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Date when decision was rendered: 29.6.1998 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 1228 (483/3/97) Reference to source KHO 1998:28. Yearbook of the Supreme Administrative Court 1998 January-June Högsta förvaltningsdomstolens årsbok 1998 januari-juni Korkeimman hallinto-oikeuden vuosikirja 1998 tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Administrative Court Date of publication: 1998 Pages: pp. 169-179 Subject
children,
best interests of the child,
child welfare,
respect for family life,
Relevant legal provisions Child Welfare Act = barnskyddslag = lastensuojelulaki. ECHR-8; CRC-3; CRC-9; CRC-20 Abstract A was a single parent.Despite the assistance of the social welfare authorities, she had had serious difficulties in taking care of her child.At her own initiative A gave the child up for adoption.The child, which at the time was 18 months old, was placed in a foster family for the purpose of a future adoption.Some six months later A regretted her decision and wanted the child back.Meanwhile she had also married.The social welfare board transferred the guardianship of the child to itself and decided that the child would stay with the foster parents.The decision was submitted to the approval of the county administrative court.A asked the court to quash the decision of the social welfare board and wanted the custody of the child to herself.With reference to the Child Welfare Act, the court rejected A's appeal and affirmed the decision of the board.A appealed to the Supreme Administrative Court which also affirmed the board's decision regarding the custody of the child.However, the Court also noted that A's situation had changed since she gave her child up for adoption: she had married and during the appeal procedure had had another child.The Court stated that, as a rule, a transfer of guardianship is a temporary measure.Although the social welfare board had the guardianship of the child, the child could be temporarily placed in the care of the biological mother, provided, however, that the family receive the necessary assistance and support from the social welfare authorities. Two judges submitted dissenting opinions.The appeal procedure had taken almost three years.Meanwhile, the child had established a warm and safe relationship with the foster parents.Therefore, it was in the best interests of the child to stay with the foster parents.In addition to national legislation, one dissenting judge made a general reference to international treaties binding on Finland.The other dissenting judge also referred to Article 8 of the ECHR and to Articles 3, 9 and 20 of the Convention on the Rights of the Child. 23.10.2002 / 4.4.2003 / LISNELLM
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| [2 / 31] |
Date when decision was rendered: 15.6.1998 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1933; S97/1206 Reference to source KKO 1998:66. Decisions of the Supreme Court 1998 I January-June Avgöranden av Högsta domstolen 1998 I januari-juni Korkeimman oikeuden ratkaisuja 1998 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1998 Pages: pp. 373-377 Subject
fair trial,
public hearing,
best interests of the child,
children,
child welfare,
Relevant legal provisions sections 9, 10-1 and 14 of the Child Custody and Right of Access Act = lag angående vårdnad om barn och umgängesrätt 9 §, 10 § 1 mom. och 14 § = laki lapsen huollosta ja tapaamisoikeudesta 9 §, 10 § 1 mom. ja 14 §. ECHR-6 Abstract A had been convicted to six years of imprisonment for killing his wife B.On the night of the incident, B's mother D had taken care of A's and B's common child C (4 years old during the proceedings).Later, the social welfare board decided to take C into care and to place her in a foster home and, by a later decision, in a children's home. D, her daughter E and E's husband F had submitted a motion to the Turku of first instance according to which D should be granted custody of C and E and F should be appointed C's secondary guardians.The court of first instance referred to section 14-1 of the Child Custody and Right of Access Act, according to which a case concerning custody of a child is instituted by an application made by the parents together, by one of the parents, by the child's guardian or by the social welfare board.If the child has been left without a guardian, such an application may also be made by a relative or another person with a close relationship with the child (section 14-2).According to the court of first instance, although the right to take legal action was thus restricted, there was no contradiction between this provision and Article 6 of the ECHR.Although A had been sentenced to imprisonment, he nevertheless was C's legal guardian under the Child Custody and Right of Access Act.Therefore D, E or F, according to the court, did not have the right to demand custody of C.Their application was dismissed. D, E and F appealed to the court of appeal.The court of appeal referred to section 9 of the above-mentioned Child Custody Act according to which a child's custody may for extremely weighty reasons be granted to someone else than the child's parents.The crime A had committed showed that he was permanently incapable of taking care of a child.The court concluded that the best interests of the child would not be taken into account sufficiently, if the application of D, E and F was not heard before a court.A dissenting member of the court held with the decision of the court of first instance. A and the social welfare board appealed to the Supreme Court.In its decision the Supreme Court noted, that under the Child Custody and Right of Access Act, A is C's legal guardian and the relatives had no right to take legal action in the case under section 14-1 of the Act.There was also no need to give section 14-1 a wide interpretation, as prohibiting A, once having served his sentence, from acting as C's guardian.The social welfare board has a legal obligation, if necessary, to take action, in order to secure that the care of a child is arranged according to the best interests of the child. The Supreme Court noted that when interpreting the provisions on the right to take legal action, regard should be taken of the provisions of the Constitution Act and the ECHR.Also in the light of these provisions it is acceptable that relatives have the right to take legal action in custody cases only if the child has been left without a guardian.Restricting the right to take legal action is in the best interests of a child, in preventing the child from being involved in any possible discrepancies between the people that are close to the child. The Supreme Court quashed the decision of the court of appeal and upheld the decision of the court of first instance. 23.10.2002 / 31.5.2006 / RHANSKI
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| [3 / 31] |
Date when decision was rendered: 19.9.2000 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 2302; 4419/3/98 Reference to source Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
children,
best interests of the child,
respect for private life,
respect for family life,
family reunification,
