Commentary
The random removal of migrants to Albania has no legal basis
This is a procedure in radical conflict with European law, which it tries to circumvent altogether by instituting precisely what the latter forbids: generalized detention.
The first thing one needs to ask when hearing the news that 16 migrants have been forcibly transported to Albania is how that selection was made. How and why were these 16 people separated from the others rescued at sea, who instead end up in Italy, where they have access to ordinary asylum procedures and are housed in open facilities?
One doesn’t need to be an expert to understand that this selection will affect the legal status (and lives) of the people concerned. However, the screening operations for forcibly sending someone to Albania are not regulated by any norm, not even something on the level of a ministerial rule, as if it were normal to do this on the basis of mere common practice.
The implementation of the Protocol between Italy and Albania gives rise to enormous legal issues. The underlying assumption is the Italian government’s claim that it is possible to apply Italian and EU law on the entry and stay of foreigners in areas under Italian jurisdiction but on Albanian territory, “insofar as compatible.” But this assumption is as shaky as ever. None of the existing legal texts seem to allow for an application of EU law outside the territory (or borders) of member states, and neither do the new asylum regulations.
Therefore, persons rescued in international waters are being forcibly taken by Italy to a third country for the sole purpose of limiting the exercise of procedural safeguards.
Those who will be detained in the centers in Albania – which are also far from the urban centers of that country: the center in Gjader is a perfect example of a confinement camp – will not be able to communicate with the organizations providing legal assistance, but only with the manager of the center, a non-independent entity because they act on behalf of the Interior Ministry. Those confined there are highly unlikely to be able to consult an Italian lawyer, as they cannot leave the center (how can they choose a lawyer out of a list of names of strangers? And once they choose, in what language will they speak? Who will be the interpreter? How would a call even take place? Via a cell phone the migrant doesn’t have, or which may not have service in Albania? Via a computer provided by the managing agency? How many minutes would they have available?). These are all questions that go to the heart of the principle of effectiveness of a norm, that is, the principle that an enumerated right must be exercisable in practice.
The question of the effectiveness of the law becomes particularly acute in the case of an appeal against the rejection of an asylum application, a decision that will be made after a hearing conducted via videoconference. Under the new procedure, the time to file an appeal is drastically reduced, from fifteen to seven days. Seven days to look for an available lawyer in Italy (how?), provide them with all the elements to support the appeal (how and where will the confidential interviews be conducted?) and for the lawyer to write and file the petition. All in seven days! All this appears to violate the right to defense enshrined in Article 24 of the Constitution. Or, we must ask: is it that these people are not supposed to have such a right at all, under the principle of “a different law for the enemy”?
And that’s not the end of it. In the centers being used as hotspots in Albania, detention is mandatory for asylum seekers subject to the accelerated border procedure, but the cardinal principle of European law is precisely the prohibition of blanket detention and the requirement of an “individual assessment of each case” (Directive 2013/33/EU, Article 8) on whether to implement detention, which is allowed only “if other less coercive alternative measures cannot be applied effectively.” The fast-track border procedure planned to be implemented in Albania altogether excludes the possibility of considering a measure other than detention, which is thus the only possible option. So, this is a procedure in radical conflict with European law, which it tries to circumvent altogether by instituting precisely what the latter forbids: generalized detention.
Finally, there is an issue that has been much discussed in the media in recent days, but which isn’t always explained in clear terms. Applying this special border procedure and detention is possible only if the asylum seeker comes from a country that has been declared to be safe. But what is a “safe country of origin” in European law? It is a country where, in a general and consistent manner, there is no persecution (defined in Article 9 of Directive 2011/95/EC), no torture, no inhuman or degrading treatment or punishment, and no threat of indiscriminate violence in situations of international or internal armed conflict.
The October 4, 2024 ruling of the European Court of Justice sets out two important principles of law. The first is that security conditions must be met everywhere on the country’s territory in order for the country of origin to be considered safe (and many of the countries designated by Italy as “safe” are absolutely not safe under this criterion). The second principle, no less important (although it has been little discussed), is that a court is required to assess in concrete terms whether the applicant's country of origin is safe in the sense indicated by European law; if it is not, the procedure becomes an ordinary one, without detention. In many rulings, the competent courts have held that Tunisia, Egypt, Bangladesh and other countries are not safe and as a result have invalidated the detention of asylum seekers in Italian hotspots.
It will now be up to the Court of Rome’s specialized asylum section to assess the possible legitimacy, or lack thereof, of the first practical implementation of the agreement with Albania, with reference to the concrete individual cases of the people who have been forcibly taken there.
Originally published at https://ilmanifesto.it/migranti-chi-in-italia-e-chi-no-una-selezione-senza-basi-giuridiche on 2024-10-16