The Advocate General of the Court of Justice of the European Union (CJEU) has delivered a significant legal opinion supporting Italy’s approach to returning irregular migrants, including the use of “hotspots” in third countries bordering the EU.
Advocates General at the Court are independent legal advisors who assist judges by delivering impartial opinions on complex cases. They do not take part in the final judgment or vote on decisions but instead analyse the legal issues in depth and suggest how EU law should be interpreted.
While their opinions are not binding, they are often followed by the Court and therefore carry significant influence.
The opinion was issued yesterday following a request for a preliminary ruling submitted by an Italian court. That sought clarification on whether Italy’s migration return procedures comply with EU law. National courts can refer such questions to the CJEU when doubts arise over the interpretation or validity of European legislation.
At the heart of the Advocate General’s analysis were two key issues: Whether Italy’s rules on returning irregular migrants respect EU directives on asylum and return procedures; and whether the use of “hotspots” located in third countries is compatible with EU legal standards, including fundamental rights protections.
For Italy, the “hotspot” model is part of a broader strategy of externalising migration management for the EU, with the country acting as one of the main entry points for irregular migrants.
This approach is based on a November 2023 bilateral agreement between Italian Prime Minister Giorgia Meloni and Albanian PM Edi Rama, under which Albania agreed to host Italian-run facilities.
Italy has since begun developing centres where migrants intercepted at sea, rescued in international waters, or found without documents on Italian territory can be transferred for identification, screening, and initial asylum processing.
Although located outside EU territory, these facilities are intended to operate under Italian jurisdiction, effectively creating a legal buffer zone before formal entry into the EU.
The project includes two main sites in Albania, at the port of Shëngjin and in Gjadër. The Italian Government has committed hundreds of millions of euros over several years for construction, security, logistics and operations.
At EU level, the initiative has received cautious political backing, especially from European Commission President Ursula von der Leyen. While it has not been formally endorsed as an EU-wide model, the EC has expressed openness to “innovative solutions” in migration management, including external processing and enhanced co-operation with third countries.
The policy has triggered significant tensions between the Italian Government and parts of the judiciary, though.
Several courts have raised concerns about whether transferring migrants to third countries complies with constitutional guarantees and EU law, especially regarding the right to asylum, access to legal assistance and effective judicial oversight.
These concerns have led to legal challenges and conflicting rulings, slowing down implementation and fuelling institutional friction, ultimately leading to appeals at the European level.
The Advocate General concluded that Italy’s framework is broadly compatible with EU law, provided that essential safeguards are upheld, such as access to legal remedies and individual assessments.
On the issue of hotspots, the opinion acknowledged legal sensitivities but found that their use outside EU territory can be lawful if they ensure adequate protection for migrants and do not undermine the right to seek asylum.
If the Court ultimately follows the Advocate General’s reasoning, the decision could have wide-ranging implications. It would effectively validate Italy’s current approach and may encourage other member states to pursue similar external processing arrangements.
A final ruling from the Court is expected in the coming months.