Relevant legal provisions sections 9, 10, 19 and 22 of the Child Welfare Act = lag om barnskydd 9 §, 10 §, 19 §, 22 § = lastensuojelulaki 9 §, 10 §, 19 §, 22 §. ECHR-8; CRC Abstract The authorities had placed three children in substitute care with a foster family because of the father's problems with alcohol.The mother had died earlier.The children's father and their relatives were not satisfied with their access to the children or with the upbringing and care of the children in the foster family.The municipal social and health board had rejected the father's application concerning the possibility to place the children in the care of their aunt instead.The county administrative court had rejected the father's appeal.The father appealed to the Supreme Administrative Court. In addition to the Child Welfare Act, the Supreme Administrative Court discussed in detail the CRC and Article 8 of the ECHR.The Court emphasized, among other things, the provisions concerning the best interests of the child as a primary consideration in all actions concerning the child, the restrictions to the separation of the child from his or her parents as well as the right of the child to be heard in matters affecting the child.With reference to the case law of the European Court of Human Rights, the Court paid attention to the fact that taking a child into care should be a temporary measure and that all measures should aim at the reunification of the family.A balance should be struck between taking a child into care in order to protect the interests of the child, on the one hand, and the interests of the parents in the form of the reunification of the family, on the other.Special emphasis should be placed on the interests of the child. At the request of the Court, the children (aged 8, 9 and 11) were heard.They stated that they wished to live with their father in the first place, or with their aunt in the second place.The Court concluded that according to the documentary evidence presented in the case the foster family was capable of providing such circumstances as were required by the needs of the children.On the other hand, the children themselves wished to live with their father or their aunt and the children's relatives supported the latter alternative.The child welfare authorities which had been heard in the case did not object to this alternative.The Supreme Administrative Court concluded that placing the children in substitute care with a family which had been accepted by their relatives may contribute to the reunification of the family which is in line with the case law under Article 8 of the ECHR.The decisions of the social and health board and the county administrative court were quashed and the matter was returned to the board.The Court further noted that special emphasis should be placed in the continuation of the treatment required by the mental health of the children as well as to their possibility to stay in contact with the previous foster family. 28.10.2002 / 27.3.2003 / LISNELLM
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| [4 / 31] |
Date when decision was rendered: 30.3.2001 Judicial body: Turku Administrative Court = Åbo förvaltningsdomstol = Turun hallinto-oikeus Reference: Report No. 01/0146/2; 01907/00/5720 Reference to source Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta Date of publication: Subject
respect for private life,
respect for family life,
aliens,
best interests of the child,
family reunification,
residence permit,
Relevant legal provisions sections 1c, 15 and 18c of the Aliens Act = utlänningslag 1c §, 15 §, 18c § = ulkomaalaislaki 1c §, 15 §, 18c §. ECHR-8; CRC-3; CRC-9-1 Abstract A, who was a Russian citizen, had married C, a Finnish citizen.A and her daughter B, who was a minor, both applied for a permanent residence permit in Finland.C was unemployed, and A had no job in Finland either.The Directorate of Immigration rejected the applications.According to the Directorate of Immigration, B could not be granted a residence permit as she did not have guaranteed means of support.Considering this and other relevant circumstances relating to the matter, A could not be granted a residence permit either.C appealed against the decision to the administrative court. The administrative court referred, among other things, to Article 8 of the ECHR and to the best interests of the child as provided for in CRC and in the Aliens Act (section 1c).The court noted that A's application should be decided first, on the basis of the provisions in the Aliens Act concerning family members of Finnish citizens.According to the relevant provisions, a residence permit is issued to a spouse of a Finnish citizen unless there are reasons relating to public order or safety or other weighty reasons against issuing the permit (section 18c-1).The Directorate of Immigration had not presented any such reasons for refusing A's application.Once the decision on A's application had been made, B's application would be decided on the basis of provisions concerning family members of an alien residing in Finland with a permanent residence permit (section 18c-2).This provision included the requirement of guaranteed means of support.However, the court noted, this provision of the Aliens Act does not supersede the obligations set in international human rights treaties.Although a child has no general right to be granted a residence permit in the country in which his or her parents are residing, human rights provisions guarantee the unification of the family unless there are grounds against it as listed in Article 8 of the ECHR.In this particular case, B should be issued a residence permit for the purpose of family unification.The administrative court quashed the decision of the Directorate of Immigration and returned the matter to the latter for a new consideration. Two dissenting members of the court noted that Article 8 of the ECHR does not guarantee spouses the right to be issued a residence permit in the home country of one of the spouses nor the right to choose in which country they wish to live and, after that choice has been made, the right to family unification.The best interests of the child had to be taken into account, as provided for in the CRC and the Aliens Act.B had no guaranteed means of support.Furthermore, she had lived in Russia all her life and was adjusted to the cultural and linguistic environment of that country.It was in B's interest to live with her mother, but it was not necessary for them to move to Finland.When considering A's application for a residence permit, all circumstances relating to the matter should be taken into account in their entirety and emphasis should be placed on the best interests of the child B.As B's interests required that her living conditions remain unchanged for the time being, there were weighty grounds against issuing A a residence permit.The decision of the Directorate of Immigration did not curtail A's rights more than is necessary.The dissenting members rejected the appeal. 30.10.2002 / 11.4.2007 / RHANSKI
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| [5 / 31] |
Date when decision was rendered: 19.2.2002 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 356; 2180/3/01 Reference to source Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
aliens,
children,
best interests of the child,
family reunification,
Relevant legal provisions sections 1c, 18b-1, 18c-1 and 18c-2 of the Aliens Act = utlänningslag 1c §, 18b § 1 mom., 18c § 1 och 2 mom. = ulkomaalaislaki 1c §, 18b § 1 mom., 18c § 1 ja 2 mom. CRC-3-1; CRC-7-1; CRC-10-1 Abstract A had requested for asylum in Finland in 1991, but his application had been rejected and he had been deported to his home country in 1994.In his home country, A had a family with two children who were minors.A lived with his family during 1994-1995.In 1995, he married a Finnish citizen in his home country, was granted residence permit and moved to live in Finland.He received permanent residence permit in 1997.Having settled in Finland, he took action in his home country in order to establish his paternity and to register the children.The children were registered in 1998, and that same year A applied for a residence permit in Finland for the children on the basis of family reunification.In an interview at the Finnish embassy, the mother had agreed to it that the children should move to live with their father.She could not herself take care of the children, who were then living with their grandmother in poor conditions.The elder child, B, who at that time was 13 years of age, was heard and said that he wanted to move to live with the father. The Directorate of Immigration rejected the application for residence permit made by A on behalf of B.It referred to section 18c of the Aliens Act and considered that there were weighty reasons against issuing the permit and that A and B did not have guaranteed means of support in Finland.The administrative court dismissed A's appeal, but the Supreme Administrative Court granted A leave to appeal.When the case was taken up by the Supreme Administrative Court, A informed the court that the grandmother had died and the children where living alone without any adult person to take care of them.The Supreme Administrative Court referred to Articles 3-1, 7-1 and 10-1 of the Convention on the Rights of the Child and noted that considering the circumstances in which the children were living in their home country, it was in their best interests that they should live with their father who resided permanently in Finland and could support his family as he was running a business of his own.The fact that B had lived separated from his father could not be regarded as a weighty reason against issuing the residence permit in the meaning intended by section 18c of the Aliens Act.The court concluded that the application for a residence permit could not be rejected on the grounds given in the decision of the Directorate of Immigration.It quashed the decisions of the Directorate of Immigration and the administrative court and returned the matter to the Directorate of Immigration for a new consideration. 6.8.2003 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 27.5.2003 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 1292; 417/3/02 Reference to source KHO 2003:28. Yearbook of the Supreme Administrative Court 2003 January-June Högsta förvaltningsdomstolens årsbok 2003 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2003 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2005 Pages: pp. 284-290 Subject
