Outsourcing Asylum Seekers: an Innovative Way to Deal With Migration or a Breach of International Law?

1. Introduction

In November 2023 Italy and Albania signed a deal, which would have allowed Italy to build in Albania, two new migrant holding centers which would host around 36,000 migrants per year. The objective of the agreement https://ipr.blogs.ie.edu/ an Innovative Way or a Breach of surged: the outsourcing of asylum seekers to third countries. in Italy in a shared agreement with Albania, called the of Migration”, but not only. The United Kingdom also with the African country of Rwanda, under an agreement (“MEDP”). The Italian policy is more recent and the Labour Party’s win in the latest General Elections and under the lens of international law reveals many interesting international law, in the field of migration, is the principle of of customary international law, is included in many legal Protocol, relating to the Status of Refugees; Charter of the main issue with the kind of policies mentioned, is The concerns are especially understandable, as countries members of the EU, or in general can not ensure following of the U.K. was deemed unlawful by a judgement of the Labour government; in the case of Italy instead, the plan is for Italy would be to lighten its welcoming system and be able to process more requests at the same time, without occupying space on its own territory. What Italy is effectively trying to achieve is to offshore asylum requests to a third country. However, Italy has not been the only country working to put into practise such a strategy. In fact, the government of the United Kingdom had previously attempted to strike a deal with Rwanda to outsource asylum seekers to the African country. The U.K. and Rwandan governments entered into a Migration and Economic Development Partnership (“MEDP”), although this was later struck down by the U.K.’s Supreme Court, because of the risk of refoulement that asylum seekers would face once they had arrived in Rwanda. Italy’s deal is still in place, although with many complications, highlighting a very fine line between a fast way of dealing with migration and breaching international law. So throughout this paper I aim to analyse, with the aid of the most relevant legal instruments, to what extent the outsourcing of asylum seekers to third countries, as in the Italy-Albania and U.K.-Rwanda schemes, can be considered compatible with the countries’ obligations under European and international law.

2. Background

In the last decade migration has increasingly become problematic to manage for European countries: crises such as those seen in Syria, Iraq, Afghanistan, and also the neighbouring Ukraine, have generated constant fluxes of migration which swarmed European countries. The number of asylum requests in the European Union peaked in 2015 with a massive figure of 1,216,860, slowing down after this, with an absolute low during the Covid-19 pandemic. In recent years, asylum requests have soared again, one of the most affected EU countries being Italy, receiving 151,120 applications, over the 911,960 total EU applications in 2024. Such high numbers generated increasing worry among local populations, which reflected a shift undertaken by right-wing parties, and governments, towards making immigration policies the main focus of their electoral campaigns and political agendas, seen especially in the case of Italy. 2.1 The Case of Italy When Meloni received the duty to form a new government in 2022, it was clear that something in the matter of immigration was going to change. Early on, her government devised a plan with Albanian Prime Minister Edi Rama, friend and ally of Meloni, to build two migrant holding centers in the balkan country, in order to offshore some of the asylum requests that Italy receives every year and the numerous migrants that land on the Italian shores every day. This strategy was deemed necessary as part of a plan to lighten the load of arriving individuals, which Italy alone has been handling with quite a few difficulties. The ‘Protocol to Strengthen the Collaboration in Matters of Migration’ between Italy and Albania was signed in Rome on November 6, 2023, and since then the two reception centers have been built on Albanian territory, with an estimated expenditure of $710 million. The centers are fully managed and paid for by the Italian government, which also retains jurisdiction over said hubs under the previously mentioned protocol. On October 16, 2024, the first migrants were sent to one of the centers in Albania, coming from Egypt and Bangladesh. Their stay did not last long, as within days, an Italian court ruling ordered these migrants be sent to Italy immediately. This was just the start of the many complications that the Italian government would face in enforcing their plan. After numerous attempts to transfer more migrants to Albania, the Italian government, facing several legal setbacks, decided in April of 2025 to repurpose the centers, from reception to repatriation. The centers for repatriation are displaced all over the Italian territory and serve as facilities where people without a regular residence permit can wait up to 18 months before being repatriated. Since October 2025, the centers have been operating with weekly arrivals, however occupancy is said to be very low and around 70% of the migrants processed in Albania are sent back to Italy and do not end up experiencing repatriation. 2.2 The Case of the United Kingdom Italy is not the only country to attempt such a strategy, with some similar cases notable in recent history, one of the most evident ones which involved the United Kingdom. On April 14, 2022 the British government, then led by Boris Johnson, and the government of Rwanda led by Paul Kagame, announced the ‘Migration and Economic Development Partnership’. Similarly to Italy, the objective of the agreement for the U.K. was to handle a smaller number of asylum requests, in order to make the process more efficient. Under the U.K.-Rwanda Asylum Partnership, migrants would have been sent to Rwanda, before their asylum claims were heard and then passed on the hands of Rwandan authorities to handle the requests on behalf of the United Kingdom. This new plan sparked numerous debates in the British media and was criticised heavily by the opposition, then the Labour Party. The plan was initially put to an end by a judgment of the United Kingdom’s Supreme Court, which ruled the partnership to be unlawful. However, Rishi Sunak, who had succeeded Johnson as Prime Minister in October of that year - following Liz Truss’ brief 45-day stint - attempted to put the partnership into place again. Even after several modifications in the agreement, the Conservative Party was still not able to make it work before losing the General Election to the Labour Party in July 2024. The new government scrapped the plan on day one and declared they would not continue with it.

