Top EU court rules migrants with minors not aiding illegal immigration

Euronews

2 days ago

The Court of Justice of the European Union on Tuesday ruled in favour of migrants' rights in a case filed by an Italian court regarding what can be considered aiding and abetting illegal immigration.
The court ruling noted that, in the case of a third-country national entering the EU irregularly accompanied by a child in their care, their conduct "cannot be regarded as aiding and abetting illegal immigration."
"In fact, the parent in this case assumes an obligation related to his or her personal responsibility towards the child in accordance with fundamental rights, in particular respect for family life and the child," the president of the EU's highest legal authority, Koen Lenaerts, explained in his judgment.
With this preliminary ruling, the court agrees with the Court of Bologna, which filed the proceedings in July 2023 following the entry into Italy of a Congolese citizen in 2019.
The woman entered the country at the airport border of Bologna with two minors — her daughter and niece, over whom she had actual care following the death of the niece's mother — using false documents.
She said she fled Congo after receiving threats from her ex-partner and took the two minors with her because she feared for their physical well-being.
She was arrested and is being prosecuted for facilitating unauthorised entry into Italy.
The Italian court had asked the Court of Justice of the European Union (CJEU) whether the 2002 directive on the facilitation of illegal immigration was compatible with the Charter of Fundamental Rights.
The referring court doubted whether the directive provides for humanitarian assistance as a justification for making the crime of aiding and abetting not punishable.
In other words, it was asking the EU court about the scope of the general offence of facilitation of unauthorised entry, provided for by EU law.
"The court answers that the conduct of a person who, in breach of the rules governing the movement of people across borders, brings into the territory of a member state minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, does not fall within the scope of that offence," the ruling on Tuesday said.
It added that this conduct "does not constitute facilitation of illegal immigration, which EU law seeks to combat" but rather "the exercise by that person of his or her responsibility stemming from the family relationship and the actual care over those minors."
Lenaerts went further, stating that the interpretation is necessary, also in light of the fundamental right to asylum. He explained that, because the woman had made an application for international protection, she could not be regarded as staying illegally on the territory.
This is the case so long as no decision has been given on her application at first instance, Lenaerts explained.
Police in the Hungarian capital issued an order on Tuesday denying a request to hold an pro-LGBTQ+ event in Budapest, a consequence of recent steps by the right-wing government aimed at banning the popular Budapest Pride march.
The police's decision to prohibit the event planned for later this month came after Hungary's parliament passed legislation in March that allowed the government to ban public events by LGBTQ+ communities.
That was followed a month later by a constitutional amendment banning such events.
Both moves were slammed by legal scholars and critics decried it as another step towards authoritarianism by what they call an autocratic government.
In its justification for prohibiting the Budapest event, which organisers requested to take place on 28 June, the city's police argued that "it cannot be ruled out, or is even inevitable, that a person under the age of 18 will be able to engage in legally prohibited conduct" if attending the proposed march.
The police also contended that the march could result in "passive victims," who, "because of the assembly's march-like nature, did not wish to attend the assembly but, because of its public nature, nevertheless become a bystander."
In a statement, the organisers called the police decision "a textbook example of tyranny."
"The police did not ban Pride but the rainbow parade that was originally allowed but in our opinion this is legally absurd," Amnesty International spokesperson Áron Demeter, one of the organisers of the march, told the 24.hu news outlet.
The ban on LGBTQ+ events, which the government says ensures children's rights to moral, physical and spiritual development, allows for fines on people organising or taking part in Pride events and the use of facial recognition software to identify them.
Hungary's contentious "child protection" legislation prohibits the "depiction or promotion" of homosexuality to anyone under the age of 18.
Hungarian officials have given contradictory statements as to whether or not the new policies amount to a full ban on Budapest Pride.
In a speech to supporters in February, Prime Minister Viktor Orbán advised organisers "not to bother organising this year's parade," calling it "wasted money and time."
The Budapest Police attached photographs and videos to its statement depicting scenes from previous Budapest Pride events, ostensibly as evidence to corroborate its view that the march was likely to violate the new laws banning public displays of homosexuality.
France, Germany and Spain were among at least 20 European Union nations who last month called on Hungary to revise its legislation banning LGBTQ+ events, expressing concern that it runs contrary to the fundamental values of human dignity, freedom, equality and respect for human rights enshrined in EU treaties.
Organisers of Budapest Pride, which draws tens of thousands annually and is celebrating its 30th anniversary this year, have vowed that the event will go ahead as planned despite the threat of legal sanctions.