In its first-ever ruling on anti-smuggling laws, the European Court of Justice (ECJ) has said that third-country nationals who enter the European Union irregularly must not be criminally prosecuted for helping children for whom they are responsible enter the EU solely because of the fact that they are accompanied by their minor children or dependents.

According to the judgement summarized in an online press release published on Tuesday (June 3), bringing a minor "over whom he or she exercises actual care" into the EU itself does not constitute facilitating unauthorized entry. Instead, the court said it should be considered as an "exercise of that person's responsibility in respect of those minors".

The ECJ, the highest court of the European Union, thereby (partly) ruled in favor of a Congolese woman who arrived at Italy's Bologna Airport from non-EU country Morocco in 2019 together with her daughter and niece, who were both minors at the time.

She reportedly presented Senegalese passports for herself and the children, which were later found to be fake. Charged under Italian law with facilitating illegal entry, the woman argued that she fled her home country due to death threats from her former partner and sought asylum upon arrival in Italy.

The court emphasized that accompanying one's own children or minors under one's care into the EU reflects the exercise of parental responsibility, not criminal activity. Criminalizing such actions would infringe upon fundamental rights, including the right to family life and the rights of the child, as protected by the EU Charter of Fundamental Rights.

From Bologna to Luxembourg

The 'Kinsa case,' as the case is known, was referred by the Bologna Criminal Court to the ECJ in 2020 after the former in late 2020 raised concerns about the constitutionality of Italy's immigration law, specifically a provision that imposes severe penalties -- up to fifteen years in prison and fines of 15,000 euros per person -- for facilitating illegal immigration using international transport services or forged documents.

According to the Italian Association for Juridical Studies on Immigration (ASGI), the court questioned whether such harsh penalties violate the principles of equality and the rehabilitative purpose of punishment, as enshrined in the Italian Constitution.

The court's concerns centered on the proportionality of the punishment. According to ASGI, it noted that the aggravated penalties are significantly harsher than the base offense, raising questions about their fairness and alignment with constitutional principles. The court also highlighted that the use of international transport and forged documents, while serious, may not always warrant such severe punishment, especially in cases involving vulnerable individuals seeking asylum.

An ASGI publication from 2021 said the case not only "underscores the tension between enforcing immigration laws and upholding fundamental rights," it also "reflects broader debates within the European Union about the criminalization of actions taken by individuals fleeing persecution or seeking to assist migrants."

Now, the ECJ, located in Luxembourg, has said that individuals applying for international protection cannot be considered as staying illegally in the EU while their application is pending. Therefore, they should not face criminal penalties for their own unauthorized entry or for being accompanied by minors under their care.

Tuesday’s ruling marks the first time that the ECJ has assessed whether the current EU anti-smuggling framework, known as the facilitators package, and Italian immigration law conform with the EU charter on fundamental rights, that is the right to life and the right to asylum.

Under the 2020 New Pact on Migration and Asylum, the facilitators package should not be interpreted in a way that allows humanitarian activities mandated by law to be criminalized.

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Penalizing migration, humanitarian assistance

Amnesty and other human rights NGOs have repeatedly criticized the current package and other so-called facilitation laws, which they claim have "enabled the criminalization and prosecution of human rights defenders for acts of solidarity that uphold the rights of refugees and migrants." They also argue that the laws criminalize people on the move themselves.

As InfoMigrants reported in late April citing a Platform for International Cooperation on Undocumented Migrants (PICUM) report, at least 142 individuals were prosecuted last year for helping migrants. The migrant rights group warns that criminalization trends could worsen under a proposed EU Facilitation Directive.

Now, the 'Kinsa case' could set a significant precedent by ensuring that EU member states cannot extend the scope of criminal penalties beyond what is defined in EU law, particularly in ways that would violate fundamental rights.

Francesca Cancellaro, the Congolese woman's defense counsel who had submitted to the Bologna court the request for a preliminary ECJ ruling to assess the compatibility of the EU Facilitators Package, welcomed the judgment.

"This could be the beginning of the reconsideration of the entire anti-smuggling legislation, leaving no space for the criminalization of migration and solidarity," she said.

Allison West, spokesperson for Berlin-based European Center for Constitutional and Human Rights (ECCHR), meanwhile, pointed out that the narrow judgment means the precedent only applies to cases involving caregivers and minors.

"It's up to future litigation to build on it, to challenge the broader misuse of smuggling laws against human rights defenders, solidarity actors, and people on the move themselves," West is quoted in an ECCHR press release.