“The preliminary assessment of our legal service is that this doesn’t violate EU law, it’s outside EU law,” Johansson, who holds the home affairs portfolio, said on Wednesday afternoon.
The comments are the first high-level political reaction from Brussels to the nine-page protocol, which was surprisingly announced last week by Italian Prime Minister Giorgia Meloni and her Albanian counterpart Edi Rama. Under the deal, Italy will outsource the processing of up to 36,000 asylum applications a year to the Balkan country.
The procedure will apply to migrants who are rescued at sea by Italian authorities and then disembarked in the Albanian coastal town of Shëngjin, where two centres will be built at Rome’s expense and will be under Italian jurisdiction only.
Migrants housed in the centres will not be allowed to leave the premises while they wait for their applications to be processed, which should take no more than 28 days. According to Meloni, pregnant women, children and vulnerable people will be excluded.
The launch date has been set for spring 2024, although the protocol still needs to be translated into proper legal acts and ratified by the Albanian parliament.
“I see this as an agreement with a European dimension,” said Meloni, standing next to Rama.
If the deal goes ahead, it will be the first time a European Union member state has handed over some of its asylum responsibilities to a third country – an idea floated by Denmark and Austria in response to the UK-Rwanda plan, which was ruled illegal by the UK Supreme Court on Wednesday morning.
Italy’s project has raised concerns about the extraterritorial application of EU law, as claims made at the Albanian centres are made with the aim of obtaining international protection in Italy – not Albania.
“EU law does not apply outside EU territory,” said Johansson.
But, she added, given Italy’s membership of the bloc and the obligatory adoption of common legislation, the rules that will apply inside the Albanian centres will effectively be European in nature, mimicking the framework that applies on Italian soil.
“If Italian laws are applied, people should be screened by Italian authorities according to Italian law, and after a (positive) asylum decision, they should be returned to Italy, or if not, to the country of origin, and if that is not possible, back to Italy,” Johansson said.
“Italy is complying with EU law, so it is the same rules. But legally speaking, it’s not EU law, it’s Italian law (that) follows EU law”.
Johansson’s comments, however, do not fully resolve the legal uncertainty surrounding the protocol. It’s still not clear whether Italy will be allowed to deviate from EU standards on Albanian soil and apply a different asylum procedure to applicants transferred to the centres. It’s also unclear whether possible violations inside the centres could lead to legal action by the European Commission, as the executive seems to have distanced itself from the implementation of the agreement.
Another unresolved issue is whether Italy will be allowed to transfer migrants rescued in Italian waters, which are considered part of its sovereign territory, to a third country, as opposed to those rescued in international waters.
The legal opinion is preliminary and has not yet been made public. Euronews has contacted the European Commission for further information.
Amnesty International has previously warned that the Italy-Albania protocol “could have devastating consequences for asylum-seekers, who could be subjected to prolonged detention and other violations outside the control of the Italian judicial authorities”.