EU court rules on unauthorised-entry case
The EU’s highest court has found that a third-country national who enters the EU in an unauthorised manner cannot be penalised for facilitating unauthorised entry solely because he or she is accompanied by his or her minor child.
The Court of Justice (CJEU) was answering questions from an Italian court about the scope of the general offence of facilitation of unauthorised entry, provided for by EU law.
The CJEU stated that a person who breached the rules by bringing into the EU minors who were accompanying him or her, and over whom he or she exercised care, did not fall within the scope of that offence.
‘Responsibility’
“Indeed, such conduct does not constitute facilitation of illegal immigration, which EU law seeks to combat, but the exercise of that person’s responsibility in respect of those minors, stemming from their family relationship,” the judges said.
They found that, as a result, EU law prevented national legislation from criminalising that conduct.
“A contrary interpretation would entail a particularly serious interference with the fundamental right to respect for family life and the fundamental rights of the child, enshrined in articles 7 and 24 of the Charter of Fundamental Rights of the European Union, to such an extent that it would undermine the essence of those fundamental rights,” the court stated.
Bologna arrival
The questions referred to the CJEU were linked to a case involving a woman who presented herself at the airport border of Bologna in 2019, having arrived on a flight from a third country, accompanied by her daughter and niece, both having the same nationality as her, using false passports.
She was arrested and is being prosecuted for the offence of facilitating unauthorised entry into the territory.
She stated that she had fled her country of origin because she and her family were threatened with death by her former partner.
Since she feared for the physical integrity of her daughter and her niece, over whom she had care after the death of the niece's mother, she took them with her.
Shortly afterwards, she applied for international protection.