The deal allowing Italy to outsource the processing of asylum claims to Albania is not in breach of EU law because it falls "outside" EU law, says European Commissioner, Ylva Johansson. 

The plan or ‘Protocol’, agreed last week, has been criticized by human rights groups and has prompted comparisons with the British government's scheme to send asylum seekers to Rwanda, ruled unlawful by UK Supreme Court.

On Wednesday (November 15), Johansson said of the Italy-Albania deal: "The preliminary assessment by our legal service is that this is not violating EU law, it's outside EU law." Her remarks suggested that the scheme could not be challenged before the EU Court of Justice.

Under the agreement, translated into English by the Odysseus Network, a group of legal experts on immigration and asylum in Europe, two camps will be opened in Albania next spring, one to screen migrants on arrival and a second to detain them while asylum applications are processed. It provides for as many as 3,000 cases to be processed a month.

The Italy-Albania deal differs from the UK’s Rwanda plan, because although the camps will be located outside the EU, they will operate under Italian jurisdiction, with Italian staff.

Johansson said "EU law is not applicable outside EU territory, but Italian law is", but she did not clarify how this squares with Italy's obligations as a member of the EU.

With no precedent for such a deal, however, it is unclear how it would work in practice. Tineke Strik, a professor of migration and asylum law and a member of the European Parliament, said the Commission’s assessment was made without knowing the details. On the media platform X, she added: "This encourages all Member States to 'outsource' asylum seekers who fall under their responsibility, to third countries. And to refrain from solidarity."

The Albanian government said Wednesday it has put forward a law to parliament that will approve the deal with Italy. The Reuters news agency reported that it was not clear when parliament will vote.

Human rights concerns

Despite Johansson’s comments, other European officials and international organizations have expressed concerns about the Albania-Italy agreement.

Late on Wednesday, the UN migration agency IOM issued a statement in response to the UK Rwanda ruling, saying that offshore processing of asylum seekers posed legal, ethical and operational challenges.

"It also puts the rights and dignity of migrants at risk, potentially in contravention of international law," the statement said. 

The Council of Europe’s Human Rights Commissioner Dunja Mijatovic, also said earlier this week that the Italy-Albania agreement was "worrying for human rights."

Amnesty International and other human rights groups and aid agencies have described the deal as "illegal and unworkable."

People rescued at sea by Italian authorities … are under Italian jurisdiction and cannot be taken to another country before their asylum request and individual circumstances have been examined,” said Elisa De Pieri, a researcher at Amnesty International.

German outsourcing plans boosted

The Commission’s initial assessment of the Italy-Albania deal comes as the German government is considering a similar plan. Earlier this week, German Chancellor Scholz said he would look "very closely" at the Italy-Albania agreement. Germany is currently conducting a review on whether the assessment of asylum claims in third countries would be in line with international law. 

The UK court ruling on the Rwanda scheme – though that plan was different from one likely to be adopted by Germany – was seen by some as a clear answer to any such outsourcing plan. 

"Removing people without an asylum procedure is a breach of human rights. …Conclusion: Unlawful," said Jürgen Trittin, a German Greens MP on X.

Ann-Veruschka Jurisch, from the liberal FDP party, welcomed the judgment. "This creates guidelines that we can take into account," she told Euractiv, a news website. Germany could avoid violating human rights laws by ensuring that applications were checked by the UN Refugee Council, she added. 

The FDP’s migration spokesperson, Joachim Stamp, said the UK judgment had left the door open for third-country procedures. He told Spiegel magazine, "I stand by my assessment that a third-country regulation is desirable, but we do not have a suitable state that is willing and able to do this in accordance with the rule of law."

With Reuters