Blog post by Dr Maja Grundler, Northumbria Law School*
The EU’s anti-smuggling legislation – the Facilitators’ Package (comprised of Council Directive 2002/90/EC, aka the Facilitation Directive, and the accompanying Council Framework Decision 2002/946/JHA) – has long been used to criminalise persons acting in solidarity with migrants, for example individuals and organisation engaged in search and rescue at sea, or assisting migrants at borders, transit zones, and within Member States. The Facilitation Directive criminalises both facilitating irregular entry (Article 1(1)(a)) and irregular residence (Article 1(1)(b)). The Directive also contains a provision giving Member States discretion not to impose sanctions with regard to facilitation of irregular entry where humanitarian actors are concerned (Article 1(2)).
On 3 June 2025, the CJEU issued its long-awaited judgment in C‑460/23, Kinsa (formerly known as the Kinshasa case), which concerns the question of whether a parent or guardian facilitating the irregular entry of minors in her care can be criminalised under the provisions of the Facilitation Directive.
The Preliminary Reference
Kinsa concerns a Congolese woman (‘OB’) who was charged with facilitating irregular entry because she attempted to enter Italy with her daughter and niece using false documents. OB later claimed international protection. The Tribunal of Bologna submitted a request for a preliminary ruling to the CJEU to clarify how far EU law on the criminalisation of facilitation of irregular entry (and Italy’s implementation thereof) is compatible with the EU Charter of Fundamental Rights (EUCFR or simply ‘the Charter’ hereafter) given that there is no mandatory exemption for humanitarian conduct. The Tribunal of Bologna sought clarification on the compatibility of the Facilitators’ Package with Article 52(1) of the EUCFR read in conjunction with Articles 2 (right to life), 3 (right to the integrity of the person), 6 (right to liberty and security), 7 (respect for private and family life), 17 (right to property) and 18 (right to asylum) of the Charter. Thus, the reference challenges the validity of Article 1(1)(a) of the Facilitation Directive.
The Grand Chamber judgment
In its judgment, the CJEU conducts a proportionality test under Article 52(1) of the Charter and in this context considers the effect of Articles 7 (respect for private and family life), 18 (right to asylum), and 24 (the rights of the child).
Rather than examining the compatibility of Article 1(1)(a) of the Facilitation Directive with these Charter provisions (or those raised in the preliminary reference) generally, the CJEU only examines the interplay of Articles 7 and 24 of the EUCFR with the factual context applicable to this case. Drawing on the best interests of the child principle (see Article 3(1) of the Convention on the Rights of the Child), the Court finds that a person who brings into the territory of a Member State minors who are third-country nationals accompanying her and over whom she has custody is not facilitating unlawful entry. Such a person, in the Court’s assessment, has merely assumed an obligation stemming from her personal responsibility for, and family relationship with, the minors, to ensure that they receive the protection and care necessary for their well-being and development (see para 54 of the judgment).
The Court then moves on to discussing Article 18 of the EUCFR, explaining that since OB has submitted an application for international protection, she benefits from the non-criminalisation provision contained in Article 31 of the Refugee Convention, as well as the Charter provisions on family unity and the best interests of the child, which, in this context, mean that she cannot be penalised for having been accompanied by minor family members while entering irregularly.
Finally, the CJEU states that since an interpretation of Article 1(1)(a) of the Facilitation Directive in light of Articles 7, 24 and 52(1) of the EUCFR has the effect of excluding conduct such as OB’s from criminalisation, there is no need to examine the validity of Article 1 of the Facilitation Directive or to interpret its humanitarian exemption clause.
A Step in the Right Direction
Compared to the much more restrictive approach taken by Advocate General (AG) de la Tour in his Opinion on the Kinsa case, which for the most part remained confined to a discussion of the legality and proportionality of criminal offences and penalties, the Grand Chamber judgment has a lot to offer. Kinsa has the potential to positively impact the development of both EU anti-smuggling and asylum law. While the judgment is confined to the particular context of a parent or guardian facilitating minors’ irregular entry, it illustrates the potential of Charter rights to challenge the scope of the Facilitation Directive and to carve out exceptions to its applicability.
The judgment also upholds the importance of international law, referring to the Refugee Convention, the Convention on the Rights of the Child and the Smuggling Protocol, while explaining how these interact with a range of EU law instruments. The Court’s child-rights sensitive reading of Article 31(1) of the Refugee Convention to include a prohibition of penalisation for assisting irregular entry (see paragraphs 64-65 of the judgment) is particularly valuable. It explicitly recognises that the term ‘penalties’ in that article includes criminal law sanctions and that there is not only a prohibition of imposing criminal penalties for an individual’s own irregular entry, but also for the facilitation of others’ irregular entry.
What is more, the judgment makes important comments pertaining to EU asylum law. In particular, the Court states that:
‘the right of any third-country or stateless person to make an application for international protection on the territory of a Member State, including at its borders or in its transit zones, even if he or she is staying illegally in that Member State, must be recognised, irrespective of the prospects of success of such a claim’ (paragraph 61; emphasis added).
