With order no. 23105, filed on June 20, 2025, the First Criminal Section of the Court of Cassation referred, for a preliminary ruling, two questions to the Court of Justice of the European Union (CJEU) concerning the detention of two asylum seekers in the Return Center (CPR) in Gjader, Albania. The preliminary question follows on from the recent ruling by the CJEU in cases C-758/24 and C-759/24 concerning the compatibility of Italian legislation on the management of applications for international protection lodged by third-country nationals and indirectly affecting the operation of facilities for irregular migrants set up by the Italian government in Albania. For more information on this case law, see here.

The order was issued by joining two proceedings with common features, concerning two irregular foreign nationals who had been ordered to be expelled and subsequently transferred to the Gjader Repatriation Center, where they applied for international protection. In both cases, the request for detention in the CPR in Albania had not been validated by the Court of Appeal of Rome due to possible incompatibility with European regulations on return and international protection. Specifically, the Court referred to the right of asylum seekers to remain on Italian territory until a decision on their application has been taken and the deadline for any appeal has expired, as established by Directive 2013/32/EU. The Ministry of the Interior had appealed against the Court's decision to the Court of Cassation, arguing that the Gjader center is legally equivalent to an Italian CPR under Article 3.4 of Law No. 14 of 2024, which implemented the bilateral agreement between Italy and Albania on migration (Italy-Albania Protocol), which was later changed by Decree-Law 37/2025. So, the Italian rules on detention would apply there, which say that if someone's asylum application is seen as a way to avoid being kicked out, they can stay in the center, which in this case is the CPR in Gjader.

The Court of Cassation, on the basis of Article 267 of the Treaty on the Functioning of the European Union, has requested a preliminary ruling from the CJEU on two points:

• Compatibility between Directive 2008/115/EC and the Italy-Albania Protocol (Article 3(2) of Law No. 14/2024). The Court raises doubts as to the lawfulness of the detention in Albania of third-country nationals who are the subject of validated or extended measures, where there is no real prospect of return. Under EU law, detention must be aimed at return and limited in time to the judicial review of the conditions. Transfer to a third country, which is neither the country of origin nor the country of transit, could be incompatible with those principles.
• Compatibility between Article 9 of Directive 2013/32/EU and the Italy-Albania Protocol. The question arises as to whether the detention in Albania of irregular migrants who have submitted an application for international protection that has been assessed as ‘instrumental’ and therefore subject to detention is compatible with EU law. The doubt concerns the possible violation of the right to remain in the territory of the Member State (and therefore not in a CPR located in Albania) until the substantive examination of the asylum application, as required by European law.

The CJEU will therefore be called upon to define the limits of compatibility between national law and European law, in an assessment that goes beyond the individual cases examined and which could have significant implications for the operation of the Italy-Albania Protocol.