respect for family life,
aliens,
residence permit,
best interests of the child,
Relevant legal provisions Sections 1c, 18b and 18c of the Aliens Act; sections 9 and 10 of the Constitution Act = utlänningslag 1c §, 18b § och 18c §; grundlagen 9 § och 10 § = ulkomaalaislaki 1c §, 18b § ja 18c §; perustuslaki 9 § ja 10 §. ECHR-8; CRC-3; CRC-7; CRC-10 Abstract A was married to a Finnish citizen C.From a previous marriage A had a child B who was a minor.The Directorate of Immigration had rejected their applications for a residence permit.According to the Aliens Act, as a spouse of a Finnish citizen A could have been issued a residence permit on the basis of a family tie.As B was not C's family member, as defined in the Aliens Act, B could be issued a residence permit only if B had guaranteed means of support.The Directorate of Immigration found that considering C's income this was not the case.It concluded that taking into account all the relevant circumstances in the matter and as B could not be issued a residence permit, A's residence permit should also be refused.The administrative court agreed with the decision and rejected the appeal made by C and B.The court also referred to the ECHR and noted that Article 8 did not guarantee a person a general right to receive a residence permit in the home country of his or her spouse.C appealed to the Supreme Administrative Court on behalf of B.The Supreme Administrative Court discussed both the Aliens Act, the ECHR and the CRC.Regarding Article 8 of the ECHR, the Court noted that Article 8 provides protection for genuine and close family life.It does not grant an alien a general right of residence in the home country of his or her spouse, nor does it guarantee a child a right to be issued a residence permit in the country where the child's parent is residing.However, Article 8 guarantees family reunification provided there are no specific grounds against it.The Court continued that the requirement of guaranteed means of support is not as such in conflict with Article 8 as it is possible to interfere with the right to family life in the interests of the economic well-being of the country.The Court then referred to the CRC and to the best interests of the child.The fact that B could not be issued a residence permit because B did not have guaranteed means of support could not alone be regarded as a weighty reason for refusing A's permit.In the Court's view, it should be considered in A's case whether the purpose of the marriage has been to lead genuine and close family life.Furthermore, B's ties to B's home country, other factors relating to the best interests of the child as well as their possible effect in considering A's residence permit had to be taken into account.As far as B's residence permit was concerned, the Court found that the requirement of guaranteed means of support could not supersede the obligations under the CRC.The Court then concluded that, in this case it should be assessed whether it is in B's best interests to follow A and whether one in that case has to deviate from the requirement of guaranteed means of support.On the other hand, if B's family ties are mainly in B's home country it must be considered whether it is in B's best interests that A's residence permit is refused.The case was returned to the Directorate of Immigration for a new consideration. 21.4.2004 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 17.12.2003 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 3240; 1612/3/02 Reference to source KHO 2003:92. Yearbook of the Supreme Administrative Court 2003 July-December Högsta förvaltningsdomstolens årsbok 2003 juli-december Korkeimman hallinto-oikeuden vuosikirja 2003 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2007 Pages: pp. 485-492 Subject
respect for family life,
best interests of the child,
family reunification,
aliens,
residence permit,
Relevant legal provisions Sections 1c, 18b and 18c of the Aliens Act; section 9 of the Constitution Act = utlänningslag 1c §, 18b § och 18c §; grundlagen 9 § = ulkomaalaislaki 1c §, 18b § ja 18c §; perustuslaki 9 §. ECHR-8; CRC-7-1; CRC-10 Abstract A had been granted residence permit in Finland on the basis of a family tie as A's sister had sought asylum and now resided in Finland.A was married to B who had also left his country of nationality and resided in another country.A and B had three children who had all been born in Finland.A applied for a residence permit on B's behalf on the basis of a family tie.The Directorate of Immigration rejected the application on the grounds that B did not have guaranteed means of support in Finland.A appealed to the Supreme Administrative Court.The Supreme Administrative Court referred to section 1c of the Aliens Act (best interests of the child), Article 8 of the ECHR and Articles 7-1 and 10 of the CRC.It found that considering all the relevant circumstances in the case, the requirement for guaranteed means of support as provided for in the Aliens Act could not supersede the relevant human rights provisions in this case.The bests interests of the children required that the family is unified in Finland where the children have lived since their birth.The matter was returned to the Directorate of Immigration for a new consideration. 21.4.2004 / 3.7.2009 / RHANSKI
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Date when decision was rendered: 28.12.2004 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 3391; 3045/3/03 Reference to source KHO 2004:121. Yearbook of the Supreme Administrative Court 2004 July-December Högsta förvaltningsdomstolens årsbok 2004 juli-december Korkeimman hallinto-oikeuden vuosikirja 2004 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2008 Pages: pp. 572-579 Subject
respect for private life,
respect for family life,
limitations of rights and freedoms,
best interests of the child,
children,
child welfare,
Relevant legal provisions sections 1, 2-1, 9-1, 10, 12 and 16 of the Child Welfare Act = barnskyddslagen 1 §, 2 § 1 mom., 9 § 1 mom., 10 §, 12 § och 16 § = lastensuojelulaki 1 §, 2 § 1 mom., 9 § 1 mom., 10 §, 12 §. ECHR-8; CRC-3; CRC-9; CRC-20 Abstract The social welfare board had taken B into care and had placed her in a children's home.B, who was 13 years of age, had occasionally used alcohol and had had outbursts of violent behaviour.She also tended to disobey her mother A, who was a single parent of six children.The social welfare authorities had provided economic assistance and counselling for the family.In the opinion of the social welfare board, assistance in open care had proved inadequate and taking B into care was necessary as the circumstances in the family along with B's own behaviour threatened to endanger her health and development.A and B objected to the decision, but the administrative court agreed with the social welfare board. The Supreme Administrative Court emphasized that the primary purpose of child welfare was to support the parents in upbringing their child, in the first place by means of assistance in open care.If such assistance is not appropriate or has proved inadequate, the child may be taken into care.In that case, in addition to national legislation, the relevant provisions of the Convention on the Rights of the Child and the ECHR must be taken into account.With reference to the decision of the European Court of Human Rights in the case of Couillard Maugery v.France (judgment of 1 July 2004), the Supreme Administrative Court noted that separating a family constitutes a serious interference with the right to family life.Therefore, such a measure has to be based on the best interests of the child and on weighty and justified grounds.The Court found that in B's case the social welfare board had not sufficiently considered other possible means of assistance.B had, for example, suggested that she could live with her uncle and his family.The Court ruled that it had not been shown in this case that assistance in open care had proved inadequate or that such assistance had not been appropriate or possible.In the Court's view, the requirements for taking a child into care as prescribed in section 16 of the Child Welfare Act had not been fulfilled.The Supreme Administrative Court quashed the decisions of the administrative court and the social welfare board and returned the case to the board for a new consideration. 25.4.2005 / 3.7.2009 / RHANSKI