This is useful in light of the EU’s New Pact on Migration and Asylum whose instruments seek to restrict protection seekers’ rights. As such, the judgment may also help challenge policies aimed at applicants with supposedly low changes of being granted asylum, such as persons subjected to the accelerated procedures (see Article 42 Asylum Procedures Regulation).
A Restrictive Approach?
The Court, however, does not question – or rather, does not find it necessary to examine – the validity of Article (1)(1)(a) of the Facilitation Directive. As such, the Directive and the overcriminalisation it has created, remain in place. Unlike the AG’s Opinion, the judgment does not discuss the principle of legality. AG de la Tour noted that the principle ‘requires that the person subject to the law should be able to know, from the wording of the relevant provision … which acts and omissions will make him or her criminally liable’ (Opinion, para 72). However, several provisions in the Facilitation Directive create uncertainties regarding criminal liability. For example, the intentionality requirement in Articles 1(1)(a) and 1(1)(b) and the concept of ‘financial gain’ in the latter. Similarly, the humanitarian exemption clause in Article 1(2), which the Court also chooses not to discuss, creates uncertainty due to its the discretionary nature, its limitation to assisting irregular entry, and uncertainty about the scope and meaning of ‘humanitarian’.
In practice, few of the people acting in solidarity with migrants and being criminalised for it will be in a factually similar enough situation to benefit from the exception carved out in the judgment. While Article 31(1) of the Refugee Convention protects persons who have claimed asylum from penalties, it does not protect civil society actors or organisations assisting migrants. Even for individuals who are in a more or less similar situation compared to OB, a lack of certainty arises. It remains unclear under what circumstances an adult is accepted to have responsibility for a child. Indeed, the judgment already envisages applicants merely pretending to have family ties with those whose entry they facilitate and states that such persons would not benefit from the exception to criminalisation (paragraph 67 of the judgment).
It also remains unclear whether the prohibition of criminalisation for facilitation only applies to persons who, like OB, have ‘come directly’ (by plane, albeit via a third country) or whether the argument could be extended to persons arriving via complex and dangerous routes, who make up the majority of irregular arrivals. There are many more open questions. For example, whether the Court’s reasoning can be applied only to guardians of minors, or also to persons facilitating the irregular entry of adult children, other family members or friends and acquaintances. Peers argues that at least an application to family relationships beyond parents and children should be possible.
However, since the Court bases its reasoning on the existence of a responsibility for the minors in question, other constellations in which a similar responsibility does not apply may well not be able to benefit from the exemption of criminalisation established in Kinsa. It is interesting to note that the idea of OB having acted out of a responsibility for the minors, and the acknowledgement that she should therefore not be criminalised for her actions, seems to stem from the European Commission’s written observations (see paragraph 45 of the judgment).
This is an unsurprising suggestion for the Commission to make, seeing as its 2023 proposal for a recast Facilitation Directive states that ‘it is not the purpose of this Directive to criminalise, on the one hand, assistance provided to family members and, on the other hand, humanitarian assistance or the support of basic human needs provided to third-country nationals in compliance with legal obligations’ (Recital 7).
The recast proposal thus shows the Commission’s approach to ‘reforming’ EU anti-smuggling law: introducing limited (and insufficiently precise) exceptions to who can be criminalised for facilitation while otherwise upholding and arguably expanding criminalisation, including of migrants and civil society actors. The proposal does not contain a mandatory exemption of those providing humanitarian assistance from prosecution and even if such a provision were to be added to the text, the phrase ‘in compliance with legal obligations’ suggests that such an exemption would be confined to humanitarian assistance ‘mandated by law’ or by family ties.
Indeed, the Commission’s 2020 Guidance on the Implementation of EU Rules on Definition and Prevention of the Facilitation of Unauthorised Entry, Transit and Residence states that ‘it is clear that [the Facilitators Package] cannot be construed as a way to allow humanitarian activity that is mandated by law to be criminalised, such as search and rescue operations at sea’ (emphasis added). In this context, the guidance refers to international law, including the Convention on the Law of the Sea (UNCLOS), the International Convention for the Safety of Life at Sea (SOLAS), and the International Convention on Maritime Search and Rescue (SAR).
However, many of the actors currently criminalised under the Facilitation Directive’s provisions will neither be able to claim that their actions are mandated by law (in line with the above instruments or otherwise), nor will they have any (parental) responsibility for, or other family ties with, the migrants they are assisting. As such, it may be that Kinsa has merely carved out an exception that the Commission was already planning to introduce through future legislation.
It remains to be seen whether the Kinsa judgment is the beginning of new litigation carving out more and more exceptions from criminalisation and therefore a big win for migrants and their supporters, or whether it will remain a narrowly confined exception to an otherwise prevalent phenomenon and thus a big win for the Commission and those seeking to expand, rather than challenge, the criminalisation of facilitation of irregular entry, transit and stay.
Dr Maja Grundler is a Lecturer in Law at Northumbria Law School and holds a PhD in Law from Queen Mary, University of London and an MSc in Refugee and Forced Migration Studies from the University of Oxford. She is the co-founder and co-chair of the Human Trafficking Research Network and a Research Affiliate at the Refugee Law Initiative.
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