A Member State may not impose criminal penalties on a third-country national who has entered its territory illegally for aiding the illegal entry of minors accompanying him or her and over whom that person has effective custody, ruled the Court of Justice of the European Union in a judgment handed down on Tuesday 3 June (case C-460/23).
In Italy, a third-country national presented herself at the border at Bologna airport with her daughter and niece using false passports. She was arrested and prosecuted for aiding the illegal entry of minors within the meaning of Directive 2002/90. Shortly afterwards, she applied for international protection, believing that her former partner was threatening to kill her in her own country.
In its judgment, the Court of Justice takes the view that the conduct of a person who, in breach of the EU’s border crossing arrangements, brings into the territory of a Member State minors from third countries who are accompanying him or her and in respect of whom he or she exercises effective custody does not constitute a criminal offence.
In the Court’s view, such conduct constitutes the exercise of responsibility arising from the family relationship. A contrary interpretation would undermine the rights of the child and respect for family life, enshrined in the EU Charter of Fundamental Rights (articles 7 and 24).
In addition, the European Court of Justice emphasises that this interpretation, linked to the exercise of family responsibility, is essential in the light of the fundamental right to asylum. The person concerned who has submitted an application for international protection cannot be considered to be residing illegally until their application has been processed at first instance. During this procedure, she cannot be subjected to criminal sanctions because of her own irregular situation or because she was accompanied on entry by her daughter and niece, for whom she has effective custody.
To see the judgment of the Court of Justice, go to https://aeur.eu/f/h5a (Original version in French by Mathieu Bion)