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Article by Francesca Moriero – Journalist, Fanpage.it

On Tuesday, June 3, 2025, the Court of Justice of the European Union issued a ruling that will mark a crucial milestone in the evolution of European immigration law. The Luxembourg judges ruled that a third-country national who has entered the Union illegally while accompanying minors for whom he or she is effectively responsible and cared for cannot be prosecuted for aiding and abetting illegal immigration. This decision forcefully reaffirms the centrality of protecting minors, safeguarding family ties, and recognizing a personal and moral responsibility that cannot be criminalized. This is a turning point that marks the limit beyond which the law can no longer be interpreted solely in a repressive manner, but must bow to the demands of humanity and substantive justice.

The ruling stems from a proceeding initiated in Italy, but now takes on a much broader scope: it becomes binding on all EU member states, setting a new standard of interpretation for national judges whenever they are called upon to evaluate similar cases.

The case: the escape from Congo and the arrest in Bologna

The story that led to the historic ruling began in 2019, when a Congolese woman arrived at Bologna airport with two young children: her daughter and her granddaughter, who had been orphaned following the death of her mother. All three had fled Congo, where the woman had suffered serious threats and violence from her ex-partner. Their entry into Italy was accomplished using false documents, resulting in the woman’s immediate arrest. She was then also charged with aiding and abetting irregular immigration, a crime under Italian law and European Directive 2002/90/EC. During the trial, however, a crucial element emerged: the woman was in fact the legal guardian of her granddaughter and was also acting as a mother to her daughter, seeking refuge and protection for both of them.

The Italian court’s doubts and the Court of Justice’s say

Faced with a humanly and ethically complex situation, the Court of Bologna thus chose to suspend the proceedings and raise a preliminary reference with the Court of Justice of the European Union. The question is indeed very clear: can a mother or guardian who attempts to rescue minors through unauthorized entry be equated with a human trafficker? In July 2023, the criminal proceedings against the woman were dismissed. But the definitive legal response only arrived now, with the ruling in Case C-460/23 – Kinsa, in which European judges definitively clarified the correct interpretation of the Directive on facilitating irregular entry.

The ruling: the law cannot punish family responsibility

According to the Court’s ruling, the woman’s behavior cannot be considered criminally relevant. This was clearly explained by President Koen Lenaerts, who emphasized that the woman’s conduct was “the expression of a moral and family obligation” and had no profit-making or illicit intent. Accompanying minors to a safe place, the Court reiterated, cannot be equated with aiding and abetting illegal immigration. On the contrary, it is an act that falls fully within the framework of fundamental rights recognized by the European Union, particularly the right to family unity, the protection of minors, and humanitarian protection.

The legal scope of the decision: a binding obligation for all Member States

This ruling, in addition to resolving the specific case, takes on broader normative significance: the interpretation given by the Court of Justice is binding on all courts of the EU member states. What does this mean? It means that from now on, in all EU countries, similar behaviors can no longer be criminalized. National judges will automatically have to take it into account whenever they encounter similar situations. This ruling thus marks a true evolution in European jurisprudence, restoring the law to its human and solidarity-based dimension .

The line between law and solidarity: a changing line

Perhaps the most significant aspect of this ruling is the reaffirmation of a principle as simple as it is revolutionary in the context of current migration policies: solidarity is not a crime. When a person acts to protect minors entrusted to their care, even an irregular entry can be understood and accepted by the law: “Parental responsibility is a duty, not a crime,” Lenaerts emphasized, explaining how this ruling helps redefine the balance between security needs and respect for fundamental rights. This is also a powerful message for political institutions, often inclined to view every irregularity as a threat .

Asylum and Humanity: Towards a New Interpretation of Reception

The Court then recalled another essential principle: an asylum seeker is never illegally present until a decision on their application has been issued. This step further clarifies the limits within which Member States can take criminal action, strengthening the protection of those who seek assistance in good faith. The ruling thus reaffirms that the European Union is and must also be a community of law that protects the most vulnerable, especially children. At a time when political pressure is increasingly pushing for the criminalization of migration, this decision represents a legal and moral bulwark in defense of humanity.

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