Die EU-Staaten handelten «willkürlich, politisch motiviert und ohne jegliche Grundlage», sagt der israelische Aussenminister. Doch die nächste Verschärfung steht schon im Raum.

Die Gewerkschaften nutzen seit Jahren ihre engen personellen Verbindungen zur SPD und ihren Einfluss auf das Arbeitsministerium, um dringend notwendige Reformen zu blockieren. Damit schaden sie dem Standort Deutschland.

Während einer Kreuzfahrt haben sich mehrere Personen mit einer schweren Atemwegserkrankung infiziert. Drei von ihnen starben. Inzwischen werden mehrere Passagiere in Spitälern betreut.

Bisher war der Ausbruch der Hantaviren auf das Kreuzfahrtschiff «Hondius» beschränkt. Jetzt gibt es Infizierte und Verdachtsfälle in mehreren europäischen Ländern. Das weckt Ängste.

Es sollte ein Überlebenswochenende in den Bergen werden. Wir hatten mit allem gerechnet: Wölfen, Bären und marodierenden Wildschweinen – aber nicht mit Ameisen. Die Kolumne «Wild und wundersam».

On 23 April 2026, Advocate General Emiliou delivered his Opinion in Sedrata (C-414/25), the first of three cases pending before the CJEU concerning the Italy-Albania Protocol. The agreement allows the Italian authorities to use migrant detention centres located on Albanian territory under Italian exclusive jurisdiction and to treat them as equivalent to border or transit zones within the meaning of the Procedures Directive. This construction sits uneasily with the territorial assumptions embedded in the EU asylum acquis. The Opinion nonetheless validates this approach as far as the Return Directive is concerned, while normalising the agreement under EU law without adequate legal constraints. The Protocol has been examined by the CJEU in Alace and Canpelli, albeit in relation to accelerated procedures under the Procedures Directive (see Žeravčić, Pahladsingh and Callewaert). The present case concerns, instead, the conduct of return procedures in the Italian-run detention centre in Albania in respect of two third-country nationals who were transferred there and lodged applications for international protection. Advocate General Emiliou advances a permissive reading of EU law that effectively constitutionalises the delocalisation of migration control. Yet it does so on fragile grounds. It accepts capacity constraints too readily, it relies on an overly optimistic assumption that rights can be equivalently protected outside the Union territory, and replaces clear legal limits with vague “comfort signals” (such as the proximity or the supposed institutional reliability of partner States), effectively expanding Member States’s discretion to relocate migration procedures abroad. We argue that the AG’s interpretation lowers the legal threshold for externalisation in three ways. First, it treats capacity shortages as a sufficient justification for delocalisation while disincentivising domestic capacity-building. Second, it relies on optimistic assumptions about the effective protection of rights in offshore settings with contingent and under-scrutinised assumptions. Third, it fails to articulate principled limits on where Member States may relocate migration procedures.

While the following sections develop these points, this contribution does not revisit the observation that the AG’s reasoning stretches the spatial concepts of “territory”, “border” and “transit” zones to a limit – a development that has already been compellingly addressed by De Leo. Still, the specific design of the Italy-Albania Protocol merits a terminological clarification. Seeing that Italy does not delegate powers in migration control to Albania but displaces the exercise of its own state functions to an offshore site placed under its exclusive jurisdiction, we submit that it may be most accurate to refer to this form of externalisation as delocalisation of migration processing. For the purposes of this blog, however, we use the terms externalisation and delocalisation synonymously.

Capacity Shortage as a Pretext for Delocalisation

One of the Italian government’s key arguments in Sedrata, advanced in defense of delocalised processing of migration cases, concerned the alleged insufficiency in domestic administrative capabilities and infrastructure. Advocate General Emiliou accepts this argument with barely a passing thought (paras 71-72). However, given that Member States have repeatedly tried to rely on insufficient administrative capacities to justify exceptional responses, closer scrutiny is warranted. In other contexts, the Court’s previous case law holds that pressures on reception systems are neither unforeseeable nor capable of relieving Member States of their obligations. In Minister for Children, Equality, Disability, Integration and Youth (C-97/24), the CJEU rejected Ireland’s arguments based on exhausted accommodation capacity for asylum seekers, including where linked to sudden migratory pressures. Structural deficiencies or resource constraints cannot justify derogations from reception obligations, stressing instead that EU law provides mechanisms for responding to temporary saturation while preserving basic guarantees. A further counterpoint emerges from Zimir (C-662/23), where the Court made clear that structural or foreseeable capacity constraints cannot be re-characterised as exceptional circumstances justifying derogation, since Member States remain under a continuous duty to adapt resources to predictable pressures. Applying this reasoning mutatis mutandis to return, insufficient capacities should only be accepted as a justification for delocalised processing in very exceptional circumstances. Any other interpretation would risk disincentivising internal capacity-building, instead aggravating already strained administrative systems.

AG Emiliou seems convinced by the Italian government’s argument that delocalisation can serve as a means to increase capacity, but his own analysis suggests the opposite. Delocalising return generates additional infrastructural costs, logistics, supervision burdens, transport demand and judicial coordination problems. Paragraph 78 of the Opinion reads like an inventory of those burdens. This suggests that the AG acknowledges that delocalisation may consume capacity rather than expanding it. If all the extra efforts associated with delocalised processing were meant to build up administrative capacity, why could comparable efforts not be directed toward ensuring compliance within the Member State’s own territory – the ordinary Italian territorial space, marked by the borders children learn when studying school maps?

