The ruling of the Court of Justice in Kinsa: A first step towards the decriminalisation of the facilitation of unauthorised entry?
By Prof. Valsamis Mitsilegas, University of Liverpool, UK
One of the most eagerly awaited judgments by the Court of Justice in recent months has involved the litigation in the case of Kinsa. Its significance lies in the fact that this was the Court’s first opportunity to interpret the scope of EU criminal law on the facilitation of unauthorised entry, as well as the compatibility of the current overcriminalisation of facilitation with fundamental rights. The ruling is also a landmark because of its potential influence on shaping future EU criminal law in the field, particularly in view of the current negotiations on a new facilitation Directive to replace the facilitators’ package (see Mitsilegas, 2024). This commentary offers a rapid reaction to the Court’s ruling on Kinsa, which was delivered on 3 June 2025. The note will begin with outlining the background to the litigation and proceed with analysing the Opinion of the Advocate General and the ruling of the Court of Justice.
The Kinsa Litigation: background
A game changer in the reform of EU criminal law on facilitation has appeared in the form of a reference for a preliminary ruling to the Court of Justice by the Tribunale di Bologna in Italy. In the Kinshasa reference, (eventually renamed as Kinsa), lodged on 21 July 2023, the referring Court has asked the CJEU whether the criminalisation of the facilitation of unauthorised entry in EU law and in national law is compatible with the Charter, even when the conduct is non-profit in nature, and given that the legal framework does not oblige Member States to exempt humanitarian assistance from criminal liability. The referring Court focused on the principle of proportionality referred to in Article 52(1), read in conjunction with the right to personal liberty and the right to property referred to in Articles 6 and 17, as well as the rights to life and physical integrity referred to in Articles 2 and 3, the right to asylum referred to in Article 18 and respect for family life referred to in Article 7 of the Charter. The reference is welcome in stressing the potential adverse effect of the overcriminalisation of facilitation on a wide range of fundamental rights.
The facts in Kinsa lay bare the shaky normative foundations and adverse effects of overcriminalisation of facilitation of unauthorised entry in EU and Italian law (Mitsilegas, 2024). They involve the prosecution of a Congolese woman arriving at the air border of Bologna for the facilitation of the unauthorised entry of her minor daughter and niece (paras. 1-5). The referring court queried the compatibility of the national legislation, and the underlying EU law, with the Charter. It stated that, under Italian legislation, the offence of facilitating unauthorised entry is by its nature an offence of danger, penalising the conduct solely on the basis of intent to procure unauthorised entry to a foreign national, regardless of motive and without requiring any profit-making intent (para. 8).
The Court added that the offence is “free-form”, in the sense that the offence may be committed in any way by the perpetrator, using any means (para. 9). The criminal penalty also applies to those who have facilitated the unauthorised entry of a foreign national for humanitarian assistance purposes and even if the foreign national is in need (para. 11). The referring court noted that the Italian legislation complied with the facilitators’ package (para. 12) and that in the present cases it was clear that the conduct of the accused objectively corresponded to conduct punishable for the offence provided for in domestic law (para. 22). Yet the referring court questioned the reasonableness of such criminalisation and its compatibility with fundamental rights enshrined in the Charter, noting that the protection of those rights must be taken into account in any balancing exercise which must form the basis of the common immigration policy. The court further noted that in both the EU regulatory framework and the Italian legislation, there is a lack of proportionality in favour of the protection of the interest in controlling migration flows, which also results in an unnecessary sacrifice of fundamental rights (para. 17).
The AG Opinion
The Opinion of AG De La Tour was delivered on 7 November 2024. The Advocate General did not go as far as challenging the current EU legal framework on criminalisation, but placed national authorities under the duty to scrutinise criminalisation from the prism of the proportionality principle as enshrined in Article 49(3) of the Charter. According to the Advocate General, Article 1(1)(a) of Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, must be interpreted as meaning that the act by which a mother, a third-country national, intentionally contributes to the unauthorised entry into the territory of a Member State of her daughter and niece, minors over whom she has custody, by using false identity documents, constitutes an offence. In assessing the question on overcriminalisation, therefore, the Advocate General has not questioned the validity of Article 1(1)(a) of Directive 2002/90 in the light of the principles of the legality and proportionality of criminal offences and penalties, enshrined in Article 49(1) and (3) of the Charter.
