In the End… Who Cares?

On 3 June 2025, the Grand Chamber of the European Court of Justice delivered its judgment on the Kinsa – Case C‑460/23, originally opened upon request for a preliminary ruling from the Tribunal of Bologna (see also the summary available in English, and here on this blog). At the core of the matter were the criminal charges of a third-country national, OB, for the facilitation of unauthorized entry of two minors in the territory of an EU Member State. Notably, upon arrival in Italy, OB had submitted a request for international protection. The Grand Chamber held that OB was acting in the exercise of “actual care” over the children and, therefore, the conduct did “not fall within the scope of the general offence of facilitation of unauthorised entry” (para. 73). With the Kinsa ruling, the Court takes an important step towards the de-criminalization of care for migrant children who are seeking international protection, though entering unauthorized in the territory of an EU Member State. However, the Grand Chamber’s reasoning offers limited considerations on the relevant links between “actual care” – a concept heavily relied on in the judgement –, humanitarian assistance, and migrant children’s rights. This shortcoming in the Kinsajudgement may ultimately curb protection standards of migrant children in future cases.

Facts, law and questions

OB, a Congolese citizen, accompanying two minors, arrived in Italy on 27 August 2019, via air travels from Casablanca to Bologna, and filed a request for international protection. OB was criminally charged in Italy for facilitating unauthorized entry of two minors. One of them was OB’s daughter, as the Italian authorities eventually proved through a forensic assessment (para. 25). It was also established that the other minor was OB’s niece (para. 26).

With regard to the relevant EU law, the main legal instruments governing the facilitation of unauthorized entry, transit, and residence are the Council Directive 2002/90/EC (the Facilitation Directive) and the Council Framework Decision 2002/946/JHA (the Framework Decision), which together form the “Facilitators Package” (for an overview of this “Package” and for a background of the Kinsa case, see Zirulia). Specifically, Article 1(1)(a) of the Facilitation Directive requires Member States to criminalize irregular entry, requiring “effective, proportionate and dissuasive” penalties as per Article 1(1) of the Framework Decision. In Kinsa, the Court confirmed that OB was prosecuted for facilitating unauthorized entry into Italy (para. 35).

The Tribunal of Bologna referred two questions to the Court (para. 31), which the Grand Chamber considered together, noting that the referring Tribunal was asking, essentially, whether Article 1 of the Facilitation Directive and Article 1 of the Framework Decision were valid in light of the Charter of Fundamental Rights of the European Union (the Charter). Moreover, the referring Tribunal was seeking clarification “about the interpretation of the Charter in order to determine whether it precludes the national provisions transposing those articles [i.e. secondary EU law] into Italian law.” (para. 33). In this context, the relevant provisions of the Charter are Article 7 (right to respect for family life), and Article 18 (guarantee of the right to asylum) and Article 24 (rights of the child).

Unauthorized entry versus “actual care”

In the judgement, the Court first recalled Article 1(1)(a) and reflected on the meaning and scope of “general offence of facilitation of unauthorised”, stressing the “open wording” of the provision (paras. 40-42). To interpret Article 1(1)(a), the Grand Chamber referred to recitals 1 and 2 of the Facilitation Directive, which indicate that the EU legislature intended to combat the facilitation of illegal immigration in various forms (para. 42). The Court then explicitly agreed with the European Commission’s observation in the Kinsa case that OB’s “conduct does not constitute facilitation of illegal immigration, […] but stems from the assumption by the person concerned of his or her personal responsibility by virtue of the care that he or she exercises over those minors” (para. 45).

The Grand Chamber reinforced this argument by turning to the Charter. Reading Articles 7 and 24 together, the Court underlined that a child’s right to a family life ought to be considered along with the child’s right to protection and care, in line with the best interests of the child (paras. 46-51). It concluded that punishing someone for helping minors – over whom they exercise “actual care” – to enter a Member State without authorization would undermine the essence of these fundamental rights (para. 53). Accordingly, if “actual care” is exercised, such conduct does not fulfill the requirements of general offence of unauthorized entry in light of Articles 7 and 24 (para. 56).

