A third-country national arrived at Bologna Airport, Italy, in August 2019, using false passports. The Congolese woman was accompanied by her daughter and niece, both minors of the same nationality, and they fled Congo due to threats made by her former partner. They sought international protection upon arrival, submitting an application for asylum. Was the woman criminally liable for facilitating the irregular entry of foreign minors?

The District Court of Bologna referred the question to the Court of Justice of the European Union (CJEU) for a preliminary ruling, asking the EU's supreme jurisdiction to determine whether the application of a punishment for facilitating unauthorised entry within an EU country in such circumstances is compatible with EU law. 

The CJEU answered that a parent or guardian who brings their own children into EU territory, even using false documents, is not committing the criminal offence of ìsmuggling’ third-country minors, provided the conduct is performed in the exercise of parental and guardian responsibility. 
According to the CJEU, this conduct constitutes a genuine expression of parental care for their children and cannot be penalised. A contrary interpretation would interfere with the fundamental right to family life and the rights of the child, and therefore be in breach of Article 7 and Article 24 of the EU Charter of Fundamental Rights (EUCFR). This interpretation also applies to the right to asylum, as the person concerned had made an application for international protection; therefore, she could not be prosecuted for staying in the territory illegally. 

EU law establishes that Member States cannot criminalise what EU law considers a right, and any national law that tries to do so would be invalid under the Charter. This judgement prevents EU member states from implementing divergent national laws that might punish parents for actions that are explicitly allowed under EU law, ensuring equal treatment across Member States.