However, according to the Advocate General, the principle of the proportionality of criminal offences and penalties, enshrined in Article 49(3) of the Charter, precludes a system which would not allow the national court to balance the interests at stake and to differentiate between the criminalisation of a person acting out of humanity or necessity, in the sole interest of the minors, and that of a person motivated solely by the intent to commit the criminal offence for financial gain. It is for the referring court to carry out a specific examination of the proportionality of national legislation, which imposes on anyone facilitating unauthorised entry into national territory, of a custodial sentence of between two and six years and a financial penalty of EUR 15 000 per person concerned, having regard, in particular, to the possibility of exonerating from criminal liability persons whom are shown to have acted disinterestedly, out of altruism, compassion or solidarity, for humanitarian reasons or because of family ties, or of adapting the system of penalties applicable to them.
The Opinion of the Advocate General was a welcome step in placing national courts under a duty to assess the criminalisation of the facilitation of unauthorised entry in conformity with the principle of proportionality as enshrined in Article 49(3) of the Charter. It was also welcome in that it did not limit the proportionality test to the specific circumstances of the present case, but extended the test to lead to the exoneration from criminal liability of any person who is shown to have acted disinterestedly, out of altruism, compassion or solidarity, for humanitarian reasons or because of family ties. On the other hand, the Advocate General’s approach would perpetuate overcriminalisation and legal uncertainty, by maintaining the validity of the very broadly and vaguely defined offences in the EU facilitators’ package, and subsequently the validity of overbroad national criminal law on facilitation. National courts are only to intervene ex post to exonerate from criminal liability, which already exists in national law. In some Member States, assigning this task to national courts could be seen as a challenge in view of the separation of powers between the legislator and the judiciary. A similar issue has arisen in the Taricco litigation, also involving Italy, by the CJEU requirement for national courts to disapply national law on the statute of limitations (Mitsilegas, 2018). The state of legal uncertainty regarding the criminalisation of the facilitation of unauthorised entry is being perpetuated by the Council in negotiations on the new facilitators’ Directive: the Council’s General Approach adds the requirement for financial gain for criminalisation (Art. 3), but on the other hand leaves Member States free to adopt broader criminalisation in their national law (Preamble, recitals 6 and 6(a)).
The Court’s ruling
The Court of Justice delivered its ruling in Kinsa on 3 June 2025. The Court held, sitting in Grand Chamber, that Article 1(1)(a) of Directive 2002/90, read in the light of Articles 7 and 24 and Article 52(1) of the Charter, must be interpreted as meaning that the conduct of a person who irregularly brings into the territory of a Member State minors who are third-country nationals accompanying him or her and under his or her custody, does not fall within the scope of the general offence of facilitation of unauthorised entry. Additionally, the Court held that those articles preclude national legislation criminalising such conduct (para. 73).
To reach this conclusion, the Court departed from the approach of both the referring court and the Advocate General. The Court reformulated the questions of the referring court, which addressed the examination of the compatibility of the criminalisation of humanitarian assistance with EU law, to a much narrower scope reflecting the facts of the specific case. The Court focused specifically on whether Article 1(1)(a) of Directive 2002/90, read in the light of Articles 7, 18 and 24 of the Charter, must be interpreted as meaning that the conduct of a person who irregularly brings into the territory of a Member State third-country national minors, over whom he or she exercises actual care, does not fall within the scope of the general offence of facilitation of unauthorised entry and whether those Charter provisions must be interpreted as precluding national legislation criminalising such conduct (para. 39).
Formulating the questions in this manner enabled the Court to avoid examining the validity of Article 1 of Directive 2002/90 or to interpret Article 1(2) of that Directive, which relates to exemption from criminal liability for conduct aimed at providing humanitarian assistance to the person concerned (para. 68). Unlike the Advocate General, who primarily focused on the interpretation of national law, the Court did proceed to re-interpret the scope of elements of EU law within the narrower confines resulting from the reformulation of the questions asked. On the other hand, also unlike the Advocate General, the Court refrained from extending the analysis to humanitarian assistance more broadly, again defining the scope of the questions in a narrower way.