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Date when decision was rendered: 5.12.2005 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 3219; 2306/3/05 Reference to source KHO 2005:87. Yearbook of the Supreme Administrative Court 2005 July-December Högsta förvaltningsdomstolens årsbok 2005 juli-december Korkeimman hallinto-oikeuden vuosikirja 2005 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2009 Pages: pp. 681-691 Subject
aliens,
marriage,
best interests of the child,
residence permit,
children,
Relevant legal provisions sections 6-1, 36-2, 37-1 and 114-1 of the Aliens Act; sections 4, 115-1, 117-2 and 139-2 of the Marriage Act = utlänningslag 6 § 1 mom., 36 § 2 mom. 37 § 1 mom. och 114 § 1 mom; äktenskapslag 4 §, 115 § 1 mom., 117 § 2 mom. och 139 § 2 mom. = ulkomaalaislaki 6 § 1 mom., 36 § 2 mom., 37 § 1 mom. ja 114 § 1 mom.; avioliittolaki 4 §, 115 § 1 mom., 117 § 2 mom. ja 139 § 2 mom. ECHR-8; ECHR-12; CCPR-23-2; CEDAW-16-1-b; CEDAW-16-2 Abstract A had applied for a residence permit in Finland on the basis of a family tie.A had married his cousin B who resided in Finland.B and her family had come to the country as refugees in 1996.The marriage took place in Syria in 2004.At that time, B was 15 years old and, as a minor, she could not have married under Finnish law without a special permission from the Ministry of Justice.The Directorate of Immigration rejected A's application, mainly on the grounds that granting him a residence permit was not in the best interests of the child, B.On A's appeal, the administrative court revoked the Directorate's decision.It held that, considering the cultural and religious background of the persons concerned, issuing A with a residence permit could not be regarded as being in contradiction with the best interests of the child (B).Also, the fact that A and B had so far not lived together as a family did not mean that there was no bond between the spouses requiring the protection of genuine family life. The Supreme Administrative Court agreed with the Directorate of Immigration and ruled that issuing a residence permit to A was in this case not in the best interests of B.Acknowledging that the marriage was valid under Syrian law and was therefore in principle also valid in Finland, the Court found that the mere validity of a marriage did not have an impact on the assessment of the matter concerning A's residence permit.In the Court's view, the fact that in some countries a person, who is still a minor according to Finnish law, may enter into marriage, cannot mean that, as a consequence, that person should be issued with a residence permit in Finland on the same grounds as a person who is of age when marrying.The Court also referred to the possibility that an applicant tries to evade the provisions on entry into a country by applying for a residence permit on the basis of a marriage to a person who is clearly a child.At the time the marriage between A and B was contracted, B was a minor and dependent on her parents in such a way that she cannot be considered to have given her full and free consent to the marriage.With reference to international human rights law, the Court ruled that immigrant girls also have the right to choose a spouse with their free and full consent, regardless of their culture and religion.The Supreme Administrative Court quashed the decision of the administrative court and upheld the decision of the Directorate of Immigration. 26.5.2006 / 3.7.2009 / RHANSKI
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Date when decision was rendered: 17.2.2005 Judicial body: Helsinki court of first instance = Helsingfors tingsrätt = Helsingin käräjäoikeus Reference: Report no. 4531; 04/27224 Reference to source Registry of the Helsinki court of first instance Helsingfors tingsrätts registratorskontor Helsingin käräjäoikeuden kirjaamo Date of publication: Subject
respect for family life,
children,
visiting rights,
prisoners,
best interests of the child,
children,
Relevant legal provisions sections 2 and 10 of the Child Custody and Right of Access Act = lag angående vårdnad om barn och umgängesrätt 2 § och 10 § = laki lapsen huollosta ja tapaamisoikeudesta 2 § ja 10 §. Abstract A had been convicted to imprisonment of several offences, among them the rape of his ex-wife B.A and B had two children, aged 2 and 3.A petitioned the court to grant him the right to meet with his children twice a month in the prison premises as long as he is serving his sentence.He was to be released in September 2005.A claimed among other things that the fact that he was not able to see his children while he was in prison violated his human rights.B objected to A's request.When A was imprisoned in 2002, the younger child was 5 months old, and she could no longer remember her father.The older child remembered A, but was afraid of him and had among other things suffered from nightmares having witnessed A's violent behaviour towards B.B herself did not want to be present when A met with the children, and the children could not be left alone with a parent who was a stranger to them and whom they were scared of.The court of first instance agreed with B.It ruled that in order to build a positive relationship of confidence between A and the children, the first meetings should preferably be brief and be arranged in an environment in which the children felt safe.In the court's opinion, it was not in the best interests of the children to grant A the right to meet with the children while he was in prison.The court rejected A's petition. 29.5.2006 / 29.5.2006 / RHANSKI
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Date when decision was rendered: 9.10.2009 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2454; 2291/1/08 Reference to source KHO 2009:85. Yearbook of the Supreme Administrative Court 2009 July-December Högsta förvaltningsdomstolens årsbok 2009 juli-december Korkeimman hallinto-oikeuden vuosikirja 2009 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 548-567 Subject
aliens,
respect for family life,
family reunification,
children,
rights of the child,
best interests of the child,
