Martina Faggiani
Italy-Albania Memorandum of Understanding: Is the Controversial Agreement Illegal and How Does It Relate with the UK-Rwanda Scheme?
On November 6 Italian and Albanian Prime Ministers Giorgia Meloni and Edi Rama announced a deal between their countries concerning the outsourcing of the processing of asylum claims by refugees, moving it from Italy to the Balkan country.
The Memorandum of Understanding entails that Italy will finance the construction of one hub for screening the applicants and one centre for permanence and repatriation, where it will send around 36,000 asylum applications per year to Albania, starting in the spring of next year.
According to its authors, the deal is a European-wide agreement, a strategy that could be taken as a reference model in the management of migration flows in the Mediterranean, preventing irregular immigration and human trafficking.
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However, this solution seems to be raising numerous concerns about legal issues: Albania is not a EU-member, while the hubs will work under Italian jurisdiction, implying that EU law will be applied outside EU territory. Moreover, under normal conditions, asylum seekers are able to move outside centres while they wait for the processing of their request. Nevertheless, during their stay in Albania, migrants will not be able to leave the centres: if they do, they will be returned to Albanian authorities. Even more critical is the issue of repatriation: interviewed by Il Fatto Quotidiano, Prime Minister Rama declared that it would be Italy to “take back” the people rejected.
From a first look, this deal appears like a cumbersome system that leaves space for legal ambiguities: who will be taken accountable in case of human rights abuses and will the European Commission have the right to intervene in Albania? NGOs like Amnesty International argue that there is a real risk that people seeking asylum will be subject to long periods of detention and unmonitored violations.
Why does it feel like a deja-vu?
Many critics of the MoU have used a scary comparison with the UK-Rwanda deportation plan, declared unlawful just a week after Italy’s announcement, which is certainly not adding popularity to the deal. Let us take a step back, analyse the UK's proposal and find out why the Supreme Court rejected it.
Proposed during Boris Johnson’s administration, the UK-Rwanda Migration and Economic Development Partnership allows the transfer of asylum seekers who arrive illegally in the UK to Rwanda, where they will apply for permission to stay. Those refused will face removal to their country of origin or previous legal residence. The UK will provide funds for the integration of each person that will be given asylum. However, no one will be eligible to return to the UK.
The Supreme Court declared the legislation unlawful on two grounds. First, as the UN high Commissioner for Refugees stressed, Rwanda is not a safe third country for refugees. The African state has a poor human rights record, with numerous examples of torture, extrajudiciary killings and limited media freedom. Second, there was evidence in the terms of the deal that the asylum seekers could be at risk of refoulement, leading to a very serious breach of international law.
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What is refoulement and why is it illegal under international human rights law?
The 1951 UN Refugee Convention is the document that set international standards on the protection and fair treatment of refugees around the world and States’ legal obligations in the matter. Non-refoulement is one of its core principles.
Article 33 - Prohibition of expulsion or return ("refoulement")
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Is this also the case for Italy?
During a speech in the Chamber of Deputies, Italian Foreign Minister Tajani declared that Italy’s protocol is not comparable with the discussed UK-Rwanda scheme.
“There is no outsourcing of asylum applications to a third country. And it does not derogate from internationally guaranteed rights, which are indeed repeatedly reaffirmed in the Protocol. Albania will soon join the European Union and is part of the Council of Europe. Derogations would have been impossible” [Tajani, November 21,2023]
In addition, the centre will welcome more than 3000 people and the plan will exclude vulnerable subjects, minors and pregnant women, leading to the so-called “selective landings”.
After a thorough comparison, it can be concluded that the UK’s and Italy’s deals are different, in the sense that Italy is not transferring migrants to another jurisdiction but it is moving its own jurisdiction altogether.
However, logistic problems and doubts regarding repatriation persist, especially among the opposition’s benches. The risk of refoulement is around the corner. In fact, if a migrant should lose the right to remain in the hubs, for example because his application for asylum is refused, Italy will transfer him immediately outside the Albanian territory: it is not clear where he will go, nor whether he will be taken to Italy.
The Council of Europe Commissioner for Human Rights Dunja Mijatović expressed the shared concerns about this plan, fearing this indeed could become a reference model for other European countries, but not a virtuous one.
“The Memorandum of Understanding (MoU) between Italy and Albania on disembarkation and the processing of asylum applications, concluded last week, raises several human rights concerns and adds to a worrying European trend towards the externalization of asylum responsibilities[...]The MoU is indicative of a wider drive by Council of Europe member states to pursue various models of externalizing asylum as a potential ‘quick fix’ to the complex challenges posed by the arrival of refugees, asylum seekers and migrants. However, externalization measures significantly increase the risk of exposing refugees, asylum seekers and migrants to human rights violations. The shifting of responsibility across borders by some states also incentivises others to do the same, which risks creating a domino effect that could undermine the European and global system of international protection” [Mijatović, November 2023]
Many worry that this type of solutions to heavy migration flows are evidence of a pattern followed in recent years by EU member states and tolerated by EU institutions, characterized by rigid border policies and circumvention of international human rights law. Only time will tell us if the discussed agreement is a good example of shared responsibility among Mediterranean countries or just another attempt to dodge the law and hide human rights abuses outside national territory.
Sources:
Agenzia ANSA
Goldner Lang, I., & Nagy, B. (2021). External Border Control Techniques in the EU as a Challenge to the Principle of Non-Refoulement. European Constitutional Law Review
Lami Giuseppe, Il testo del protocollo d’intesa tra Italia e Albania sui centri per migranti, Il Post
Liboreiro Jorge, Italy-Albania migration deal falls 'outside' EU law, says Commissioner Ylva Johansson, Euronews
McDonnell Emilie, UK Supreme Court Finds UK-Rwandan Asylum Scheme Unlawful, Human Rights Watch
Memorandum of Understanding between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an asylum partnership arrangement.
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