The case is registered before the CJEU under C-414/25.

S.H., a Tunisian national, was subject to an expulsion order issued by the Ancona Prefect on 16 September 2024 due to the fact that his residence permit was not renewed and he committed several offences. On 22 March 2025, the Ancona Prefect ordered the detention of the applicant because his removal could not be implemented, since no aircraft was available and he did not provide the necessary document for his return. He was detained at the Bari Return Center and the measure was confirmed on 24 March 2025. Based on the Italy - Albania Protocol*, the Ministry of the Interior transferred the applicant from the Bari Return Centre to the Gjader Return Centre. While in the center, the applicant submitted an application for international protection on 22 April 2025. The same day, the Rome Police Chief ordered his detention at the Gjader Return Center pursuant to the legislation transposing the recast Asylum Procedures Directive (APD). The person was heard on 23 April 2025, and the Territorial Commission rejected his asylum application. The Rome Court of Appeal invalidated the detention order of 22 April 2025 on the ground that the person who applied for international protection has the right to remain on the Italian territory pending the processing of the application and considered that the Protocol was not applicable. The Ministry of the Interior appealed against the decision of the Rome Court of Appeal arguing that the facilities in Albania are equivalent to those in Italy.

A.H., Algerian national, who was subject to an expulsion order in August 2020, was found in February 2025 as being a third country national against whom an expulsion order was unenforced because the person had not provided a document necessary to proceed with the return. The Latina Police Chief ordered his detention in the Bari Return Center, and the Justice of Peace in Bari validated the detention on 17 February 2025. On 11 April 2025, the Ministry of the Interior transferred the Algerian national to the Return Centre in Gjader, where the person submitted a request for international protection on 23 April 2025. On 23 April 2025, the Rome Police Chief ordered the detention of the Algerian applicant at the Gjader Return Centre, pursuant to Article 6(3) of Legislative Decree No 142 of 18 August 2015. By decision of 24 April 2025, the Rome Court of Appeal did not validate the detention order of 22 April 2025. The Ministry of the Interior appealed against the decision of the Rome Court of Appeal before the Supreme Court of Cassation, alleging that the reference to Article 9 of the recast APD was not correct since the facilities listed in the annex of the Protocol are equivalent to those in Italy.

The Supreme Court of Cassation joined the two proceedings on 29 May 2025.

The Supreme Court of Cassation (criminal section) referred the following questions before the CJEU for a preliminary ruling for interpretation of the Return Directive and the recast Asylum Procedures Directive with regard to detention of third country nationals:

(1) Does Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals and, in particular, Articles 3, 6, 8, 15 and 16 thereof, preclude the application of national legislation (Article 3(2) of Law No 14 of 21 February 2024), which allows recipients of detention orders endorsed or extended pursuant to Article 14 of Legislative Decree 286 of 1998 to be taken to the areas referred to in Article 1(1)(c) of the Italy - Albania Protocol, in the absence of any predetermined and identifiable prospect of return?

(2) If the answer to that question is in the negative, does Article 9(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection preclude the application of national legislation (Law No 14 of 21 February 2024) which allows, on the grounds of an application for protection deemed to have been lodged for improper purposes, the detention in one of the areas referred to in Article 1(1)(c) of the Italy - Albania Protocol, of the migrant who is the subject of an expulsion order and who, having been brought to said areas, has submitted such an application?

*The Protocol between the Government of the Italian Republic and the Council of Ministers of the Republic of Albania on the strengthening of cooperation in the field of migration – concluded in Rome on 6 November 2023 (‘the Italy - Albania Protocol') and ratified in Italy by Law No 14 of 21 February 2024.