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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: 10.5.2013 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 1634; 2969/1/10 Reference to source KHO 2013:88. Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministy 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,
freedom of movement,
citizenship (EU),
Relevant legal provisions sections 153-2, 156-1, 156-2, 158a-1, 159-1, 159-2, 159a, 161f-2, 167 and 168-1 of the Aliens Act; section 9 of the Constitution Act; Article 20, 21-1, 45-1 and 45-3 of the Treaty on the Functioning of the European Union; Article 1, 5-1, 7-1, 8, 14-1, 14-4, 15, 27 and 28 of the directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union to move and reside freely within the territory of the Member States = utlänningslag 153 § 2 mom., 156 § 1 och 2 mom., 158a § 1 mom., 159 § 1 och 2 mom., 159a §, 161f § 2 mom., 167 § och 168 § 1 mom.; grundlagen 9 § 1 mom.; Fördraget om Europeiska unionens funktionssätt artikel 20, artikel 21-1, artikel 45-1 och artikel 45-3; Europaparlamentets och rådets direktiv 2004/38/EG om unionsmedborgares och deras familjemedlemmars rätt att fritt röra sig och uppehålla sig inom medlemsstaternas territorier artikel 1, artikel 5-1, artikel 7-1, artikel 8, artikel 14-1, artikel 14-4, artikel 15, artikel 27 och artikel 28 = ulkomaalaislaki 153 § 2 mom., 156 § 1 ja 2 mom, 158a§ 1 mom., 159 § 1 ja 2 mom., 159a §, 161f § 2 mom., 167 § ja 168 § 1 mom.; perustuslaki 9 § 1 mom.; Sopimus Euroopan unionin toiminnasta 20 artikla, 21 artikla 1 kohta ja 45 artikla 1 ja 3 kohta; Euroopan parlamentin ja neuvoston direktiivi (2004/38/EY) Euroopan unionin kansalaisten ja heidän perheenjäsentensä oikeudesta liikkua ja oleskella vapaasti jäsenvaltioiden alueella 1 artikla, 5 artikla 1 kohta, 7 artikla 1 kohta, 8 artikla, 14 artikla 2 ja 4 kohta, 15 artikla, 27 artikla ja 28 artikla. Article 45-1 of the Charter of Fundamental Rights of the European Union Abstract X, an EU citizen, had been residing in Finland since 2007.In 2009, he submitted to the police an application for registering his right of residence.The police rejected the application on the grounds that X had repeatedly endangered public order and security during his stay in Finland.The administrative court rejected X's appeal, and he appealed further to the Supreme Administrative Court. The Supreme Administrative Court noted that, based on the founding Treaties of the European Union, EU citizens have the right to move and reside freely in the territory of other EU Member States.In accordance with directive 2004/38/EC, the host Member State may require EU citizens to register their right of residence for periods of residence longer than three months.The court held that registration is not compulsory under EU law: it is a supervisory measure and does not form the basis of lawful residence.In the court's view, registration is meant to be a swift administrative measure.The proof required to show that the applicant meets the requirements of registration are specified in section 159a of the Aliens Act, pursuant to directive 2004/38/EC.The relevant provisions in the Aliens Act concerning registration do not explicitly provide that registration could be denied on grounds of public order or security. The court found that apart from the considering of the proof required in connection with registation, the registration procedure is not, as a rule, to assess the conditions on the right of an EU citizen to reside in the country.The court continued by stating that if an EU citizen fails to meet the requirements for the right of residence on grounds of public order or security, the matter should be addressed by means of a decision on refusal of entry or deportation.That procedure includes all the normal guarantees of due process.Also, if it is concerning an EU citizens whose period of residence has exceeded three months, the decision on refusal of entry or deportation is made by the Immigration Service (not the police).In making that decision, it is also possible to decide not to issue a registration certificate.The court concluded that in X's case, no measures had been taken for refusal of entry or deportation.X's being a danger to public order or security had only been referred to as grounds for the decision not to register his right of residence.The court returned the case to the police for a new consideration of the registration issue. 30.10.2013 / 30.10.2013 / RHANSKI
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Date when decision was rendered: 20.5.2016 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Reports no. 3108/1/14 and 3109/1/14; 2234 Reference to source KHO 2016:75. 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,
children,
best interests of the child,
citizenship (EU),
deportation,
social assistance,
