Experiencing dual vulnerability: the lack of protection for LGBTQIA+ subjects under the Italian-Albanian Agreement for the strengthening of cooperation on migration issues

The current Italian policy on migration flows involves the designation of so-called "safe countries of origin"—a criterion introduced by Directive 2013/32/EU (transposed into Italian law by Article 2-bis of Legislative Decree No. 25/2008). These are (or should be) countries where, generally and consistently, there is no evidence of persecution, torture, inhuman or degrading treatment, nor threats stemming from indiscriminate violence in situations of armed conflict. Based on this assumption, the current legislation provides for the enforcement of fast border procedures to grant international protection. Hence, foreign nationals stopped at the border who come from these countries are subjected to accelerated procedures that significantly undermine their rights, leaving them inevitably more vulnerable to the rejection of their application and, consequently, to expulsion. In Italy, in particular, the Agreement with Albania, ratified by Law No. 14 of 21 February 2024, provides for the application of border procedures aboard Italian authority vessels in international waters. These include a preliminary screening process aimed at identifying people with certain vulnerabilities that would prevent them from being detained in the Albanian centres. However, the regulatory framework for conducting this activity does not appear to take into account the conditions under which it occurs—namely, at the margins of a rescue operation, aboard a sealing vessel, and in the absence of any adequate means or conditions to correctly and thoroughly assess the vulnerability of rescued individuals. This results in an inequitable and unconstitutional application of administrative discretion, disproportionately affecting individuals with more insidious and less visible vulnerabilities. This is particularly true for LGBTQIA+ individuals fleeing their countries of origin, whose claims are repeatedly assessed based on stereotypical practices, including the so-called "social perception approach," which has been repeatedly condemned by the Italian judiciary. The inefficiency of preliminary screening, combined with the applicant’s origin from one of the so- called safe countries, thus renders LGBTQIA+ individuals more exposed to the risk of detention in Albania and deportation. This paper aims to analyze these critical issues, highlighting the high level of arbitrariness and unreasonableness of a procedure that places the burden on foreign nationals—just rescued from one of the most dangerous migration routes in the world—to clearly and precisely articulate the risks of persecution they systematically and routinely face in their country of origin. Specifically, through a logical-interpretative analysis, the congruity of the procedure with constitutional principles will be examined, with particular reference to Articles 3 and 10 of the Italian Constitution. The paper will then examine the most frequent rights violations and the solid risks faced by LGBTQIA+ individuals under the new border procedures introduced by Law No. 14 of 21 February 2024. Finally, using Aristotelian syllogism and interpretative methods, the paper will reflect on the political appropriateness of considering as "safe" countries where systematic human rights violations are perpetrated, in light of the most recent Italian and international jurisprudence.