European justice prohibits criminal sanctions against asylum seekers who arrive illegally.

BrusselsThe Court of Justice of the European Union (CJEU) ruled on Tuesday that member states cannot sanction asylum seekers who have entered community territory illegallyThe resolution clarifies that they cannot be sanctioned if they have entered the country accompanied by minors over whom they have guardianship.

Luxembourg has issued a similar ruling on an Italian case from August 2019. A woman from a third country arrived in Italy through Bologna Airport with her underage daughter and niece using false passports. She claimed she was fleeing her country because they were in danger due to threats she was receiving from her ex-partner. After a while, she submitted an application for international protection.

The woman's irregular entry with the two minors over whom she had guardianship reached the Bologna Court. The Italian court had to decide whether she had violated EU asylum law and whether criminal sanctions should be applied. Given the doubts, however, it referred the case to Luxembourg, which on Tuesday definitively ruled that a criminal sanction would be unlawful.

Beyond her protection, the Italian court also questioned the fact that she had arrived in EU territory with two minors. In this regard, the CJEU is also forceful. "This behavior is exercised within the framework of effective custody," the opinion states. Thus, the Luxembourg court emphasizes that a "contrary interpretation would constitute a particularly serious interference with the fundamental right to respect for family life and the fundamental rights of minors," and indicates that under no circumstances can the asylum seeker be considered to have sought to encourage "illegal immigration."

Thus, the highest European court concludes that Member States "may not go beyond the scope of the general infringement of facilitating irregular entry," as stipulated in EU law. Furthermore, it emphasizes that having requested international protection, she cannot be considered to be in the EU "irregularly" if at least a first-instance decision indicating this has not been adopted.