Introduction
The Italy-Albania Protocol concluded in November 2023 is an attempt by Italy to operate an asylum and migration policy off-shore, so that persons subject to Italian immigration control are taken to Albania, for the determination under Italian jurisdiction of their asylum claims and, where applicable, for their expulsion and return elsewhere. For many persons seeking asylum, arrival in Italy (or on an Italian vessel subject to the extra-territorial exercise of Italian jurisdiction on the high seas in the Mediterranean) is their point of entry to the European region. Italy’s establishment of extra-territorial jurisdiction in Albania marks its policy out as substantively different to that attempted by the UK in Rwanda in 2022-2024. How does the Protocol operate and is it compatible with Italy’s legal obligations as regards asylum and non-refoulement?

Legal obligations
Italy makes its own laws in relation to asylum and migration. In addition, it has chosen to be bound by the Refugee Convention, as well as by the European Convention on Human Rights (ECHR) (Italy is a member of the Council of Europe (CoE)). Thus, it has a commitment to Refugee status determination and also to the principle of non-refoulement (a person will not be returned to a place where they risk persecution, torture, or other ill-treatment). Moreover, as a European Union (EU) member state, Italy is bound by applicable EU law in relation to asylum, immigration and border policy. Thus, it is subject to the laws of the EU’s Common European Asylum System and its Pact on Migration and Asylum.

Albania too makes its own laws in relation to asylum and migration. Like Italy, it has chosen to be bound by the Refugee Convention and the ECHR (being also a member of the CoE). However, Albania is not an EU member state and is not bound by EU laws. That said, the Protocol has been concluded against the backcloth of Albanian aspirations to join the EU as a recital to the Protocol makes clear (‘Considerato l’interesse delle Parti a promuovere una crescente cooperazione bilaterale in tutti i settori, anche nella prospettiva dell’adesione della Repubblica di Albania all’Unione Europea’). Thus, in respect of both Italy and Albania, the development of EU laws in respect of asylum procedures, standards of protection, and returns policy is of vital importance. Italy is bound by such laws, while Albania has a strong interest in aligning its own law and policy with their purpose and objectives.

The Protocol
The personal scope of the Protocol extends to ‘migrants’ (article 1) who are defined as third country nationals and stateless persons who either await determination of whether they meet the requirements for entry, stay, or residence in Italy, or who have been determined as not meeting those requirements (‘per i quali deve essere accertata la sussistenza o e’ stata accertata l’insussistenza…’). Thus, it extends both to those who require a determination of rights and those who have had an adverse determination and who stand to be returned to their own country or elsewhere.

Thereafter, Italy is given the right to use two areas in Albania, both of which are identified in the Protocol (articles 3 and 4, annex 1). It may establish facilities there for holding up to a maximum of 3,000 migrants at any one time.
In these two areas, the Italian authorities exercise extra-territorial jurisdiction under Italian and EU laws. Any disputes arising between the Italian authorities and migrants held in these areas are exclusively subject to Italian jurisdiction (‘…sono sottoposte esclusivamente alla giurisdizione italiana…’) (article 4(2)).

For its part, Albania allows the migrants held by Italy in these facilities to enter and stay on Albanian territory for the sole purposes of carrying out border control or repatriation (‘…al solo fine di effettuare le procedure di frontiera o di rimpatrio …’) as required by Italian and EU law and for only for so long as is strictly necessary for such purposes (article 4(3)).

Within the facilities, healthcare is the responsibility of the Italian authorities but in a health emergency, the Albanian authorities must co-operate to ensure that the migrants held there receive necessary medical treatment (article 4(6), (8)).

As regards responsibility for maintaining law and order as well as public security, Albania is responsible in the places outside the Italian-controlled areas and during transfers by land across Albanian territory to and from these areas (article 6(2). Italy has the corresponding obligation within these areas (article 6(3)).

As regards the control of the migrants held in these areas, the Italian authorities must take the necessary measures to ensure that the migrants stay within the areas (‘…assicurare la permanenza dei migranti all’interno delle Aree…’) and must prevent their unauthorised exit into Albanian territory (article 6(5)). In the case where migrants make an unauthorised exit from the areas, the Albanian authorities must bring them back to the Italian-controlled areas (‘…li ricondurranno nelle stesse.…). (article 6(6)).

In respect of Albanian jurisdiction over Italian personnel, as regards things said (spoken or written) and acts done in performance of their duties, Italian personnel are not subject to Albanian jurisdiction (article 7(4)). Outside of the performance of their duties, Italian personnel are subject to Albanian jurisdiction to the extent specified (article 7(5), (6), (8)).

The period migrants are permitted to stay on Albanian territory in the fulfilment of the Protocol’s purpose cannot exceed the maximum detention period allowed under Italian legislation (article 9(1)). In addition, once the Italian authorities have carried out their procedures (in relation to border control and/or repatriation) they must remove the migrants from Albanian territory (ibid.).