Relevant legal provisions sections 6-1, 36-2, 39-1 and 47-5 of the Aliens Act = utlänningslag 6 § 1 mom., 36 § 2 mom., 39 § 1 mom. och 47 § 5 mom. = ulkomaalaislaki 6 § 1 mom., 36 § 2 mom., 39 § 1 mom. ja 47 § 5 mom. ECHR-8; CRC-3; CRC-7: CRC-10 Abstract X, who was originally from Somalia, had been granted residence permit im Finland on the basis of family ties in 2002.X's sister had applied for family reunification for her mother and siblings.X had been presented as the minor and unmarried brother, and he fell thus within the definition of 'family member' under the Aliens Act.However, X had already at that time been married, with one child.In 2004, X applied for a residence permit on the basis of family ties for his wife, their three children and the wife's foster child.The Immigration Service rejected the application, whereas the administrative court, on X's appeal, would have granted the residence permit, referring, among other things, to the best interests of the child and to the fact that it had not been shown where else if not in Finland the family reunification could have taken place. The Immigration Service brought the case before the Supreme Administrative Court, which found that X had knowingly given false information on his family ties in order to evade the provisions on entry into the country and to receive residence permit in Finland as an unmarried and minor family memnber.This fact alone would warrant the cancelling of his own residence permit.When X had come of age in 2003, the family tie to his sister had broken.According to the Aliens Act, if an alien has been issued with a residence permit on the basis of family ties and the family tie is broken, a member of his or her family residing abroad may be issued with a residence permit, provided that the family member has secure means of support.When making a decision, however, account shall be taken of the possibility of that person to return to his or her home country or another country to live with his or her family there, if all his or her family ties can be considered to lie there.An exemption may be made from the requirement for secure means of support if there are exceptionally weighty reasons for such an exemption or if the exemption is in the best interests of the child. The Supreme Administrative Court noted that X's wife and the children had since 2005 been living in Ethiopia.X had visited his family in Ethiopia, and his youngest child was born there.In the Court's opinion, X had thus no insurmountable obstacles to lead family life in Ethiopia if he so wishes.The Court continued that it was also undisputed that X's wife and the children had no secure means of support as required under the Aliens Act.In considering a possible exemption from the requirement for secure means of support, the provisions concerning the best interests of the child in the Alien Act, Article 8 of the ECHR and the obligations under the CRC had to be taken into account.The Court found that considering all the circumstances in the case, there were no exceptionally weighty reasons for making an exemption from the requirement for secure means of support.The Court upheld the decision of the Immigration Service. 27.11.2009 / 21.10.2010 / RHANSKI
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Date when decision was rendered: 9.10.2009 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2457; 1878/1/08 Reference to source KHO 2009:86. Yearbook of the Supreme Administrative Court 2009 July-December Högsta förvaltningsdomstolens årsbok 2009 juli-december Korkeimman hallinto-oikeuden vuosikirja 2009 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 568-588 Subject
aliens,
respect for family life,
family reunification,
children,
rights of the child,
best interests of the child,
Relevant legal provisions sections 6-1, 36-2, 47-3 and 66a of the Aliens Act = utlänningslag 6 § 1 mom., 36 § 2 momm., 47 § 3 mom. och 66a § = ulkomaalaislaki 6 § 1 mom., 36 § 2 mom., 47 § 3 mom. ja 66a §. ECHR-8; CRC-3; CRC-7; CRC-10 Abstract X had arrived in Finland as an asylum seeker in 2004.He was 2½ years old and unaccompanied by a parent or guardian.The circumstances of his parents could not be clarified at that time, and in April 2005, X was issued with a residence permit on compassionate grounds.In Finland, X stayed with his uncle and his family.In June 2005, X applied for a residence permit on behalf of his parents and siblings.The Immigration Service turned down the application.Both the administrative court and the Supreme Administrative Court rejected X's appeal. In its decision, the Supreme Administrative Court referred to the hearing on family reunification where X's parents had told they had sent their eldest child to Finland with the purpose of getting residence permits in Finland both for themselves and their other children through family reunification.The parents were both born in Somalia but had lived in Ethiopia since 1991 and 1999 and were married there in 2000.In the Court's view, the parents had no compelling reason to send their child to Finland from Ethiopia where they had been residing as a family.The parents had not claimed that their safety or other fundamental rights would have been jeopardized while in Ethiopia.Moreover, they had decided to send X to Finland as an unaccompanied minor asylum seeker after the application for residence permit made by X's uncle on behalf of his own siblings had been rejected four times.The Court noted that, after his arrival in Finland, X had for five years now been living in good and safe circumstances with his uncle's family, had learned the Finnish language and could no longer communicate in his parents' language.He had no close ties to his family in Ethiopia and his cultural and social ties to Ethiopia could be regarded as broken.The Court continued that in assessing the requirements for issuing residence permits, the best interests of the child had also to be taken into account.In the Court's opinion, the provisions on the best interests of the child in the Aliens Act, Article 8 of the ECHR and the obligations under the CRC did not in this case require the issuing of residence permits.The Court concluded that X's application for residence permits on behalf of his parents and siblings could be rejected because of their apparent intention to evade the provisions on entry into the country under the Aliens Act. 30.11.2009 / 21.10.2010 / RHANSKI
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Date when decision was rendered: 16.4.2010 Judicial body: Helsinki Administrative Court = Helsingfors förvaltningsdomstol = Helsingin hallinto-oikeus Reference: Report no. 10/0303/5 Reference to source Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta Date of publication: Subject
citizenship,
children,
paternity,
best interests of the child,
rights of the child,
Relevant legal provisions sections 4 and 32 of the Nationality Act = medborgarskapslag 4 § och 32 § = kansalaisuuslaki 4 § ja 32 §. CRC Abstract X was a Finnish citizen and married to a Kenyan citizen Y.Their child Z was born in Finland in 2007 and acquired Finnish citizenship because the father X was a Finnish citizen.In 2008, X's paternity was annulled by a court decision.According to the Nationality Act, if the husband's paternity has been annulled or if a claim which has resulted in his paternity being annulled has been brought before the child has reached the age of five years, the child loses the Finnish citizenship which he or she has acquired on the basis of his or her father's citizenship.A decision on this is based on the overall consideration of the child's situation.In 2009, the Finnish Immigration Service made a decision to the effect that Z should lose the Finnish citizenship.The Immigration Service based its decision on the facts that the mother Y had objected to any investigation of paternity and had also not taken any action in order for the child to acquire Kenyan citizenship in accordance with Kenyan law.Y claimed that she did not know the child's father and that the child could not acquire Kenyan citizenship without the investigation of paternity.The administrative court noted that having lost the Finnish citizenship, Z could under the circumstances become stateless.According to the Nationality Act, the provisions of the Act on the loss of citizenship must not be applied if, as a consequence of the application of the provisions, a person were to become stateless.The court also referred to the best interests of the child and to international obligations on the rights of the child which are binding on Finland.It concluded that Z must be regarded as a Finnish citizen, despite the annulment of X's paternity.The administrative court revoked the decision of the Immigration Service and returned the matter to the Immigration Service for a new consideration. 26.1.2011 / 26.1.2011 / RHANSKI
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Date when decision was rendered: 25.3.2010 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 613; 1121/1/09 Reference to source KHO 2010:17. Yearbook of the Supreme Administrative Court 2010 January-June Högsta förvaltningsdomstolens årsbok 2010 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2010 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: 175-189 Subject
aliens,
respect for family life,
family reunification,
children,
best interests of the child,
