Luca Brocca
Just Access Representative to the UNCAC
Since October 2024, Italy has held migrants in two facilities it built and runs on Albanian soil, under Italian jurisdiction, while the judges and the lawyers stay in Rome. On the 11th of June 2026, a case about this arrangement reached the Court of Justice of the European Union.
In her Opinion in the joined cases Comeri and Sidilli, referred by the Rome Court of Appeal, Advocate General Laila Medina reached a conclusion that is easy to misread. She did not strike the centres down. She accepted that no provision of EU law fixes the geographical location of detention facilities, so a State remains free, in principle, to place them outside the Union. Her colleague Advocate General Emiliou said much the same in April. An Advocate General’s Opinion does not bind the Court, although the Court follows it in a large majority of cases, and a final judgment is expected in the coming months.
The question is no longer “where”, but “whether”
The significance lies in what the Opinion did next. Having permitted the location, Medina insisted that wherever a State detains people, the safeguards of EU law must travel with them, and these safeguards must be equivalent to those available at home. She then found that Italy’s Protocol with Albania and its implementing legislation do not “appear to contain clear and precise rules” guaranteeing those safeguards and are likely to affect the minimum procedural guarantees that EU law requires.
This reframing matters for anyone who works on access to justice. The debate has long been cast in political terms, as a contest between border control and the right to asylum. The Opinion quietly moves the legal centre of gravity somewhere more technical and, to our mind, more important: not whether a State may detain people abroad, but whether a detained person can still reach a lawyer, a family member, and a judge from there.
The quiet erosion of distance
It is worth dwelling on the guarantees the Advocate General singled out, because they are the unglamorous machinery of access to justice. They include the confidentiality of communications between a lawyer and client, the reimbursement of a lawyer’s travel costs, the right to visit and communicate with family, and the duty to release a detainee the moment the lawful period of detention expires.
Each of these is vulnerable to nothing more sinister than geography. When the client is in Albania and counsel is in Rome, a confidential conversation is likely to happen by video link, if at all. Travel across a sea is costly, so a lawyer’s physical visit becomes the exception rather than the rule. And release on expiry of detention, a straightforward thing to order in a domestic facility, becomes far harder to verify and enforce across an international border. None of this requires bad faith on anyone’s part, the distance does the work on its own.
Equivalence on paper, audited by whom?
The standard the Opinion offers, guarantees equivalent to those applicable on national territory, is principled. It also raises an uncomfortable question: who checks? A remedy is only effective if a person can invoke it in real time, before the harm has crystallised. Yet the burden of proving that an offshore centre falls short rests on the very people least able to litigate from inside it. This is the recurring pattern in access to justice work, in which a right that is plainly written in the text dissolves in the practical conditions of the person who is supposed to hold it.
The Court has been near this ground before. In its Grand Chamber judgment of the 1st of August 2025 in Alace and Canpelli, it held that such schemes are lawful only to the extent that the decisions underpinning them can be effectively challenged before a court, and the evidence relied upon is accessible to the applicant. The thread joining that judgment to the present Opinion is the same: externalisation is tolerated only where it does not place the courtroom beyond reach.
Why this travels
This question is relevant beyond Italy. The European Union’s new Pact on Migration and Asylum became applicable in June 2026, and a proposed Returns Regulation would expressly contemplate “return hubs” in third countries. Several States, among them the Netherlands, Austria, Denmark, Greece, and Germany, are watching the Albanian model closely.
Whatever one’s view on migration, the legal principle the Opinion crystallises ought to outlast the controversy: a State may not relocate a person beyond the practical reach of the courts and still call the remaining guarantees equivalent. The Advocate General has, in effect, set a test that externalisation must pass. The coming judgment will show whether that test has teeth, or whether “equivalence” becomes the latest fiction by which access to justice is promised in principle and withheld in practice.
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