As regards access to legal advice and assistance (‘Per assicurare il diritto di difesa…’), Italian and Albanian authorities, subject to the limits of applicable Italian, Albanian, and EU law, must allow access to the facilities in the areas to lawyers and their assistants, as well as to international organisations and EU agencies that provide advice and assistance to people seeking international protection (article 9(2)).

The Protocol is to remain in force for five years and is automatically renewed unless Italy or Albania indicates an intention not to continue in the prescribed form (article 13(2)).

The processing of asylum claims
From its perspective, Italy’s attempt under the Protocol to make use of facilities in an area subject to its jurisdiction in Albania, by holding migrants there while determining their asylum/international protection claims, have not gone well. Legal challenges brought in Italian courts have frustrated Italy’s efforts. Key aspects of why Italy’s offshoring of asylum claims has run into legal difficulty may be picked up from one case in particular that was referred from an Italian court to the Court of Justice of European Union (‘CJEU’) for a ruling on the interpretation of certain EU law requirements.

On 1 August 2025 the CJEU handed down judgment in Case C-758/24 and Case C-759/24 LC and CP v Commissione territoriale per il riconoscimento della protezione internazionale di Roma – sezione procedure alla frontiera II (LC and CP). In that case the CJEU considered a case of the use being made of Italy’s Albanian facility in a case that engaged the EU’s Asylum Procedures Directive (Directive 2013/32/EU). Among other things, that Directive enables an EU member state to use an accelerated procedure for determining an applicant’s need for international protection in prescribed circumstances. One such circumstance is where an application for asylum is likely to be unfounded. In turn, a yardstick by which an application may be measured and determined as manifestly unfounded is where the applicant’s country of origin has been designated as a safe country of origin by the EU state determining the application.

Annex I of the Asylum Procedures Directive provides that:
‘A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive [2011/95], no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.’

(NB Directive 2011/95/EU is the Refugee Qualification Directive that governs that the standards applicable when determining whether a person qualifies for international protection)

As matters stand, the Asylum Procedures Directive does not permit a country to designate a non-EU/third country as a safe country of origin where a part of its territory cannot be so designated or where a clearly identifiable group cannot be considered safe. However, from 12 June 2026, the Asylum Procedures Directive will no longer apply and its replacement, Regulation (EU) 2024/1368 will enter into force. That regulation does allow for such exceptions when designating a country as safe.

In anticipation of the introduction into force of the new EU regulation, Italy had made provision in its law (Legislative Decree No 25/2008) for the designation of a country as a safe country or origin with exceptions for certain categories of persons. On this basis, Bangladesh, among other countries. had been designated safe by Italy.
Under the operation of Italian law and under the Protocol, LC and CP, two Bangladeshi nationals, were rescued at sea by the Italian authorities and taken to an Italian facility in Albania (the Gjadër detention centre). There they applied to the Italian authorities for international protection, that is for asylum. Applying the accelerated procedure based on Bangladesh having been designated a safe country of origin, Italian authorities rejected their application for international protection. However, they were released from detention, whereupon they were transported to Italy. On arrival they brought legal proceedings against Italy’s refusal of their claims for international protection, taking a number of points about the lawfulness of their treatment. To resolve matters as to the correct interpretation of the applicable EU law relevant to the dispute, the Tribunale ordinario di Roma referred several questions to the CJEU for its determination.

The CJEU answered four questions. First it held that the Asylum Procedures Directive (Articles 36-37 and 46) must be read subject to the right to effective remedy and a fair trial (Article 47 of the EU Charter of Fundamental Rights). While Italy was free to designate Bangladesh (and other non-EU) countries as a safe country of origin by means of legislation, that designation had to be subject to judicial review whereby the designation could be tested against the Directive’s criteria (the material conditions) for designation by the national court or tribunal hearing the legal action against the refusal of a person’s application for international protection.

Second, the CJEU held that in order for the judicial protection to be effective, both the applicant concerned, and the court or tribunal seized of the matter, had to be able to have not only knowledge of the grounds for the refusal of the application but also access to the sources of information on the basis of which the third country in question (here Bangladesh) was designated as a safe country of origin. The applicant had to be allowed to defend their rights under the best possible conditions and to be able to decide with full knowledge of the facts whether it was useful to bring their case before the court or tribunal having jurisdiction.

Third, the CJEU held that court or tribunal hearing a case brought against a decision taken on an application for international protection, which had been examined under the accelerated procedures applicable to applications lodged by applicants from third countries designated as safe countries of origin, when verifying whether that designation complies with the material conditions for such a designation, set out in the Asylum Procedures Directive, may take account of the information which it has itself gathered, provided, first, that it satisfies itself that that information is reliable and, second, that it guarantees the parties to the dispute that the adversarial principle is observed.

Fourth, the CJEU held that under the Asylum Procedures Directive an EU member state (such as Italy) is precluded from designating as a safe country of origin a third country which does not satisfy, for certain categories of persons, the material conditions for such a designation.