Relevant legal provisions sections 6-1, 37-1, 39-1, 39-2, 47-3, 49-1-2, 49-1-4, 52-1, 52-2, 66a, 146-1 and 148-2 of the Aliens Act = utlänningslag 6 § 1 mom., 37 § 1 mom., 39 § 1 och 2 mom., 47 § 3 mom., 49 § 1 mom. 2 och 4 punkten, 52 § 1 och 2 mom., 66a §, 146 § 1 mom. och 148 § 2 mom. = ulkomaalaislaki 6 § 1 mom., 37 § 1 mom., 39 § 1 ja 2 mom., 47 § 3 mom., 49 § 1 mom. 2 ja 4 kohta, 52 § 1 ja 2 mom., 66a §, 146 § 1 mom. ja 148 § 2 mom. ECHR-8 Abstract A, a Tanzanian national, had arrived in Finland with a visit visa.While in Finland, A married B, also a Tanzanian national, who had arrived in Finland in 1998 and had a residence permit in Finland.She also had two minor children, born in Finland.A applied for a residence permit in Finland on the basis of a family tie, but the Immigration Service rejected the application.A appealed the decision to the administrative court which decided the case in A's favour and referred it back to the Immigration Service.The Immigration Service appealed to the Supreme Administrative Court. Because B had not been issued her residence permit on the grounds of refugee status or need for international protection, granting a residence permit to her family member requires, according to the Aliens Act, that the applicant has secure means of subsistence, which A did not have.A had no employment.B had previously been employed but was now a student.No clarification had been submitted to the court concerning B's earned income at the time.The question was whether an exception could be made to the subsistence requirement, on exceptionally weighty grounds or because of the best interests of the children.The court noted that A's family life with B and the children had started only after his arrival and marriage in Finland.It also found that there were no obstacles for the family to live in Tanzania.In assessing the best interests of the children, the court took into account their age (8 and 6) and the fact that they had only just started or were about to start school.The court held that the children were at an adaptable age, and if possibly moving to Tanzania, they would be accompanied by their mother and her husband who were both from that country.The court concluded that, under the circumstances, there were no grounds for making an exception to the subsistence requirement.The decision of the Immigration Service was upheld by the court. In addition to the Aliens Act, the court referred in its decision to Article 8 of the ECHR and the decisions of the European Court of Human Rights in the cases of Rodriguez da Silva and Hoogkamer v. the Netherlands (31 January 2006), Konstatinov v. the Netherlands (26 April 2007) and Darren Omoregie and Others v.Norway (31 July 2008). 22.10.2013 / 22.10.2013 / RHANSKI
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Date when decision was rendered: 25.3.2010 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 614; 1696/1/09 Reference to source KHO 2010:18. Yearbook of the Supreme Administrative Court 2010 January-June Högsta förvaltningsdomstolens årsbok 2010 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2010 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: 189-198 Subject
aliens,
respect for family life,
family reunification,
disabled persons,
children,
best interests of the child,
Relevant legal provisions sections 6-1, 37-1, 39-1, 39-2, 47-3 and 66a of the Aliens Act = utlänningslag 6 § 1 mom., 37 § 1 mom., 39 § 1 och 2 mom., 47 § 3 mom. och 66a = ulkomaalaislaki 6 § 1 mom., 37 § 1 mom., 39 § 1 ja 2 mom., 47 § 3 mom. ja 66a §. ECHR-8 Abstract A was a national of Bosnia and Herzegovina and had a permanent residence permit in Finland.In 2007, she married B, also a national of Bosnia and Herzegovina, and applied for her spouse to be granted a residence permit in Finland on the basis of a family tie.According to the Aliens Act, granting a residence permit required that the applicant has secure means of subsistence, which B did not have.A had no earned income and her subsistence came from social support and benefits.B had so far no employment in Finland.A was sole custodian and carer of her daughter, C, who was 16 years old and visually handicapped.B was not C's biological father.C had been admitted to Finland as a medical case through the UNHCR in 1996, at the age of 3, and A had accompanied her daughter. According to the Aliens Act, an exception to the subsistence requirement is possible on exceptionally weighty grounds or because of the best interests of the child.After an overall consideration of the case, the Immigration Service found no reason to make an exception to the subsistence requirement.The application was rejected.The administrative court decided the case in A's favour and held, among other things, that because of the best interests of the child, it was unreasonable to expect the family to move to Bosnia and Herzegovina.The Immigration Service appealed against the decision to the Supreme Administrative Court. In assessing whether an exception could be made to the subsistence requirement in this case, the Supreme Administrative Court took into account C's age at the time she arrived in Finland, the reason for her coming to Finland, the length of her stay and the special care she needed because of her visual impairment.In addition, the court noted that A was the carer of her daughter, who was clearly dependent on her mother.The court concluded that C's condition and the care she needed constituted an insurmountable obstacle which in practice prevented the family from moving to Bosnia and Herzegovina.Under the circumstances, there were exceptionally weighty reasons to make an exception to the subsistence requirement under the Aliens Act.The Supreme Administrative Court based its decision on the Aliens Act, but took also into account Article 8 of the ECHR and the decisions of the European Court of Human Rights in the cases of Rodriguez da Silva and Hoogkamer v. the Netherlands (31 January 2006), Konstatinov v. the Netherlands (26 April 2007) and Darren Omoregie and Others v.Norway (31 July 2008). 22.10.2013 / 22.10.2013 / RHANSKI
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Date when decision was rendered: 22.5.2013 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 1747; 1697/1/09 Reference to source KHO 2013:97. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
aliens,
residence permit,
respect for family life,
family reunification,
children,
best interests of the child,
citizenship (EU),
Relevant legal provisions sections 6-1, 37-1, 39, 47-5 and 66a of the Aliens Act; preamble paragraph 4, Article 1, Article 2-d and Article 7 of Council directive 2003/86/EC on the right to family reunification; Article 20-1 of the Treaty on the Functioning of the European Union = utlänningslag 6 § 1 mom., 37 § 1 mom., 39 §, 47 § 5 mom. och 66a §; Rådets direktiv 2003/86/EG om rätten till familjeåterförening inledning 4 §, artikel 1, artikel 2-d och artikel 7; Fördraget om Europeiska unionens funktionssätt artikel 20-1 = ulkomaalaislaki 6 § 1 mom., 37 § 1 mom., 39 §, 47 § 5 mom. ja 66a §; Neuvoston direktiivi 2003/86/EY oikeudesta perheenyhdistämiseen johdanto 4 kohta, 1 artikla, 2 artikla d kohta ja 7 artikla; Sopimus Euroopan unionin toiminnasta 20 artikla 1 kohta. ECHR-8; CRC-3-1; Articles 7 and 24-2 of the Charter of Fundamental Rights of the European Union Abstract L, a national of Algeria, had permanent residence permit in Finland since 2003, following her marriage to a Finnish national.The spouses divorced in 2004.L had sole custody of their child who had dual Finnish and Algerian nationality.In 2006, L married an Algerian national who had resided in Finland as an asylum seeker from March to October 2006 when he was returned to Algeria.Their child, born in 2007, had Algerian nationality.L applied for her spouse to be granted residence permit in Finland on the basis of family reunification.The application was rejected by the Immigration Service.The Aliens Act requires that the applicant of a residence permit has secure means of subsistence.L's means of subsistence came from subsistence support and other benefits and her husband did not have employment in Finland.On L's appeal, the administrative court found that an exception could be made to the subsistence requirement in this case, on grounds of the best interests of children.The nuclear family was in Finland, and it would be unreasonable to expect the elder child to move to Algeria.The Immigration Service