Top EU court rules migrants with minors not aiding illegal immigration

Published on
03/06/2025 – 18:18 GMT+2

The Court of Justice of the European Union on Tuesday ruled in favour of migrants’ rights in a case filed by an Italian court regarding what can be considered aiding and abetting illegal immigration.

The court ruling noted that, in the case of a third-country national entering the EU irregularly accompanied by a child in their care, their conduct “cannot be regarded as aiding and abetting illegal immigration.”

“In fact, the parent in this case assumes an obligation related to his or her personal responsibility towards the child in accordance with fundamental rights, in particular respect for family life and the child,” the president of the EU’s highest legal authority, Koen Lenaerts, explained in his judgment.

With this preliminary ruling, the court agrees with the Court of Bologna, which filed the proceedings in July 2023 following the entry into Italy of a Congolese citizen in 2019.

The woman entered the country at the airport border of Bologna with two minors — her daughter and niece, over whom she had actual care following the death of the niece’s mother — using false documents.

She said she fled Congo after receiving threats from her ex-partner and took the two minors with her because she feared for their physical well-being.

She was arrested and is being prosecuted for facilitating unauthorised entry into Italy.

Not considered offence

The Italian court had asked the Court of Justice of the European Union (CJEU) whether the 2002 directive on the facilitation of illegal immigration was compatible with the Charter of Fundamental Rights.

The referring court doubted whether the directive provides for humanitarian assistance as a justification for making the crime of aiding and abetting not punishable.

In other words, it was asking the EU court about the scope of the general offence of facilitation of unauthorised entry, provided for by EU law.

“The court answers that the conduct of a person who, in breach of the rules governing the movement of people across borders, brings into the territory of a member state minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, does not fall within the scope of that offence,” the ruling on Tuesday said.

It added that this conduct “does not constitute facilitation of illegal immigration, which EU law seeks to combat” but rather “the exercise by that person of his or her responsibility stemming from the family relationship and the actual care over those minors.”

Lenaerts went further, stating that the interpretation is necessary, also in light of the fundamental right to asylum. He explained that, because the woman had made an application for international protection, she could not be regarded as staying illegally on the territory.

This is the case so long as no decision has been given on her application at first instance, Lenaerts explained.