3. Discussion of Findings

3.1 The perspective of International Law International Law has at its own disposal a large variety of tools that deal with matters of migration. The most important sources of international law are conventions and treaties that have been signed through the last century, and are complemented by a substantial number of norms that have become part of customary international law over the years. One of the most important mechanisms is the 1951 Geneva Convention, together with the successive 1967 Protocol, relating to the Status of Refugees. The Convention aims to define what a refugee is, provide them with a legal status and enumerate a list of rights and duties concerning them. 3.2 The Principle of Non-Refoulement One of the principles that is present in the 1951 Geneva Convention and 1967 Protocol is the principle of non-refoulement. Article 33 of the Convention defines: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” The principle of non-refoulement does not apply only if the refugee has been convicted with final judgement, or is considered to be a peril to the security of the hosting country. This principle, however, does not preclude states from expelling refugees in general, but it poses as a condition that in the case when an expulsion is planned, it must move towards a third state that is deemed safe for the refugee, and not going to be used as a form of discrimination against the expelled refugee. The term “safe”, when referring to a third country, is often taken lightly; however, it is for international law one of the most fundamental distinctions, as it is instrumental to the application of a norm which is part of customary law and affirmed in numerous legal mechanisms. As a general rule, a state is deemed safe if the principle of non-refoulement is applied there effectively as well. 3.3 European mechanisms for Non-Refoulement As mentioned before, the principle of non-refoulement is present in numerous treaties and conventions, with great examples found in the series of treaties that belong to the European Union. One of these legal instruments is the ‘Charter of Fundamental Rights of the European Union’, which supplements the European Convention on Human Rights, and has been legally binding for all member states since 2009, with the entry into force of the Treaty of Lisbon. Articles 18 and 19 of the EU Charter deal with matters of asylum and expulsion, making it legally binding for EU members to apply the 1951 Geneva Convention, with the obligation to non-refoulement further emphasized in Article 19. Another treaty which is core to the European Union is the Treaty on the Functioning of the European Union, which defines how the EU can effectively function and exercise its powers. Within this treaty, Articles 77-80 provide the legal foundations for EU asylum directions. Specifically, Article 78 notes that the common policy developed by the member states has to be in “compliance with the principle of non-refoulement” and “in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.”, further reinforcing the sheer importance of this principle to EU member states. 3.4 Legal Implications in the case of the U.K. Even if the United Kingdom withdrew from many EU legal mechanisms in the event of Brexit, the domestic law of the U.K. already complies with the 1951 Geneva Convention and the 1967 Protocol, meaning that the non-refoulement principle is well established in British legislation. Furthermore, the U.K. currently complies with the European Convention on Human Rights where, for instance, the concept of non-refoulement is implied in Article 3. But how do all of these norms apply in the case of the U.K.-Rwanda Asylum Partnership? As stated previously, the plan of the two governments would have been to deport individuals seeking asylum in the United Kingdom to Rwanda, having their asylum requests processed there and perhaps even remain in Rwanda in the end. The issue in this case is evident: can Rwanda be considered a ‘safe’ country for migrants? The British government thatRishi Sunak led evidently thought so by promulgating the ‘Safety of Rwanda (Asylum and Immigration) Act 2024’, a new piece of legislation aimed at making it clear that Rwanda was indeed a safe destination for asylum seekers. If Rwanda were to be truly a safe destination, then it would be a completely lawful action on behalf of the British