appealed against the decision to the Supreme Administrative Court. Having requested a preliminary ruling of the Court of Justice of the European Union (C-357/11, 6 December 2012) on the interpretation of Article 20 TFEU (citizenship of the EU), the Supreme Administrative Court concluded that the decision to refuse the husband's residence permit did not prevent L from continuing her lawful residence in Finland with her children.Also, the refusal to grant a residence permit did not have the immediate effect of denying the elder child the genuine enjoyment of the rights conferred by the child's status as an EU citizen.There was no relationship of financial or other dependency between the elder child and L's husband.Considering, e.g., the children's age (9 and 6), their knowledge of Arabic, and the fact that a possible move to Algeria does not prevent the elder child's contacts with the biological father, the best interests of the child did not demand that an exception is made to the subsistence requirement. In considering the possible exception to the subsistence requirement, the Supreme Administrative Court also took into account the case law of the European Court of Human Rights, namely the cases of Rodriguez da Silva and Hoogkamer v. the Netherlands (judgment of 31 January 2006), Konstatinov v. the Netherlands (judgment of 26 April 2007) and Darren Omoregie and Others v.Norway (judgment of 31 July 2008).The court also referred to its own earlier decisions of KHO 2010:17 and KHO 2010:18 (25 March 2010). 23.10.2013 / 30.10.2013 / RHANSKI
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Date when decision was rendered: 5.7.2013 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report no. 2064; H13/1327 Reference to source HelHO 2013:4. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
paternity,
best interests of the child,
rights of the child,
Relevant legal provisions sections 51 and 52-1 of the Paternity Act; section 8 of the Act on Assisted Fertility Treatments = lag om faderskap 51 § och 52 § 1 mom.; lag om assisterad befruktning 8 § = isyyslaki 51 § ja 52 § 1 mom.; laki hedelmöityshoidoista 8 §. CRC-2; CRC-3: CRC-7 Abstract A surrogate mother in India had given birth to a child born from the gametes of a Finnish married couple.On the birth certificate issued by the relevant authority in India, the Finnish couple were named as the child's parents.In accordance with the Paternity Act, X asked the Helsinki court of appeal to confirm that the birth certificate is a decision on paternity and is recognized in Finland.According to the Paternity Act, the recognition of a decision on paternity issued in a foreign state may be refused, among other grounds, if it results in an outcome that is incompatible with the Finnish public policy.The Act on Assisted Fertility Treatments prohibits the provision of assisted fertility treatment if there is reason to believe that the child will be given up for adoption.On the basis of the provision, surrogacy is thus not legal in Finland. The court of appeal noted that although commercial surrogacy as such is legal in India, there is no legislation in force on surrogacy arrangements, which would explicitly regulate the legal status of the child and the rights and duties of the persons involved.The lack of specific legislation essentially increases the risk that the arrangement is not satisfactory from the point of view of the child or the parties involved.In the court's opinion, it was obvious that X and his spouse had used the surrogacy arrangement in India in order to circumvent the Finnish law.The court referred to Article 2 of the CRC, according to which states shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the activities of the child's parents.Therefore, the court found that in making a decision on the child's legal status, the actions and motives of X and his spouse were not of essential importance. In the court's opinion, the appropriateness of a decision on paternity issued in India and the commercial surrogacy arrangement preceding the decision were in many ways questionable from the perspective of the Finnish legal system.However, the court did not find anything that would indicate that the health of the surrogate mother or the child would have been in danger or that their human dignity would have been violated.Refusing the recognition would in this case lead into an unsustainable situation for the child, when the surrogate mother, her spouse and the Indian authorities all regarded X and his spouse as the child's parents.Besides all other negative consequences, the child would be stateless, which is something explicitly to be avoided under Article 7 of the CRC.Considering also Article 3 of the CRC, according to which in all actions concerning children undertaken by courts of law, the best interests of the child shall be a primary consideration, the court of appeal concluded that there was no reasonable cause to find the decision issued in India as being incompatible with the Finnish public policy as prescribed in the Paternity Act.The court confirmed that the birth certificate was a decision on paternity issued in a foreign state and recognized in Finland. 3.10.2014 / 3.10.2014 / RHANSKI
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Date when decision was rendered: 22.6.2015 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 1743; 3727/1/13 Reference to source KHO 2015:100. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
aliens,
asylum,
refusal of entry,
inhuman treatment or punishment,
best interests of the child,
Relevant legal provisions section 147 of the Aliens Act; section 9-4 of the Constitution Act; Council Regulation 343/2003/EC establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II Regulation). = utlänningslag 147 §; grundlagen 9 § 4 mom.; Rådets förordning 343/2003/EG om kriterier och mekanismer för att avgöra vilken medlemsstat som har ansvaret för att pröva en asylansökan som en medborgare i tredje land har gett in i någon medlemsstat (Dublin II -förordningen). = ulkomaalaislaki 147 §; perustuslaki 9 § 4 mom.; Neuvoston asetus 343/2003/EY niiden perusteiden ja menettelyjen vahvistamisesta, joiden mukaisesti määritellään kolmannen maan kansalaisen johonkin jäsenvaltioon jättämän turvapaikkahakemuksen käsittelystä vastuussa oleva jäsenvaltio (Dublin II -asetus). ECHR-3; Articles 4, 18 and 19-2 of the Charter of Fundamental Rights of the European Union Abstract A and her child B had applied for asylum in Finland.A was a Nigerian citizen and had arrived in Italy in 2005.B had been born in Italy in 2012.Since 2012 both A and B had a long-term residence permit for third-country nationals in Italy.A claimed that the reception conditions for asylum seekers in Italy did not correspond to the EU minimum standards.She referred to economic problems and felt she and her child had no future in Italy.She also claimed she had been a victim of human trafficking in Morocco before coming to Italy.The Finnish Immigration Service rejected the asylum application and decided that A and B are transferred back to Italy.According to the Dublin II Regulation, Italy was the country responsible for examining the application.The Supreme Administrative Court assessed the question whether Finland should assume the examination of the application by applying the derogation in Article 3(2) of the Dublin II Regulation.The court also examined whether the applicant's deportation to Italy was against the principle of non-refoulement as prescribed in Article 3 of the ECHR, Article 4 of the EU Charter of Fundamental Rights and section 147 of the Aliens Act, taking also into account the best interests of the child. With reference to a UNHCR report on refugee protection in Italy (2013), among other sources, the Supreme Administrative Court found that there were no systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum applicants in Italy which would provide substantial grounds for believing that the applicant would face a real risk of being subjected to inhuman or degrading treatment, within the meaning of Article 4 of the EU Charter of Fundamental Rights.In the court's view, this finding was supported by the decision of the European Court of Human Rights in the case of Tarakhel v.Switzerland (judgment of 4 November 2014, Reports of Judgments and Decisions 2014) in which the human