Immigration: no penalties for facilitating irregular entry for parents with minor children

Brussels – A third-country national who enters the European Union illegally cannot be accused of and, therefore, penalized for facilitating unauthorized entry solely because their minor child accompanies them, the EU Court of Justice ruled. A judgment affirmed that in the case of non-EU citizens arriving on EU soil outside regular channels, the presence of accompanying minors falls under normal parental authority. “Such a parent merely exercises his or her responsibility in respect of the child,” the Luxembourg judges ruled.

The case concerns a woman who Italian authorities arrested in August 2019 at the Bologna airport and prosecuted for facilitating illegal entry. The woman, using false passports, had brought with her her daughter and granddaughter, both minors and had then claimed to have fled her home country because she and her family had been threatened with death by her ex-partner.

The Bologna District Court referred the case to the EU Court of Justice that, in a nutshell, ruled that the conduct of a person who, in violation of the border-crossing regime, brings into the territory of a Member State minors who are third-country nationals accompanying them and for whom they are responsible, “does not fall within the scope of the general offense of facilitation of unauthorized entry within the meaning of EU law.” Therefore, there is no clear violation of the 2002 Directive on illegal residence and facilitating illegal entry.

Consequently, Member States cannot hold the hard line. On this, the EU Court is clear: “EU law therefore precludes national legislation criminalizing” a non-EU citizen who has entered illegally for making his minor child do the same. The reason is that “Member States cannot go beyond the scope of the general offense of facilitating unauthorized entry, as defined by EU law, by including therein conduct not covered by that law, in breach of the Charter.”