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

On 29 May 2025, the Court of Cassation joined two proceedings raising common issues. In the first proceedings, on 16 September 2024, the Prefect of Ancona ordered the expulsion of S.H., a Tunisian national. On 22 March 2025, S.H. was detained at the Bari Repatriation Detention Centre (CPR), and the Justice of the Peace of Bari validated the detention order. On 11 April 2025, he was transferred to the CPR of Gjadër, Albania, where he later applied for international protection. On 22 April 2025, the Questore of Rome ordered his detention at the Gjadër CPR pursuant to Article 6(3) of Legislative Decree No 142 of 18 August 2015. The following day, the Territorial Commission rejected his asylum application. On 24 April 2025, the Rome Court of Appeal refused to validate the detention order. It held that Law No 14 of 21 February 2024, interpreted in light of Article 9 of the recast Asylum Procedures Directive (APD), required S.H. to be returned to the Italian territory. The court clarified that the applicant had the right to remain in Italy, he could not be detained at the Gjadër CPR until the appeal proceedings were concluded, and could not be expelled or repatriated in the meantime. On 29 April 2025, the Ministry of the Interior appealed that decision before the Court of Cassation.

In the second proceedings, on 19 August 2020, the Prefect of Florence ordered the expulsion of A.H., an Algerian national. The order remained pending until A.H. was traced during a check in February 2025. Since he had not provided a document necessary for return, the Questore of Latina ordered his detention at the Bari CPR. On 17 February 2025, the Justice of the Peace of Bari validated the detention order. A.H. was later transferred to the Gjadër CPR, where he applied for international protection on 23 April 2025. On the same day, the Questore of Rome ordered his detention at the Gjadër CPR pursuant to Article 6(3) of Legislative Decree No 142 of 18 August 2015. The Rome Court of Appeal refused to validate this detention order for the same reasons as in the first proceedings. On 29 April 2025, the Ministry of the Interior challenged that decision before the Court of Cassation.

The Court of Cassation noted that the two proceedings essentially raised the question whether a person subject to an expulsion and a detention order may remain in Albania after being transferred there and subsequently applying for international protection. It observed that, following the amendments introduced by Law No 75/2025, Italian law now expressly provides for the applicant's stay in the Albanian centres where there are reasonable grounds to believe that the application was lodged solely to delay or prevent refusal of entry or removal. The court considered it necessary to assess whether the transfer to Albania, under the Italy–Albania Protocol, of a person who applies for asylum after that transgfer is compatible with EU law. Referring to the CJEU judgment in Slovakia and Hungary v Council (Joined Cases C-643/15 and C-647/15, 6 September 2017), the court recalled that the right to remain does not in itself prevent the transfer of an applicant to another State, provided that the principle of non-refoulement is respected. However, it distinguished the present case on the basis that the transfer was to a third country, not to another Member State, which in the court's view may be incompatible with Article 3 of the Return Directive.

The first question referred for a preliminary ruling was whether Articles 3, 6, 8, 15 and 16 of the Return Directive preclude domestic legislation allowing individuals subject to detention measures, validated or extended under Article 14 of Legislative Decree No 286/1998, to be transferred to the areas in Albania established under the Italy–Albania Protocol, in the absence of any predetermined and identifiable prospect of return. In the context of Article 9(1) of the recast APD, the court questioned whether applicants have the right to remain in the territory of the Member State, even where they have been removed from that territory by a decision of the national authority which does not amount to return within the meaning of Article 3(3) of the Return Directive. The court further noted that, although the Protocol states that entry into Albania is permitted solely for the purpose of carrying out return procedures, there are no implementing provisions explaining how that objective is to be pursued, how it would be achieved more efficiently than in Italy, or how compliance with the guarantees required under EU law would be ensured. It also observed that Albania is neither the individuals' country of origin nor a transit country for the purposes of return, since it was not crossed en route to Italy and no readmission framework exists to facilitate returns from Albanian territory. The migrants' temporary stay in Albania therefore raises questions as to the compatibility of their transfer to a third State with the Return Directive, particularly in light of the objective of return.

Finally, the court noted that transfer to a third State prevents the restriction of personal liberty from being limited to the time strictly necessary for judicial review. If the judicial authority refuses to authorise detention, immediate release cannot be ordered as it would be in a Member State, since under Article 6(5) and (6) of the Protocol migrants are not allowed to leave the centre and must wait to be transferred back to Italy.

The second question referred for a preliminary ruling concerned the compatibility of the Italy–Albania Protocol and Law No 14/2024 with Article 9 of the recast APD, insofar as they result in the detention, outside the territory of an EU Member State, of a foreign national who has applied for international protection to the Italian authorities while abroad, but not as a matter of free choice. The court recalled that both Article 9 of the recast APD and Article 10(1) of the Asylum Procedures Regulation (APR) provide for the right to remain on the territory of the Member State. It held that if an application for international protection is lodged outside the State's territory, such as in Albania, the applicant cannot be afforded a lower level of rights and guarantees, particularly where their presence there results from a transfer carried out by the Italian authorities themselves. The court referenced the CJEU judgment in Ministerio Fiscal v V.L. (C-36/20 PPU, 25 June 2020) which clarified that a third-country national acquires the status of applicant for international protection from the moment they make such an application. It further noted that, although the areas in Albania established under the Protocol are not Italian territory, the application may still be regarded as having been lodged with an Italian authority. This raises the question whether, under Article 9(1) of the recast APD, the applicant must be returned to the Member State where they are entitled to remain.

The court referred for a preliminary ruling the following questions:

(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 Protocol between the Government of the Republic of Italy 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, 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 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, of the migrant who is the subject of an expulsion order and who, having been brought to said areas, has submitted such an application?