The Court then turned to Article 18 of the Charter, which establishes the right to asylum in accordance with the 1951 Geneva Convention (paras. 57-58). In particular, drawing on Article 31 of the 1951 Geneva Convention, the Grand Chamber stressed that Member States ought to receive applicants for international protection whilst upholding the best interests of the child and preserving family unity (para. 63). Thus, although the Court discussed Articles 7 and 24 together and treated Article 18 somewhat separately, it ultimately brought all three Charter provisions back into its reasoning at this stage, highlighting the principles of the best interests of the child and of family unit. The Court concluded that OB “cannot be subject to criminal penalties” since she had applied for international protection in Italy and was providing “actual care” for her daughter and niece (para. 65).

Finally, the Grand Chamber addressed the smuggling charge and interpreted Article 1(1)(a) in light of Article 2 of the 2000 Palermo Protocol against the Smuggling of Migrants, which criminalizes migrant smuggling (para. 66). The Court took a cautious approach here: Though it confirmed that Article 2 of the Protocol supported its interpretation of Article 1(1)(a), it also conceded that this approach does not exclude from criminal liability any conduct that, under the pretext of family ties, may in fact serve other aims, such as facilitating illegal immigration (para. 67).

In sum, the Court ruled that conduct consisting in the exercise of “actual care” – or, in the Commission’s terms, exercise of “a responsibility by virtue of care” – does not fall within the scope of Article 1(1)(a) of the Facilitation Directive, setting out the general offence of facilitation of unauthorized entry.  The Grand Chamber also established that 7 and 24 and Article 52(1) of the Charter “preclude national legislation criminalizing such conduct” (para. 74).

A missing thread?

The Kinsa judgment merits careful unpacking, especially in relation to the Grand Chamber’s prominent reliance on the concept of “actual care”. In order to do so, we need to take a step back. At the core of the referring Tribunal’s question originally stood the validity of Article 1 of the Facilitation Directive and Article 1 of the Framework Decision in light of the EU Charter.Nevertheless, the Grand Chamber did not address the validity of these provisions (cf. the Advocate General, Richard de la Tour, in his Opinion delivered in November 2024, at para. 50). Rather, the Court argued that interpreting Article 1(1)(a) in line with Articles 7, 24 and 52(1) of the Charter meant that conduct like OB’s would fall outside the scope of the offence of facilitating unauthorized entry. Furthermore, the Grand Chamber held that there was no need to assess its validity “or to interpret Article 1(2) thereof, which relates to exemption from criminal liability in cases where the aim of the conduct at issue is to provide humanitarian assistance to the person concerned.” (para. 68).

On the Grand Chamber’s part, lack of engagement with the validity of Article 1 of the Facilitation Directive is a significant weakness of the judgement for at least two reasons. First, one may surmise that the Court indirectly confirms the validity of the general infringement provision by not commenting on it (Article 1(1)). Second, the absence of any discussion of Article 1(2) may influence how the exemption from the general offence for providing humanitarian assistance is interpreted in the future. The Court misses an important opportunity to further expand on the concepts of “actual care” and its possible connections to “humanitarian assistance”, here.

Moreover, without further guidance on how these terms should be interpreted, there is a risk of misapplying Article 27(2) of the Convention on the Rights of the Child (1989), which sets out the responsibility of a parent or guardian to care for the child. Notably, the Court does not deal with the relevant connections between Article 27(2), the principles of the best interests of the child – including care – and the humanitarian assistance that may be sought by a minor. This omission risks limiting the legal protection available to migrant children in future cases.

Last, a fuller discussion of the Palermo Protocol would have added important depth. The Court acknowledged that the Protocol’s purpose is to criminalize smuggling. However, it remains debatable whether it truly does so “while protecting the rights of the migrants themselves,” as the Grand Chamber put it (para. 66). Protecting migrants’ rights is closely connected to humanitarian assistance – which, again, deserved more thorough treatment, particularly in relation to migrant children’s need for care. Although the judgment did not revisit the overall validity of Article 1 of the Facilitation Directive, greater engagement with the interpretation of Article 1(2) and its implications for humanitarian assistance and the de-criminalization of care would have at least strengthened the reasoning.

To conclude, whether or not the Court deliberately decided not to engage with the points raised above as part of a strategic move to coordinate with the upcoming legislation proposed by the European Commission, is to be seen (on this question, see Peers and Grundler). A lot is to be expected, from a legislative and judicial point of view, both at regional and international levels. Undoubtedly, the ramifications of the Kinsa judgements will be far-reaching and felt for years to come.