Overestimating Rights Protection in Delocalised Processing

The AG’s reasoning is characterised by a remarkable degree of optimism regarding the practical implementation of delocalised administrative processing. On several occasions, it highlights that “specific logistical” or “appropriate practical arrangements” may be needed, but also that these may resolve any outstanding problems in delocalised migration processing (paras 80 and 108). Access to legal assistance, immediate release where detention ceases to be lawful, safeguards for vulnerable persons, and effective access to asylum are treated as matters of logistics. In our view, there is a good case to be made that delocalised administrative processing may never be fully equivalent to processes that take place within the territory of a Member State. The presumption that delocalised migration policies can be implemented in such a flawless manner is, at best, a fair-weather presumption.

In any case, increased risks of improper procedures at migration processing centres abroad call for rigorous and easily accessible control mechanisms. AG Emiliou highlights the paramount responsibility of national courts in this regard, including in actions for state liability (para 51). At the EU level, practices of delocalised migration processing should equally require the Commission to take its supervisory role seriously and, if need be, to initiate infringement procedures to ensure that the practical implementation of delocalised migration processing fully respects safeguards in EU law. It may be worth noticing, in this regard, that the co-legislatures have scrapped from the current proposal for a Return Regulation the Commission’s suggestion to establish an independent monitoring mechanism to supervise the implementation of delocalised return processing (see amendments to Art. 17(2)(e), here and here respectively).

The Absence of Meaningful Limits on Geographical Choice of Delocalisation

Another key question in relation to delocalised migration processing is whether States are free to choose the geographical location of their run-abroad centres, or whether any standards of legality should limit this choice. Although international refugee law is premised on the idea of fair burden-sharing, hard limits to the geographical choice of externalisation are difficult to come by. To be sure, previous legal arrangements in EU asylum law insisted that an individual could only be deported to a third state to which (s)he has a connection. This so-called “connection criterion” was aptly dubbed the “anti-Rwanda” rule and would have significantly limited the geographical choice of Member States to send persons to a third country to have their claims processed there. However, such a safeguard may not apply outside the field of EU asylum law, and even in relation to this specific field of law, the EU legislature recently introduced an option for Member States to derogate from said requirement, meaning that it would not serve as a standard limiting States’ geographical choice for externalisation.

Against this backdrop, Advocate General Emiliou suggests that some other limits on the geographical choice could be inferred from EU law. In essence, the AG’s reasoning focuses on the question of whether the externalisation of migration processing could undermine the effectiveness of return. In this regard, the AG observes that Albania is a neighbouring country, separated only by a narrow strait of the Adriatic sea and that, accordingly, the effectiveness of return may not per se be hampered by offshoring (para 69). Such a focus on the effet utile of EU secondary law instruments may allude to a more general limitation on Member States’ geographical choice in delocalising the matter of return. While offshoring the stages of the return procedure to Albania may – arguably – not impair the effectiveness of the procedure, offshoring to other third countries (and regions) may very well undermine the objectives of the Return Directive. In such a situation, AG Emiliou acknowledges that “it would be unlikely that return procedures could be generally conducted in an effective manner” (para 69).

UNHCR has pointed out that externalisation may only further the objective of effective return if it would take place in places from where individuals may actually be able to travel onwards, either by virtue of visa-free or other forms of mobility regimes. If the CJEU were to follow this line of reasoning, this would establish a sound legal benchmark for assessing whether the Member States’ geographical choice for migration offshoring may be acceptable. Besides geographical location, a further argument advanced by the AG is whether the third country’s “political situation and/or legal system might not offer all the necessary guarantees that the third-country nationals detained therein would have their fundamental rights respected” (para 69). Albania’s status as a candidate for membership to the EU and party to the ECHR makes this particular State more institutionally reliable than others.

Comfort Signals as Surrogates for Legal Limits: The Normalisation of Delocalisation

In sum, the Opinion reveals a broader structural problem. The significance of litigation concerning the Italy-Albania protocol lies not simply in the limits it may impose on this specific national practice of delocalisation, but in the way that certain “comfort signals” are mobilised to enable practices of externalisation more broadly. Read in this light, the Opinion sketches a wider logic under which delocalisation may be reconciled with EU law through notions of (presumed) reliability of partner States and practical equivalence of procedures irrespective of their geographical surroundings. All of this risks, in our view, putting safeguards of legality on the backfoot.

This broader logic is not confined to the Italy-Albania agreements but feeds directly into ongoing institutional and political dynamics at both the national and EU levels. As a reminder, the case forms part of an ongoing institutional ping-pong between the Italian government and judiciary, with the CJEU called upon to consider the compatibility of this controversial migration agreement with EU law and indirectly arbitrate the scheme’s legality. The stakes extend well beyond the Italian context, particularly in light of current developments in EU law, including the reform of the Return Directive, debates surrounding “return hubs” (see Bornemann & Brockmann) and the growing political appetite for external asylum processing. In this context, a particular responsibility is now placed on the Court to determine whether firmer limits to delocalisation must be articulated.

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