rights court found that the reception arrangements in Italy cannot in themselves act as a bar to all removals of asylum seekers to Italy, despite doubts as to the capacity of the system.Furthermore, the EU Commission had not initiated proceedings against Italy for failure to fulfill its obligations under the relevant EU directives on minimum standards (2003/9/EC, 2004/83/EC and 2005/85/EC).The Supreme Administrative Court concluded that there were no grounds pertaining to the asylum procedure and the conditions for the reception of asylum applicants in Italy that would prevent it that A and B are returned to Italy. Regarding the applicant's individual circumstances, the court noted that both the mother and the child were in good health and the child had been duly cared for.The alleged human trafficking had taken place in Morocco several years before A's arrival in Italy.Both A and B had long-term residence permits in Italy by which they were guaranteed more extensive fundamental rights as compared to the rights of asylum seekers.Their situation was thus not comparable to that of asylum seekers entering the EU for the first time.The court concluded that there was nothing to indicate that because of the applicant's individual circumstances, transferring A and B back to Italy would mean they would be likely to be subjected to inhuman or degrading treatment or the risk thereof, or that their deportation would be against the best interests of the child.The court concluded that in this case Article 3 of the ECHR or section 147 of the Aliens Act did not prevent deportation and that there were no grounds to apply the derogation prescribed in section 3(2) of the Dublin II Regulation. 11.12.2015 / 26.10.2017 / RHANSKI
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Date when decision was rendered: 26.2.2015 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 537; 2844/3/13 Reference to source KHO 2015:26. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
aliens,
asylum,
family reunification,
best interests of the child,
Relevant legal provisions sections 6-3, 38 and 69a of the Aliens Act = utlänningslag 6 § 3 mom., 38 § och 69a § = ulkomaalaislaki 6 § 3 mom., 38 § ja 69a §. ECHR-8; CRC-3-1: CRC-7-1: CRC-10 Abstract X had arrived in Finland as an unaccompanied minor asylum seeker and had been issued with a residence permit on the basis of subsidiary protection in December 2010.In June 2011, X had submitted applications for a residence permit on the basis of family ties on behalf of his father, mother and two siblings.While the applications were pending, X turned 18 and reached the age of majority in February 2012.According to section 38-1 of the Aliens Act, issuing a residence permit to a family member of a minor sponsor requires that the sponsor is a minor on the date when the family member's residence permit application is decided.Also, according to the Aliens Act, a decision on an application for a residence permit made on the basis of family ties must as a rule be served on the applicant no later than nine months after the filing of the application (section 69a).Matters concerning minors shall be processed with urgency (section 6-3).The Finnish Immigration Service rejected the applications in July 2012, some 13 months after the applications had been filed.It pointed out that X had turned 18 in less than nine months after the applications had been filed.By the time the decision was taken, X was no longer a minor and his parents could not be regarded as family members as prescribed in the Aliens Act.X appealed to the administrative court which upheld the decision of the Immigration Service.The court found that, because of the time needed for interviews and other clarifications required in the process, the decision could in any case not have been made before X turned 18.X appealed further to the Supreme Administrative Court which noted that section 38-1 of the Aliens Act cannot be applied in the way that it had been applied in this case by the Immigration Service.Namely, according to section 38-2, a residence permit cannot be denied if the processing of the application has been significantly delayed for reasons beyond the applicant's control and the applicant or the sponsor have contributed to the investigation of the matter.In this case, the Immigration Service had denied residence permits on the grounds that the sponsor was no longer a minor, without taking into account section 38-2 and without assessing the reasons why the processing of the applications had been delayed.The Supreme Administrative Court quashed the decisions of the Immigration Service and the administative court and returned the matter to the Immigration Service. 10.2.2016 / 10.2.2016 / RHANSKI
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Date when decision was rendered: 4.2.2013 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 414; 139/1/11 Reference to source KHO 2013:23. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
aliens,
asylum,
residence permit,
refusal of entry,
children,
best interests of the child,
Relevant legal provisions sections 6-1, 52-1, 87-1, 88-1 and 88a-1 of the Aliens Act = utlänningslag 6 § 1 mom., 52 § 1 mom., 87 § 1 mom., 88 § 1 mom. och 88a § 1 mom. = ulkomaalaislaki 6 § 1 mom., 52 § 1 mom., 87 § 1 mom., 88 § 1 mom. ja 88a § 1 mom. ECHR-3; CRC Abstract A had applied for a residence permit in Finland for herself and her three minor children on the basis of humanitarian protection.A was a Somali citizen and allegedly came from Mogadishu.As grounds for her application she referred to the poor security situation in Somalia and to various violations of her rights that had taken place in Mogadishu.The Finnish Immigration Service found that A had not presented any evidence to show that she would face a real risk of being subjected to persecution or serious harm in her home country.The Immigration Service was not convinced by A's account of the alleged violations and of her place of origin.The results of a language analysis showed that A clearly came from northern Somalia (Somaliland), not southern Somalia.The Immigration Service dismissed A's application and refused her entry into the country.The administrative court upheld the decision. In her appeal to the Supreme Administrative Court, A, among other things, questioned the reliability of the language analysis.The Supreme Administrative Court noted there was no credible proof as to A's place of origin and therefore there were good grounds for carrying out the language analysis.The results of the language analysis were reliable but did not prove A's place of origin with full certainty.Therefore, in addition to the language analysis, other evidence had to be taken into account.Based on the evidence presented in the case, the court noted that A's knowledge of her alleged place of origin, Mogadishu, was very weak.Her account of the places where she had lived was contradictory.The court found there were sufficient grounds to conclude that A was not from Mogadishu but from Somaliland.The Supreme Administrative Court did not find it plausible that A would have had substantial grounds for believing that she would be persecuted in her home country.The court admitted that there were deficiences in the protection of human rights in Somaliland, but the situation in Somaliland was reported as stable.Access to services providing for basic needs of children was limited.However, basic health care and education were available.The Somaliland government had made a commitment of the CRC and had made an effort to align its laws and policies to the international standards established in the CRC.The Supreme Administrative Court also noted that A was not a single parent: she had her husband and four other children in Somalia.In the court's opinion no grounds had been shown for believing that A and her three children would face a risk of being subjected to inhuman treatment in their home country.A's and her children's health, their ties to Finland or the best interests of the children did not in this case require that A and the children are issued a residence permit on compassionate grounds.The court concluded that A and her children were not in need of international protection and could be refused entry into Finland. 18.2.2016 / 2.3.2017 / RHANSKI
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