-old young man from Guinea took his own life. A disaster foretold, given the psychological fragility he had manifested in the interviews with the psychologist: a fragility that the state of detention risks resulting in extreme consequences.
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