ECJ Legal Opinion Backs Offshore Migrant Detention—With Rights Caveat
Advocate General Nicholas Emiliou stated that EU law does not, in principle, prevent a member state from setting up detention facilities outside its own territory.
A sign points visitors in the direction of the Ancien Palais building of the CJEU’s Palais de la Cour de Justice.
By Luxofluxo – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=107742752
Advocate General Nicholas Emiliou stated that EU law does not, in principle, prevent a member state from setting up detention facilities outside its own territory.
An opinion by an advocate general at the European Court of Justice has found that the Italy-Albania migration protocol can be considered compatible with European Union law, provided that the rights of migrants are fully safeguarded.
The agreement, signed in November 2023 by Italian prime minister Giorgia Meloni and Albanian prime minister Edi Rama, allows Italy to establish and operate detention and repatriation centres on Albanian territory under Italian jurisdiction.
Italy is to finance and operate the centres designed to fast-track the processing of migrants arriving from ‘safe’ countries and therefore unlikely to be eligible for asylum. Migrants were already sent to the centres, beginning in October 2024, but were promptly sent back to Italy after Italian judges ruled they did not meet the criteria to be detained there.
The legal questions arose after two migrants, initially detained in Italy under expulsion orders, were transferred to a centre in Albania, where they applied for international protection. Italian authorities issued new detention orders, but the Court of Appeal in Rome refused to validate them, citing concerns over compatibility with EU law. The case was then referred to Italy’s Court of Cassation, which sought clarification from the EU’s top court.
In his opinion, Advocate General Nicholas Emiliou stated that EU law does not, in principle, prevent a member state from setting up detention facilities outside its own territory. However, he stressed that all guarantees under EU asylum and return procedures must continue to apply. These include access to legal assistance, interpretation services, contact with family members, and protection for vulnerable individuals such as minors, including access to healthcare and education.
The opinion also clarified that while asylum seekers generally have the right to remain during the processing of their claims, this does not necessarily require that they be held within the territory of the member state responsible for examining the application.
An earlier ruling by the European Court of Justice supported Italian judges who had blocked transfers to Albania, finding that countries cannot be designated as “safe” if adequate protection is not guaranteed to all groups within their population. Courts also raised concerns about migrants’ ability to challenge such designations.
Italy has since adjusted its list of so-called safe countries, while continuing to defend the Albania-based system.
The EU court has indicated that upcoming changes to European legislation, expected in June 2026, may introduce exceptions for clearly defined categories of migrants, potentially affecting how such arrangements are applied in the future.