As can be seen, the CJEU judgment that impaired Italy’s use of a facility in Albania to process claims, was impaired for want of compliance with the applicable EU law. Three points need to be made here.

First, Italy was not using its Albanian facility for determination of international protection claims under its ordinary status determination procedure. Instead, it was using an accelerated procedure permitted where a country has been designated a safe country of origin. It was the use of that accelerated procedure that came untuck in the CJEU’s judgment not the use of an offshore facility in and of itself.

Second, as noted above, the Asylum Procedure Directive will be replaced from 12 June 2026 by a Regulation that may allow Italy to its use of its Albanian facility for this accelerated procedure. Thus, the question of whether Italy may use its facilities in Albania for the offshore processing of asylum claims in this way is by no means concluded.

Third, there remain many other issues that may impair the use of these facilities. Among them are: the criteria for selecting who is to be sent to the facilities; the conditions of control and detention; the nature of reception conditions; healthcare provision; access to legal advice, legal representation and to legal remedies; the fairness of the procedure for Refugee status determination and for determining whether to grant international protection; and the extent to which the use of the facility creates a risk of breach on the non-refoulement principle by virtue of onward refoulement.

An offshore return hub?

In addition to its attempt to make use of its Albanian facilities to process asylum claims, from March 2025 Italy has turned to making laws to enable the provision made in the Protocol for the detention and expulsion (repatriation) of persons determined to have no rights of entry, stay or residence in Italy. Such persons are taken to a facility in Albania under Italian jurisdiction (at present the Gjadër detention centre, operating as a Centro di Permanenza per Rimpatrio), where they may be detained for the maximum period permitted under Italian law while arrangements are made for their repatriation.

As with the use of these facilities to process asylum claims, there are profound concerns about their use to detain and return persons; in respect of the conditions of their control and detention; the nature of the reception conditions there; the extent of healthcare provision; and the extent of access to legal advice, legal representation and to legal remedies.

Moreover, Italy’s use of its Albanian facilities may not be compatible with applicable EU law. The EU Return Directive (2008/115/EU) governs the expulsion of persons illegally staying on the territory of an EU member state (see articles 2(1), 3(2), (5), and 6(1)):
“Article 2
Scope

1. This Directive applies to third-country nationals staying illegally on the territory of a Member State.”

While Italy exercises Italy exercises extra-territorial jurisdiction over its facilities in Albania, those facilities are not Italian territory. Where a person is taken from such a facility to an airport in Albania and removed to a non-EU state/third country, at first blush the Return Directive is not engaged. However, the transfer of a person from Italy, to an Italian facility in Albania, with onward transfer out of Albania to a non-EU state/third country arguably brings the matter within the scope of the Return Directive, as the person is being transferred out of an EU member state (Italy) as part of the process of their expulsion and return. Were that to be so, the standards of protection in the Return Directive (as regards detention (articles 15 and 16), the principle of non-refoulement (article 9), etc., may apply). The question of whether Italy’s use of its Albanian facility is compatible with the Return Directive remains to be tested. However, EU law seems likely to move on and permitting offshore return hubs in third countries. The European Commission has proposed a Regulation to replace the Return Directive (Com (2025) 101/2, 2025/0059 (COD) ) which makes provision as follows:
“Article 4
Definitions
For the purpose of this Regulation the following definitions shall apply:
…
(3) ‘country of return’ means one of the following:
…
(g) a third country with which there is an agreement or arrangement on the basis of which the third-country national is accepted, in accordance with Article 17 of this Regulation.”
“Article 17
Return to a third country with which there is an agreement or arrangement
Return within the meaning of Article 4, first paragraph, point (3)(g) of illegally staying third-country nationals requires an agreement or arrangement to be concluded with a third country. Such an agreement or arrangement may only be concluded with a third country where international human rights standards and principles in accordance with international law, including the principle of non-refoulement, are respected.
…”

If adopted, the Italian model for an offshore returns hub, or something similar, may become appetising to other EU member states.

In addition to the applicability of EU law, as regards the whole process of the transfer of a person from Italy, to an Italian facility in Albania, with onward transfer out of Albania to a non-EU state/third country, Italy remains subject to the protection of fundamental rights as provided for in the ECHR and in its own domestic legal order. Thus, questions such as treatment in detention and the risk of onward refoulement remain germane.

Conclusion
Italy’s use of facilities in Albania and its extension of extra-territorial jurisdiction in particular, is a development in the off-shoring of both the processing of asylum claims and the expulsion of those with no right to remain of the national territory. Neither the UK’s Rwanda Memorandum of Understanding nor its subsequent treated contemplated the establishment of UK extra-territorial jurisdiction. The use of such means and its practical implementation raises serious legal issues that remain to be fully explored. Among them are the selection criteria used; conditions of control and detention; reception conditions; healthcare provision; access to legal advice, legal representation and to legal remedies; the fairness of the Refugee status determination and international protection procedures; and the risk of breach on the non-refoulement principle by virtue of onward refoulement.