government to outsource their asylum seekers there, without committing any act of refoulement. However, it was not safe enough eventually, as in November 2023, following a judgement from The Supreme Court of The United Kingdom, the outsourcing scheme was stopped. What the Court found is that “the Rwanda policy is unlawful. This is because there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda”. This judgement was quite clear and strong, however, Conservatives attempted to implement it further yet. Eventually, the plan collapsed -as previously mentioned after the 2024 General Election, the Labour party took power and it decided to put an end to this scheme, considered by the country’s Supreme Court to be wholly unlawful. 3.5 The ongoing case of Italy As a member of the European Union, Italy must comply with all EU regulations and norms. Therefore, all of the previously mentioned treaties and conventions apply, and as such Italy’s commitment to the principle of non-refoulement should be clear. The partnership agreement signed by Italy and Albania has been controversial from the start. It has proved to be also extremely difficult to implement, as many domestic journalists held that the principle of non-refoulement was not strictly applied, which also concerned judges around the country. The first setbacks came from Italian courts, precisely in Rome, whose actions seriously delayed the operations. The biggest blow so far to the Italy-Albania Protocol has come from the European Court of Justice (ECJ) in a judgement concerning the first migrants that were sent to Albania by the Italian authorities. The judgement regarded the problems coming with the definition of a country as ‘safe’ by the Italian authorities. In fact, the ECJ stressed that “EU law does not preclude a Member State from designating a third country as a safe country of origin by means of a legislative act, provided that that designation can be subject to effective judicial review”, and “the sources of information on which such a designation is based must be sufficiently accessible, both for the applicant and for the court or tribunal having jurisdiction.” This judgement sparked further debates and discussions, but also provoked an annoyed reaction by the Italian government. However, the Protocol still continues, and refugees are still being sent to Albania, although at a very slow pace. The act of sending asylum seekers to Albania does not constitute refoulement itself in the eyes of the Italian government, especially because, contrarily to what would have happened in the U.K.-Rwanda Partnership, Italian authorities exercise a shared jurisdiction inside the camps in Albania and they say to apply Italian and European legislation there. But especially during the process of expulsion, migrants have to leave the camps and pass through the airport of Tirana in order to be put on a flight home. Despite this, Italian authorities do not have jurisdiction over the airport, or any other part of the country outside of the camps for that matter, and as such there are no assurances that European law is applied in the last part of the migrants’ journeys back home, keeping in mind that Albania is not currently part of the European Union. Several years before this matter, in 2018, the European Commission published a note regarding ‘The legal and practical feasibility of disembarkation options’, which presented an interesting third scenario: “External processing of asylum applications and/or the return procedure in a third country”. This scenario seems extremely similar to the operation Italy is currently running in Albania. They argue, for instance, that sending a migrant to any third country constitutes an act of refoulement, regardless of its safety conditions. Furthermore, they highlight how the only possible way to process an asylum request in a third country outside the EU would require the extraterritorial application of EU law, which they say to be “neither possible, nor desirable”, in the same document. Thirdly, the note mentions how it would be illegal under EU and international law to send a migrant to a third country before repatriating them, if they are not from that country originally or transited through such country during their journey to Europe. Even with all of these regulations and norms that point against Italy’s operation, the Protocol is still in place and continuing.

