A national of Morocco entered Italy on 30 November 2021. On 31 March 2025, the Prefect of Naples issued a decree ordering the applicant's expulsion pursuant to Article 13(2)(c) of Legislative Decree No 286/1998 (Testo unico delle disposizioni concernenti la disciplina dell'immigrazione e norme sulla condizione dello straniero, TUI). On the same day, the applicant was detained at the pre-removal centre (Centro di Permanenza per il Rimpatrio, CPR) of Palazzo San Gervasio, Potenza, under Article 14(1) of the same decree. The detention was validated by the Justice of the Peace of Melfi on 2 April 2025. On 11 April 2025, the applicant was transferred to Albania and placed in the CPR in Gjader, pursuant to Decree-Law No 37 of 28 March 2025. On 17 April 2025, the applicant expressed his intention to request international protection, and his application was formalised. That same day, the Quaestor of Rome ordered the applicant's detention at the CPR in Gjader under Article 6(3) of Legislative Decree No 142 of 18 August 2015, concluding that the timing and circumstances of the application for international protection indicated that it was made solely to delay or prevent the execution of the expulsion order. The request for validation of the detention was submitted to the Court of Appeal of Rome on 18 April 2025.

Firstly, the Court of Appeal of Rome noted that, under Article 3(4) of Law No 14 of 21 February 2024 (ratifying law of the Italy-Albania Protocol), as amended by Decree-Law No 37 of 28 March 2025, the facilities listed in Annex 1 of the Italy-Albania Protocol are legally equivalent to the CPR centres provided for in Articles 10-ter and 14(1) of the TUI. It clarified that transferring individuals to these facilities does not alter the legal basis of detention or the applicable administrative procedure. The court further emphasized that, under Article 3(2) of Law No 14 of 21 February 2024, persons intercepted outside EU territorial waters or detained under Article 14 of the TUI may be transferred to designated areas in Albania. According to Article 3(3) of the same law, these areas are considered as equivalent to border or transit zones in accordance with Article 28-bis(4) of Legislative Decree No 25/2008. The court underlined that under Article 4(1), migrants described in Article 1(1)(d) are subject to the rules set out in Italian immigration and asylum laws, as well as relevant EU legislation on the admission and stay of foreign nationals; legal procedures for these migrants fall under the jurisdiction of Italian courts. Additionally, the court highlighted that Article 4(3) of the Protocol limits the presence of migrants in Albania solely to the period necessary for border or return procedures as implemented according to Italian and European legislation; once the legal grounds for detention are no longer valid, the Italian authorities are required to transfer the individuals out of Albania.

In the present case, the court observed that the applicant was transferred to the CPR in Gjader due to pending expulsion proceedings, which were the basis for a detention order under Article 14 of the TUI, validated by the Justice of the Peace under Article 3(2) of Law No 14/2024. The subsequent detention order under Article 6 of Legislative Decree No 142/2015, under review, concerns the applicant who was initially subject to expulsion but became an asylum seeker upon expressing his wish to request international protection while at the CPR. The court affirmed that the application was validly submitted, as the applicant expressed his wish to apply for asylum during his ongoing detention at the CPR in Gjader. The court emphasized that the applicant was forcibly taken to the CPR, without his consent, and the detention order remained in effect during the transfer, with no change in the procedural framework in Italy. The court ruled that the valid submission of the application for international protection changed the legal basis for the detention, shifting its purpose from enforcing a return order to facilitating the examination of the asylum application.

The court affirmed that, upon acquiring the status of asylum seeker, an individual no longer falls within the categories outlined in Article 3(2) of Law No 14 of 21 February 2024, which permits the transfer of individuals to the areas specified in Article 1(1)(c) of the Italy-Albania Protocol. This includes individuals on board Italian vessels outside territorial waters or those subject to detention measures under Article 14 of the TUI. Moreover, the court noted that procedures provided in Article 3(3) of Law No 14 of 21 February 2024 and Article 4(3) of the Italy-Albania Protocol do not apply to asylum seekers. Specifically, the court clarified that border procedures were not applicable in the present case, as the applicant had already entered Italian territory irregularly and was subject to both an expulsion and a detention order under Article 14 of the TUI. Therefore, the conditions for applying the accelerated border procedure under Articles 28-bis(2)(b) and (b-bis) and Article 35-ter of Legislative Decree No 25/2008, as well as Article 6-bis of Legislative Decree No 142/2015, were not met. Similarly, the court clarified that return procedures under Articles 13 and 14 of the TUI do not apply to an asylum seeker, as the submission of the asylum application alters the legal basis for detention and prevents the immediate enforcement of a deportation order. The court reiterated that continued presence in the facilities in Albania is justified only within the framework of border or return procedures. Once the detention order expires, the authorities are obliged to transfer the individual back to Italian territory, in accordance with Article 4(3) of the Protocol.

The court stated that under Article 9 of the recast Asylum Procedures Directive (APD) and Article 7(1) of Legislative Decree No 25/2008, an applicant for international protection has the right to remain in the Member State until a decision is made on the application, including during any appeal process, unless specific exceptions apply. Even following a rejection by the Territorial Commission, the applicant may remain until the expiry of the timeframe for appeal or, in case of appeal, until a final decision is rendered, as the lodging of an appeal generally suspends enforcement. Consequently, the court affirmed that return procedures, including expulsion, are only applicable once the appeal period has lapsed or a final decision has been made, and detention may continue lawfully during this period under Article 6(7) of Legislative Decree No 142/2015.

Hence, the court ruled that the Italy-Albania Protocol and Law No 14 of 21 February 2024 were inapplicable in this case, as neither explicitly authorizes the detention of an asylum seeker under Article 6 of Legislative Decree No 142/2015 in the CPR of Gjader. The court reiterated that the areas under Article 1(1)(c) of the Protocol are treated as border or transit zones under Article 28-bis(4) of Legislative Decree No 25/2008, allowing individuals to remain there solely for such procedures, per Article 3(3) of Law No 14 of 21 February 2024 and Article 4(3) of the Protocol. Therefore, the court concluded that the detention pursuant to Article 6 of Legislative Decree No 142/2015 was unlawful, as the applicant had the right to remain on Italian national territory until the expiry of the time limit for appealing the Territorial Commission's hypothetical rejection, and, if an appeal is lodged, to remain until a decision is made on the request for suspension and, where granted, for the duration of the proceedings on the merits. As such, the applicant could not be subject to return procedures. The court determined that the Italy-Albania Protocol and its implementing law were inapplicable to the present case, and rejected the request to validate the detention ordered by the Rome Police Headquarters under Article 6 of Legislative Decree No 142/2015 at the Gjader CPR.

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