The Italy/Albania asylum treaty reaches the CJEU: what are the issues?

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Pudelek, via Wikimedia Commons

 

Is the Italy/Albania deal on housing asylum-seekers a model of the future, to be emulated by the rest of the EU, and the UK – or is it destined to be an expensive failure, like the UK’s Rwanda policy? The fate of the treaty may rest on its compatibility with EU law, and tomorrow’s hearing at the CJEU – in which it is asked to answer several questions from an Italian court on this point – will be the first time that the EU court will have the opportunity to address some of the issues arising from the treaty directly.  What are the issues that the court will address? How might it address them? And what are the possible implications going forward?

Background

As explained in the summary of the national court’s proceedings, the Italy/Albania deal entails moving to Albania some of the asylum-seekers whom Italy at first sight believes to come from ‘safe countries of origin’. The asylum-seekers stay in Albania while their claim for asylum is processed by Italy, applying Italian law – including EU law, which defines the ‘safe countries of origin’ concept. If they win their cases, they are accepted into Italy; if they lose, Italy attempts to remove them.

The CJEU has only given one prior ruling on the substance of the ‘safe country of origin’ concept – its ruling last October on the Czech government’s designation of part of Moldova as ‘safe’. In my discussion of that judgment I summarised the rules on ‘safe country of origin’ in the original 2005 asylum procedures directive, the 2013 asylum procedures Directive (which currently applies to asylum applications), and the 2024 asylum procedures Regulation, which forms part of the recent asylum pact (which will first apply to applications made from July 2026). The definition of ‘safe country of origin’ is more fully laid out there; this blog post focusses on the specific issues directly relevant to the challenges to the Italy/Albania treaty. (It should be noted, though, that the designation creates a rebuttable presumption of safety, which the asylum-seeker can challenge in their particular circumstances; but the application may be fast-tracked and the suspensive effect of an appeal may be limited).  

In the October judgment, the court ruled that it breached EU law to designate part of Moldova as a ‘safe country of origin’, because the current 2013 procedures Directive – unlike the previous Directive or the Regulation applying in future – does not provide for only part of a country to be designated as ‘safe’. The judgment also clarified some elements of the substance of designating a country as ‘safe’ (namely, whether the supposedly ‘safe’ country invoking a derogation from the ECHR always prevented such a designation; the court ruled that it did not, that derogation only being a factor to consider), and on the procedure of challenging such designations in a national court.

Although the October judgment did not directly concern the Italy/Albania treaty, it had an indirect impact on that treaty, which was coincidentally about to be implemented for the first time in practice. Because of the CJEU judgment, Italian courts ruled against detaining asylum seekers in Albania, because Italian law, like Czech law, had also designated some non-EU countries as ‘safe countries of origin’ in part only. Attempting to save the policy, the Italian government adopted a new list of ‘safe countries of origin’, now eschewing the partial designation of any countries. But this list was challenged in turn, and multiple Italian courts have prevented further detentions in Albania, sending a number of questions to the CJEU about the interpretation of other aspects of the ‘safe country of origin’ rules in EU law. In the meantime, the Albanian detention centres, built at great cost to the Italian taxpayer, lie empty except for sheltering stray dogs – to the fury of the Italian government and a confused Elon Musk. But might the doggos nevertheless someday have to make way for human detainees after all?  

The cases before the CJEU

Among a number of cases sent from the Italian courts, the CJEU chose to fast-track two: the ‘Alace’ and ‘Canpelli’ cases. These are fake names invented by the court (applying its usual policy): the former is from Bangladesh, but ‘Alace’ is probably the least Bengali name ever; while the latter sounds like a posh brand of pasta. Presumably the Court’s judgment in these cases will be relevant to answering the questions in the other pending cases (see, for instance, Ortera, Mibone, Capurteli and Leusi), and more broadly determining if the Italy/Albania treaty can still be implemented, and if so, whether any limits may apply.

There are four questions for the Court to answer in Alace and Canpelli. First, does EU law preclude a national legislature from designating a country as a ‘safe country of origin’ itself? Secondly, does EU law require the sources taken into account when designating a country as ‘safe’ to be ‘accessible and verifiable’, as not doing so may complicate a legal challenge to the designation? Thirdly, can the courts use information from sources other than those referred to in the directive (namely ‘other Member States, [the EU asylum agency], UNHCR, the Council of Europe and other relevant international organisations’), when reviewing the designation of ‘safety’? Finally, can a Member State designate a country as ‘safe’ where there are groups of people who are not safe there (for instance, LGBT asylum-seekers, who are specifically mentioned in some of the other Italian court references to the CJEU)?

We can never be absolutely certain how a court will rule, but my answers to those questions (I’m not predicting that the CJEU will agree) would be as follows: there’s nothing in the Directive to prevent a national legislature from designating a ‘safe country of origin’; the sources used when making the designation must be public, to ensure effective judicial review; the list of sources which can be used to make the designation are non-exhaustive (‘including in particular’), so it should follow by analogy that the courts can also use other sources for judicial review of the designation; and under the current law, a country of origin must be safe for everyone before it can be designated as such. The latter should follow by analogy from the Court’s previous judgment on listing part of a country as ‘safe country of origin’, which took account of the legislative history: the prospect of designating a country of origin as ‘safe’ in part was explicitly provided for in the previous Directive and the Regulation applying in future, but not in the current procedures Directive, which suggested that its omission from the current law was deliberate. Likewise the prospect of designating a country of origin as ‘safe’ for some groups was also explicitly provided for in the previous Directive and the Regulation applying in future, but not in the current procedures Directive.

Impact of the future judgment

We can’t fully assess the impact of a future judgment before it is handed down. But while it is possible that the future judgment may criticise aspects of how Italy applies the ‘safe country of origin’ rule, it might still nevertheless be possible for Italy to correct those errors and still apply at least some amended version of the rule to asylum seekers that it wishes to remove to Albania during the processing of their claims. If necessary, the EU might decide to consider bringing forward the application of parts of the future Regulation, or quickly using its power to pass an emergency asylum law.

There might, of course, be further challenges to any amended Italian law, or to EU law itself. For instance, any attempt to provide in EU law that national designations of ‘safe country of origin’ cannot be judicially reviewed, or to provide for hurdles limiting such judicial review, would arguably be invalid as a breach of Article 47 of the EU Charter of Fundamental Rights, which provides for the right to an effective remedy.

So there’s a decent probability that some form of Italy/Albania treaty will be applied in practice – albeit perhaps not as widely as the Italian government hopes. A more significant barrier to the proliferation of such treaties in future may be the reluctance of non-EU countries to agree to them (cf, in a different context, the CJEU judgment ruling that Turkey’s refusal to readmit asylum seekers prevented Greece from deciding that asylum applications made by the asylum seekers in question are inadmissible on the grounds that Turkey is a ‘safe third country’), or at least the limited capacity of such countries (cf Rwanda’s capacity to take only a small proportion of those crossing to the UK on ‘small boats’).