4. Policy Recommendation

It is clear how European countries are struggling to deal with the massive fluxes of immigration coming into the European continent. In fact, this phenomenon has been one of the top concerns for the citizens of European countries, particularly in western Europe. For example, in exit polling following the most recent German elections, migration ranked first among the issues concerning voters at 42%, slightly higher than the economy, which obtained 41%. This is just one example of how relevant the issue is for the voters, and how legislators should focus on creating new policies dealing with the topic. The issue, though, is very complex and difficult to find short-term solutions to. There is a strong need for EU institutions to discuss and put together a new common plan to deal with migration issues, because the one currently in place is constantly victim of criticism by EU members, especially by the countries most affected by the issue, one clearly being Italy.

The EU answered to this by approving a new Pact on Migration and Asylum, which will enter into force next January 2026. The Pact is based on four pillars, each concerning different areas of policy. These pillars are: “Secure external borders”, focusing on more robust screening at the borders, creating a shared database for asylum and migration and a new mandatory border procedure; “Fast and efficient procedures”, which will be responsible for making asylum rules clearer and better assign accountability to the different EU members, while also focusing on protecting the rights of the migrants; “Effective system of solidarity and responsibility”, will focus on making sure that the different members receive the help they need for managing migratory fluxes, organizing operational and financial support; and lastly “Embedding migration in international partnerships”, concerning better cooperation with third countries and the promotion of more legal pathways with migration. Countries that form the first line of the EU borders should be looking forward to this new plan, especially on the Mediterranean front, as in theory they will receive much more help in dealing with the migrants that arrive everyday. Hopefully this new plan will also make more clear the lawfulness, or lack thereof, of deals such as the one between Italy and Albania. These kinds of operations have in fact been demonstrated as highly unpopular and largely inefficient. One positive aspect of this, however, could be that Italy and others are trying new ways to answer to such a complicated issue with no straight-forward solutions. When trying to solve impossible problems, it is important to try to find new and creative ways to answer them, but at the same time, these solutions must take into account international law and the fundamental rights of the humans that are migrating.

5. Conclusion

To conclude, policies such as the ones implemented by the United Kingdom and Italy are creative ways to deal with migration, but at the same time they can be considered as treading a very fine line between lawfulness and unlawfulness. In the case of the United Kingdom, the policy never actually worked and no migrant was ever sent to Rwanda, before it was completely trashed by the new Labour government, which has followed a different agenda. In the case of Italy, the Protocol shared with Albania is very recent and still in place. Despite long setbacks created by the Italian judicial system and the European Court of Justice, Italy is now fully operational and sending migrants to the two repatriation centers in Albania. The Italian government now, instead of canceling the Protocol, as oppositions would like to see, is doubling down on it. As a matter of fact, a new intergovernmental summit took place in Rome on November 13, in which the leaders of Italy and Albania shared their willingness to further increase their level of collaboration, also in other sectors. Italy, led by Meloni, is also going to sponsor Albania’s bid to become a member of the European Union. Only time will tell if this partnership will develop any further and especially what will be the fate of the asylum seekers that will be part of this agreement. Another point for future reflection will be to see whether the outsourcing option will be picked up by any other European countries, as for example the President of the European Commission Ursula Von der Leyen has appeared to be favorable to this kind of solution. Will this become a new trend in European politics, especially in the context of rising consents of right-wing parties, although how explained throughout the paper the legal fine line on which they tread on?

Acknowledgements

I would like to thank my editor Toby for his constructive feedback and guidance throughout the writing process and research development. I am also grateful to those who provided thoughtful comments during the development of this article. All remaining errors are my own.