EU court adviser backs Italy's migrant centers in Albania

Italy's controversial scheme to send asylum-seekers to detention centers it set up and runs in Albania does not fall foul of European Union laws, a legal adviser to the bloc's high court said Thursday.

Nicholas Emiliou, an advocate general at the European Court of Justice, issued a legal opinion saying Italy should be allowed to send migrants to Albania as long as they are afforded the usual rights asylum-seekers are entitled to, such as access to lawyers, translators and medical care.

Emiliou said the detention centers in Albania should be deemed legal because they are run by Italy and come under Italian jurisdiction. He added the centers should be permitted "as long as the individual rights and guarantees of migrants under the European asylum system are fully maintained."

However, asylum law experts blasted Emiliou's reasoning, saying it was flawed and threatens to strip asylum-seekers of their rights.

"It would magically turn non-EU territory into EU territory via some mystical legal alchemy," said Steve Peers, an expert on human rights and asylum law at Royal Holloway, University of London, in an email.

Under the EU's legal system, advocates general examine cases pending before the Luxembourg-based Court of Justice, the bloc's top court, and their opinions provide its judges with guidance on how to rule. Although such opinions are not binding, the court's rulings often mirror their advice.

In this case, Peers doubted the Court of Justice would "fully agree" with the Emiliou's advice because "it is very poorly reasoned Trump-style nonsense" that contradicts both EU asylum law and the Court of Justice's case law. In the EU, asylum-seekers have long had a right to claim refuge in the first EU country they reach and remain there until their case has been heard by a court.

The Court of Justice ruling on Italy's Albanian centers is critical because other EU countries are looking at following Italy's example. If the court upholds the legality of such centers, it could become standard practice to transfer migrants outside the EU.

Luca Masera, a law professor at the University of Brescia in Italy who specializes on migration, said it would be a heavy blow for asylum-seekers' rights if the Court of Justice agrees with Emiliou.

"It would be a significant step toward externalizing the right to asylum, which in practice means the death of the right to asylum," Masera said in an email.

He said sending asylum-seekers out of Italy before they have had a chance to get their cases examined would upend the principle that people in need have a right to protection.

However, across Europe attitudes are hardening against migrants and the EU has begun implementing laws and policies to make it easier to deport them and seal off borders.

Andreina De Leo, a researcher at Maastricht University specializing in EU and migration law, said other countries would be more likely to follow Italy's example if the Court of Justice sides with Emiliou.

"It could open the door to similar models," De Leo said in an email. But she added Emiliou "set a very high bar" by requiring the Albanian centers to abide by "EU law standards."

So, even if the high court sides with Emiliou, she said it would be hard to run a migrant center outside the EU and still comply with EU laws.

"The guarantees provided by EU law depend on material and institutional conditions that are not easily transferable" to countries outside the bloc, she said.

For example, she said lawyers, advocates and monitors are guaranteed access to detention centers in Italy, and that might be hard to fulfill in Albania. She also questioned whether asylum-seekers in Albania would receive the level of medical care they get in Italy, especially when it comes to psychiatric care.

She added that lawyers would find it much harder and more expensive to help asylum-seekers housed in Albania.

"Geographic distance and limits on in-person meetings make it more difficult to adequately prepare a defense and comply with the very short deadlines for appealing decisions," she said.

In Italy, Emiliou's finding was an initial win for far-right Prime Minister Giorgia Meloni, who was voted into office in September 2022 in large measure for her tough stance on migrants.

As part of her plans to stop migrants, in November 2023 Meloni signed an agreement with Albanian Prime Minister Edi Rama to allow Italy to transfer asylum-seekers and migrants to two centers in Albania.

The plan was met with sharp rebuke from human rights advocates worried migrants sent to Albania would be deported before their asylum claims could be properly heard.

Italian courts sided with those concerns and have mostly blocked Italy from using the centers as intended to the annoyance of Meloni.

Meloni turned the judicial obstruction to her Albania scheme into a centerpiece to her efforts to overhaul the judiciary. But her reforms were rejected by voters in a March constitutional referendum, marking her first major political setback.

The case Emiliou looked at involved two migrants sent to Albania after they were detained in Italy and found to be in the country illegally.

After they were sent to Albania, the migrants applied for asylum in Italy. The identities and details of the two migrants were not disclosed in court documents.

Their cases reached the Court of Appeal in Rome, which ordered them returned to Italy after finding the Albania centers were not allowed under EU law.

The Italian Interior Ministry appealed to the Court of Cassation, Italy's high court. The Court of Cassation then asked the EU high court to determine whether the centers are in line with EU law.

Italy's Interior Ministry did not reply to a request for comment Thursday.

Masera said that even if the Court of Justice permits Italy to house asylum-seekers in Albania, Italian courts might question the legality of the centers on grounds asylum-seekers' claims are not handled properly.

Courthouse News reporter Cain Burdeau is based in the European Union.