A Moroccan national was issued an expulsion order by the Prefect of Pistoia on 20 January 2020. On 6 April 2026, the Questore of Potenza ordered his detention in the Repatriation Detention Centre (CPR) of Potenza pursuant to Article 14(1) of Legislative Decree No 286/1998. That detention order was validated by the Magistrate of Melfi on 10 April 2026. On 22 April 2026, the Moroccan national expressed his intention to apply for international protection. On the same day, the Questore of Rome ordered his detention under Article 6(3) of Legislative Decree No 142/2015 in the CPR of Gjader, Albania, on the ground that the application was abusive and had been lodged solely to delay or frustrate enforcement of the expulsion order. He was transferred to Albania pursuant to Article 3 of Law No 14 of 21 February 2024, ratifying and implementing the Protocol between Italy and Albania*. On 19 May 2026, the Rome immigration office requested the Court of Appeal of Rome to validate the detention order.

The court recalled that, following the legislative amendments most recently introduced by Law No 75/2025, Law No 14 of 21 February 2024, ratifying and implementing the Italy-Albania Protocol, now expressly provides that a foreign national transferred to the facilities in Albania may remain there after lodging an application for international protection, where there are reasonable grounds to consider that the application was lodged solely to delay or prevent the enforcement of a refusal-of-entry or expulsion order. The court noted that the doubts it had already raised in its previous orders remained as to the compatibility of that provision with Article 9 of the recast Asylum Procedures Directive (APD), which grants applicants the right to remain in the Member State pending a decision on their application. It affirmed that similar concerns arise, from a forward-looking perspective, under Article 10 of the Asylum Procedures Regulation (APR), which likewise provides for the applicant's right to remain.

The court observed that Article 9(2) of the recast APD expressly provides for the cases in which Member States may derogate from that provision, allowing such derogation only where the person concerned has lodged a subsequent application under Article 41, or where the Member States intend to surrender or extradite the person, as appropriate, to another Member State pursuant to obligations under a European arrest warrant or otherwise, or to a third country, or to an international criminal court or tribunal. In the present case, the court found that none of the exceptions provided for in Article 9 of the recast APD applied. It noted that the applicant had not lodged any previous applications for international protection since arriving in Italy. The court therefore held that Article 9 of the recast APD, having direct effect, had to be applied, and that the conflicting national provision had to be disapplied. In the court's view, that national provision unlawfully allowed an applicant for international protection to remain on Albanian territory while their application was being examined, contrary to the right to remain in the Member State guaranteed by Article 9 of the recast APD.

Moreover, the court held that the requested validation of the detention measure could not have been granted, as it expressed doubts as to the compatibility of the legal framework established by the Italy-Albania Protocol and its implementing law with EU law. These doubts had already led the court to submit a request for a preliminary ruling to the CJEU, currently pending as C-706/25 [Comeri].

*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.

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