The migration agreement signed between Italy and Albania highlights the growing divide between national institutions and the European establishment regarding tackling illegal immigration. While the European Commission and several member states are increasingly sympathetic to—and even copying—these extraterritorial solutions, Giorgia Meloni’s government is facing a high-level legal challenge at home: an opinion from the Supreme Court of Cassation—Italy’s highest court—declaring the protocol unconstitutional and incompatible with European law.
The pact, which allows Italy to transfer and process asylum requests in centres located on Albanian territory, was introduced by the Italian government as an innovative tool to deter mass arrivals across the Mediterranean. However, since its signing in 2023, it has encountered numerous legal hurdles, forcing repeated amendments. The most recent and significant obstacle is the report from the Court of Cassation, which openly questions the procedure’s legality.
The court warns about the ambiguity in the definition of “migrants” and the potential violation of fundamental rights guaranteed by the Italian Constitution, EU law, and international treaties. One of the most relevant criticisms concerns the possibility of prolonged detention without a clear legal basis—which could amount to arbitrary detention—and the absence of procedural safeguards on Albanian soil. The report fails to explain why detaining a person who attempts to enter a country illegally constitutes arbitrary detention.
Paradoxically, while the Italian government must defend the protocol before its judges, European institutions not only refrain from condemning it but view it favourably, also as a way to appease segments of the electorate increasingly disillusioned with current policies, including among the most ardent Europhiles.
Brussels is watching this externalisation of migration control with growing interest, which aligns with the general trend of turning third countries into ‘buffers’ for immigration to the continent. The recent European Pact on Migration and Asylum also includes similar measures, although with more legal safeguards. However, there is no mention of reducing immigration or preventing millions of people from arriving in Europe unnecessarily. Quite the opposite: the trend is to legalise illegal immigration by every possible means.
This double standard reveals a contradiction: what is tolerated—and even encouraged—at the European level undergoes intense judicial scrutiny at the national level. Giorgia Meloni, who has made migration control one of her political trademarks, finds herself caught between external support and internal resistance. European Affairs Minister Tommaso Foti did not hesitate to denounce judicial “obstructionism.” At the same time, Forza Italia went as far as to accuse the judiciary sector of being infiltrated by far-left activists.
The legal battle is only just beginning. Although the Court of Cassation’s opinion is not binding, it could set a precedent in lower courts and even open a path to the Court of Justice of the European Union.
