Europe's plans to outsource asylum applications to curb the influx of migrants come up against major legal obstacles.
According to the Federal Office for Migration and Refugees, 204,000 asylum applications were filed in Germany in the first half of 2023.
Some European countries are looking to outsource asylum applications to third countries in a bid to cope with migration pressures.
Susan Fratzke, an expert at the Migration Policy Institute told Euronews that the idea is gaining ground in mainland Europe: "European countries are increasingly interested in the possibility of processing asylum applications outside the EU's borders". Denmark, Italy, Germany and Austria are considering this solution to slow the arrival of migrants.
According to Tania Racho, a researcher at the University of Paris-Saclay and a member of Désinfox Migrations, asylum is a "burden" that governments are trying to offload.
"European governments see this policy as a way of facilitating the return of people who do not need protection. Their application is rejected: they are sent back from a third country and never enter the EU", added Fratzke.
Italy reached an agreement with Albania on 6 November to transfer migrants rescued at sea while they wait for their asylum applications to be processed.
Philippe De Bruycker, a Professor of Asylum and Immigration Law at the Université Libre de Bruxelles, said that this was "a political gesture on the part of [premier] Meloni to show her electorate that she is taking action on the migration issue". In De Bruycker's view, their relocation could cost more, "since a camp will have to be built in Albania at Italy's expense, managed, staff transferred and, of course, legal aid organised for asylum seekers on the spot".
Risk of differential treatment
While it does not apply to minors, pregnant women and other vulnerable people, the project has put a number of other issues under the spotlight.
"The Memorandum of Understanding creates an ad hoc extraterritorial asylum regime, characterised by numerous legal ambiguities", said the Council of Europe's Commissioner for Human Rights, Dunja Mijatović. "In the absence of legal certainty, essential human rights guarantees and the obligation to answer for violations may not be respected", she added.
"There is a risk of differential treatment between asylum applications examined in Italy and those examined in Albania", confirmed Carmine Conte, a legal expert at the Migration Policy Group, as "Albania is not obliged to comply with European asylum legislation", he continued.
Is European law applicable?
The agreement provides for the construction of two centres in the ports of Shengjin and Gjader, which could pose a problem in terms of compliance with international and European law.
"European law does not allow all asylum seekers to be automatically detained and requires an individual examination in each case. Therefore, detention should not be the first response", explained De Bruycker.
Another problem raised by legal experts was the violation of the fundamental 'non-refoulement' principle which is enshrined in the Geneva Convention. It forbids a country receiving asylum seekers from returning them to a country in which they would be in probable danger of persecution based on race, religion, nationality, membership of a particular social group or political opinion.
"If people present themselves as asylum seekers to the Italian authorities and are forcibly displaced thereafter that is refoulement", said Racho.
However, an initial legal assessment by the European Commission indicates that European law is not applicable outside EU territory.
But the agreement also raises moral questions.
"It normalises the externalisation of member states' responsibilities", said Ivana Belén Ruiz Estramil, a researcher at the University of Coimbra.
So far, no member state has successfully deported asylum seekers from the EU to a third country.
On Wednesday, the UK Supreme Court quashed the government's plan to send asylum seekers to Rwanda.
It ruled that the planned partnership with Rwanda was illegal. Britain's top court said asylum-seekers faced “a real risk of ill-treatment” and could be returned by Rwanda to the home countries they had fled.
"If the UK, which is no longer in the EU, couldn't do it, I'd be surprised if Italy could", said Racho. Many questions about the feasibility of such a project remain unanswered.