The Court justified the exclusion of the conduct under examination in this case from the scope of EU criminal law on facilitation of unauthorised entry on the basis of the requirement to respect Article 7 and 24 of the Charter, on the right to private life and best interests of the child respectively (paras. 46-51). The Court held that a contrary interpretation of that provision would entail a particularly serious interference with the right to respect for family life and the rights of the child, enshrined, respectively, in Articles 7 and 24 of the Charter, to such an extent that it would undermine the essence of those fundamental rights, within the meaning of Article 52(1) of the Charter (paras. 52-53). The Court held that a person such as the mother subject to prosecution in the present case, in principle merely assumes an obligation inherent to his or her personal responsibility, based on his or her family relationship with those minors, to secure their protection, well-being and development. The Court concluded that the conduct under examination is, above all, the concrete expression of his or her general responsibility towards those minors (para. 54). In addition to the fundamental rights justification, the Court held that criminalising such conduct is contrary to the objectives of Directive 2002/90 as such conduct does not constitute facilitation of illegal immigration, which that directive seeks to combat, but reflects the individual’s personal responsibility arising from the care they provide to the minors involved (para. 45).
Importantly, the Court of Justice did not stop in the examination of the compatibility of the criminalisation of facilitation on the basis of the facts of the case with Articles 7 and 24 of the Charter, but proceeded to hold that the interpretation adopted by the Court is also necessary in the light of the right to asylum enshrined in Article 18 of the Charter (paras. 57-58). The Court further cited a number of protective provisions of secondary law in this context, including Article 6 of the facilitation Framework Decision (Geneva Convention – para. 59) and Article 3(b) of the Schengen Borders Code (Schengen Borders Code – para. 60). Importantly, the Court reiterates its earlier case-law to hold that the right of any third-country national or stateless person to apply for international protection on the territory of a Member State, including at its borders or in its transit zones, must be recognised, even if he or she is staying illegally and irrespective of the prospects of success of such a claim. When such an application is made, an applicant cannot, in principle, be regarded as staying illegally on the territory of the Member State concerned, so long as no decision has been given on that application at first instance, in order to preserve the effectiveness of the right to asylum, as guaranteed by Article 18 of the Charter (Case C-808/18 para. 102; C-821/19 paras. 136 and 137 – para. 61). The Court also emphasises that measures which, without reasonable justification, result in discouraging a third-country national from submitting his or her application for international protection, are liable to undermine the effectiveness of the right to asylum, as guaranteed by Article 18 of the Charter (Case C-808/18 paras. 102, 103, 118 and 119 C-823/21 paras. 47 to 51- para. 62).
In terms of the impact of this interpretation of EU law on national criminal law, the Court held that when transposing Article 1(1)(a) of Directive 2002/90, Member States may not establish, in national law, rules that would go beyond the scope of the general offence of facilitating unauthorised entry, as defined by that provision, by including conduct not covered by it, in breach of Articles 7 and 24 and Article 52(1) of the Charter (para 71). The Court further clarified that Articles 7 and 24 of the Charter are self-sufficient and do not require further specification in EU or national law to grant individuals enforceable rights. Consequently, if the referring court were to find that it is not possible to interpret its national law in conformity with EU law, it would be required to ensure the judicial protection of the rights conferred on individuals by the Charter and to guarantee their full effectiveness by disapplying, if need be, Article 12 of the Consolidated Law on Immigration (para. 72).
For those who view the glass as half empty, the Court’s ruling in Kinsa is a missed opportunity to examine the compatibility of the criminalisation of humanitarian assistance with fundamental rights. The narrow focus of the Court to the facts of the case perpetuates legal uncertainty regarding the position of those providing humanitarian assistance to migrants, including civil society organisations subject to a sustained establishment of a hostile environment. This means that the impact of the ruling on the current negotiations of a new Directive on facilitation may be more limited than hoped for.
On the other hand, those who view the glass as half full, will hail Kinsa as a significant step forward: the Court relied expressly on an array of fundamental rights and Article 52(1) of the Charter to interpret EU criminal law on facilitation, leading to a degree of decriminalisation at EU and at national level. In addition to family life and the rights of children, the Court examined specifically the impact of criminalisation on the right to asylum, in a significant finding that irregular entry leading to the submission of an asylum application, and until the issuance of a first instance decision, is not to be treated as a criminal offence. This finding, along with the Court’s express reliance on international law not only in terms of refugee law, but also in terms of the Palermo Convention (para. 66), can open the door towards the decriminalisation of humanitarian assistance, if the latter is linked to enabling the exercise of the right to asylum (see Mitsilegas, 2024).