Detention of Foreign Nationals in Albania: The Court of Cassation Clarifies 'Secondary' Detention (Judgment No. 17510/2025)

The management of migratory flows and the treatment of foreign nationals awaiting expulsion or rejection measures have long presented complex challenges for our legal system. A particularly topical issue has emerged with the introduction of the Italy-Albania Protocol on Migration and subsequent legislation. The Supreme Court of Cassation, with its recent judgment No. 17510 of May 8, 2025, has provided important clarifications on the lawfulness of the administrative detention of foreign nationals in facilities located on Albanian territory, particularly when an application for international protection is lodged.

The decision of the Court of Cassation, presided over by Judge G. Rocchi and reported by Judge G. Poscia, intervenes in a constantly evolving regulatory context, marked by Legislative Decree of October 11, 2024, No. 145 (converted with amendments by Law of December 9, 2024, No. 187) and subsequent amendments made by Legislative Decree of March 28, 2025, No. 37. The central issue concerned the case of M. P.M. C. and E. E., for whom the Court of Appeal of Rome had annulled a previous order with referral, raising doubts about the correct interpretation of the detention regulations.

The Italy-Albania Protocol and the Issue of 'Secondary' Detention

The Italy-Albania Protocol has established centres for return (CPR) on Albanian territory, such as the one in Gjader, intended to accommodate foreign nationals awaiting expulsion or rejection. The Court of Cassation's judgment focuses on the situation where a foreign national, already detained in one of these facilities, lodges an application for international protection. Italian law provides that the lodging of such an application may, under certain circumstances, affect the lawfulness of the detention. However, the Supreme Court has established a fundamental principle.

In matters of administrative detention of foreign nationals under the procedural regime following Legislative Decree of October 11, 2024, No. 145, converted with amendments by Law of December 9, 2024, No. 187, Article 3, paragraph 2, of Law of February 21, 2024, No. 14, as amended by Article 1, paragraph 1, letter b), of Legislative Decree of March 28, 2025, No. 37, in defining the categories of individuals transferable to the return centre located in Albania in execution of the specific Italy-Albania Protocol on Migration, does not preclude the application of Article 6, paragraph 3, of Legislative Decree of August 18, 2015, No. 142, in the event that the foreign national awaiting the execution of a rejection or expulsion order, hosted at the Albanian facility in Gjader by virtue of a decree validated by the Justice of the Peace pursuant to Article 14 of Legislative Decree of July 26, 1998, No. 286, lodges an application for international protection, with the consequence that the so-called 'secondary' detention of the same remains lawful even after the lodging of the application, as said facility is to be equated, for all intents and purposes, to the return centres existing in Italian territory referred to in Article 14, paragraph 1, of the aforementioned Legislative Decree No. 286 of 1998.

This legal maxim is of crucial importance. The Court of Cassation, in fact, equates the Albanian facilities to the Centres for Return (CPR) present on Italian territory, pursuant to Article 14, paragraph 1, of Legislative Decree No. 286 of 1998 (Consolidated Text on Immigration). This means that, even if the foreign national lodges an application for international protection while in the Albanian centre in Gjader, their detention, defined as 'secondary', remains lawful. The underlying logic is that the Albanian facility, despite being abroad, is considered an integral part of the Italian system for managing migratory flows and detention.

Legal and Practical Implications

The Court of Cassation's decision has several implications:

• Legal Equivalence: The Albanian facilities are legally equated to Italian CPRs, ensuring consistent application of detention regulations.
• Lawfulness of Detention: The detention of a foreign national, even an asylum seeker, in Albanian facilities is not automatically terminated by the lodging of an application for international protection.
• Regulatory Reference: The applicability of Article 6, paragraph 3, of Legislative Decree of August 18, 2015, No. 142, which governs the detention of international protection applicants in specific circumstances, is reaffirmed.
• Protection of Rights: While confirming the lawfulness of detention, the decision does not exclude the need to guarantee all protections provided for asylum seekers, in accordance with the Italian Constitution (Article 13) and the European Convention on Human Rights (Article 5, paragraph 1).

The Supreme Court emphasizes that Article 3, paragraph 2, of Law No. 14 of 2024 (as amended) defines the categories of individuals transferable to Albania but does not prevent the application of regulations on the detention of international protection applicants. This interpretation aims to reconcile the efficiency of migration policies with the safeguarding of fundamental rights, albeit within a framework of administrative detention.

Conclusions

Judgment No. 17510 of 2025 by the Court of Cassation represents a firm point in the interpretation of the Italy-Albania Protocol and its repercussions on the administrative detention of foreign nationals. It clarifies that lodging an application for international protection does not automatically render detention in Albanian facilities, equated for all intents and purposes to Italian centres, unlawful. This ruling is fundamental for legal practitioners, competent authorities, and, above all, for the foreign nationals involved, as it more precisely defines the scope of procedures for managing migratory flows and asylum applications in an increasingly interconnected international context. As always, it remains crucial that the application of these principles occurs in full compliance with human rights and the procedural guarantees provided by national and European law.