The case involved a third-country national who arrived at Bologna Airport (Italy) with her minor daughter and niece, both of whom were travelling with false passports. She explained that she fled her country due to threats against her family and had actual care of the minors. Shortly after arrival, she applied for international protection but was prosecuted for facilitating unauthorised entry. In this context, the Court was required to examine whether the conduct of a person who brings minors under their actual care into an EU Member State in breach of border rules falls within the scope of the general offence of facilitation of unauthorised entry as defined by EU law, and whether such conduct may be subject to criminal penalties.

The Court ruled that this conduct does not constitute facilitation of illegal immigration, but rather the exercise of family responsibility. Articles 7 and 24 of the EU Charter of Fundamental Rights protect respect for family life and the rights of the child, and criminalising such conduct would constitute a serious interference with these fundamental rights. Moreover, because the individual submitted an application for international protection, she cannot be regarded as staying illegally while her asylum claim is pending and thus cannot be punished criminally on that basis. Finally, the Court confirmed that Member States are precluded from extending national criminal laws beyond the limits set by EU law, prohibiting the criminalisation of such conduct.

For further details, please read the press release from the Court of Justice of the European Union and the judgement of the Court.