The Italy-Libya Memorandum: stripping away the right of asylum in the Italian legal system

Abstract

On the 2nd of November 2022, the Italy-Libya Memorandum on migration was renewed for the following 3 years, giving continuity to the close collaboration between the two countries to stem the flow of migrants, refugees and asylum seekers onto the Italian territory. Libya, in fact, is the main point of departure for migrants and refugees wishing to reach the Italian shores. This paper argues that, with the Memorandum, Italy adopts a ’pullbacks’ strategy which essentially translates into the practice of collective expulsion and refoulment. Nevertheless, it is in the prohibition of such practices that lies the indispensable premises to guarantee the effectiveness of the protection of the right to asylum, as safeguarded by international, European and national legislation. In fact, the Memorandum externalises the border across the Mediterranean and empties the right to asylum of its meaning, since it is structured in such a way as to make it impossible for people to reach European territory. It also denies the reality of mixed migration flows, precluding, a priori, the possibility for some migrants to be recognised as beneficiaries of international protection, while relying on the actions of a country, Libya, which has not signed the 1951 Geneva Convention on the Status of Refugees, has no functioning national asylum system and cannot be considered a ‘Place of Safety’ due to proven human rights violations perpetrated in its migrant detention centres. This paper further argues that the Italy Libya Memorandum is in line with the securitarian migration policies and the strategy of borders’ externalisation by the European Union (EU), which entrenches itself in a fortress on whose borders violence is carried out. In this context, bilateral agreements such as the Memorandum risk creating legal black holes whose purpose seems to be to circumvent the responsibilities stipulated at different levels of legislation. The jurisprudence of the Italian legislative system and of the European Court of Human Rights (ECtHR) seems to be paving the way for a more conscious approach to migrants and might fill in the void created by the solidarity crisis of the European approach to immigration, but not without the support of a policy approach focused on restoring the Italian constitutional structure of the right to asylum.