Judges in the immigration unit of Rome's tribunal have posed four questions to the European Court of Justice after the introduction of a government decree listing safe countries for repatriation last month and the return of the second group of migrants from a new Italian-run processing center in Albania.
Four questions have been posed by judges at Rome's migration tribunal to the European Court of Justice (ECJ).
The questions are in line with other referrals coming from courts in Italy (Bologna and Palermo) in recent weeks. Italian magistrates ruling on asylum cases are demanding that the ECJ clarifies whether the current Italian national legislation on migration is compatible with European law.
In particular, they are questioning whether a government decree, approved on October 21, listing 19 countries, including Egypt and Bangladesh, as "safe" can be used in the new accelerated repatriation procedures.
On Friday, (November 8), the judges in Rome decided to suspend their own decision over validation of the detention of seven migrants from Egypt and Bangladesh who arrived in Albania on Friday, instead referring the decision to the higher ECJ authority.
Following the tribunal's decision, the Italian authorities were forced to transport the group of seven migrants back to Italy, they arrived shortly after midnight on November 12.
Read AlsoItaly: One migrant returned from Albania, others expected to return
'Primacy of EU law if incompatible with national legislation'
In a 50-page report the judges stated that the rules introduced by the government using the decree constituted an interpretation of European Union law, and of the October 4 European Court of Justice sentence on which the Rome tribunal's October 18 decision was based.
On October 18, when the first group of 12 migrants were taken to Albania by Italy, the Rome court, nixed their detention saying that neither Egypt nor Bangladesh could be considered "safe countries" because certain parts of the country, and certain categories of people from those countries could be at risk in certain circumstances.
The judges said the decision to suspend judgement and refer the second case of migrants detained in Albania to the EU court was "preferred" to an "autonomous decision confirming the tribunal's own interpretation" in the first case. Since the two interpretations of "safe countries" used by the government and the judges appeared to "diverge."
Read AlsoMore migrants to be taken to Albania under Italy deal despite sentences
Asylum procedure
The immigration magistrates added a sentencing note to clarify their decision on the new case, in which they said that the "criteria for the designation of a state as a safe country of origin are laid out by European Union law" with the judge having the "duty to always and concretely verify" the "correct implementation of the Union's law, which, notoriously, prevails over national law when it is incompatible with it, as also provided for by the Italian Constitution".
The judges also asked the European court whether European legislation enables the national legislator to draft a list of safe countries, in addition to regulating the criteria based on which a country is determined to be safe.
The note added that the designation of a country as safe "is relevant only to identify the procedures to be implemented" in a specific case and does "not prevent the repatriation and/or the expulsion of the migrant person whose asylum request has been rejected or that does not have the legal requirements to stay in Italy."