Relevant legal provisions sections 6(1), 158a(1), 160, 161f(2), 161g(1), 168(1), 168(4) and 168b of the Aliens Act; Articles 6, 7, 14, 16 and 28 of Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States; Article 20 of the Treaty on the Functioning of the European Union = utlänningslag 6 § 1 mom., 158a § 1 mom., 160 §, 161f § 2 mom., 161g § 1 mom., 168 § 1 och 4 mom., 168a § och 168b §; Europaparlamentets or rådets direktiv 2004/38/EG om unionsmedborgares och deras familjemedlemmars rätt att fritt röra sig och uppehålla sig inom medlemsstaternas territorier artikel 6, 7, 14, 16 och 28; Fördraget om Europeiska unionens funktionssätt artikel 20 = ulkomaalaislaki 6 § 1 mom., 158a § 1 mom., 160 §, 161f § 2 mom., 161g § 2 mom., 168 § 1 ja 4 mom., 168a § ja 168b §; Euroopan parlamentin ja neuvoston direktiivi 2004/38/EY Euroopan unionin kansalaisten ja heidän perheenjäsentensä oikeudesta liikkua ja oleskella vapaasti jäsenvaltion alueella artikla 6, 7, 14, 16 ja 28; Sopimus Euroopan unionin toiminnasta artikla 20. ECHR-8; CRC-3-1; Article 24 of the Charter of Fundamental Rights of the European Union Abstract A and B and their four minor children, who were all German citizens, had arrived in Finland in March 2011.The couple and one of their children had registered their right of residence in Finland.At the start A had worked but her employer had not continued the employment contract after a trial period of two months.Since July 2011 A been unable to work as a result of health problems.B had been unemployed during the whole period of his residence in Finland.Both A and B had said they were taking Open University courses.However, studying was not the main purpose of their stay in Finland and the courses were not related to their previous employment.Since June 2011 the family had resorted to various social benefits, including social assistance which is the last-resort form of income security.The main issue in this case was whether the couple and their children could be deported to Germany, considering that they were all EU citizens.The Supreme Administrative Court based its decision on the Aliens Act, taking also into account the Free Movement Directive 2004/38/EC, the right to free movement of EU citizens under the TFEU, the case law of the CJEU (C-456/02 Trojani; C-408/03 Commission v Belgium; C-140/12 Brey; C-333/13 Dano; C-67/14 Alimanovic) and also the case law of the European Court of Human Rights (Rodriguez da Silva and Hoogkamer v the Netherlands, judgment of 31 January 2006; and Konstatinov v. the Netherlands, judgment of 26 April 2007). The Supreme Administrative Court first considered the applicants' status and whether that status prevented their deportation unless it was on grounds of public order or security or public health.The court noted that the applicants were not employed or self-employed persons, or persons seeking employment in Finland.After her short employment A had not retained her status as an employed person, because her incapacity to work was not temporary, she had not become unemployed involuntarily and the Open University courses she had taken were not relating to vocational training.Neither A nor B had shown they would have a genuine chance of being employed.By the time the Immigration Service made the decision on deportation in 2013, neither applicant had gained the right of permanent residence and neither had resided in Finland legally for the previous 10 years.Consequently, deportation was possible also on other grounds than public order or security or public health. According to the Aliens Act, EU citizens and their family members may be deported if they fail to meet the requirements for the right to residence laid down in the Aliens Act or if they are considered a danger to public order or security or to public health.It is required in the Aliens Act that economically inactive EU citizens who wish to reside in Finland for more than three months shall have for themselves and their family members sufficient funds, and, if necessary, health insurance so that, during their time of residence, they do not become a burden on Finland's social security system by resorting repeatedly to social assistance or other comparable benefits.The court also noted that in the case of Konstatinov v the Netherlands, the European Court of Human Rights had not considered unreasonable a requirement that an alien having achieved a settled status in a host state and who seeks family reunion there must demonstrate that he/she has sufficient independent and lasting income, not being welfare benefits, to provide for the basic costs of subsistence of his or her family members with whom reunion is sought. In this case, the family had resorted to social assistance immediately after their arrival in Finland and had continued to do so on a regular basis.This was not a case of temporary difficulties.It had not been established that the couple would have had any other income than A's salary for two monts' work in 2011.The court concluded that the applicants could be considered to be a burden on the social assistance system, as prescribed in the Aliens Act.It is overall consideration of the case the court also took into account the duration of the applicants' residence in Finland, their age, state of health, family situation, their integration in the country and the best interests of the child.The court concluded that the arguments for deportation weighed more than those against.It upheld the decision on deportation made by the Immigration Service. 3.5.2017 / 3.5.2017 / RHANSKI
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Date when decision was rendered: 19.3.2019 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. H2019/8; 443 Reference to source KKO 2019:26. Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta domstolens beslut inom FINLEX_databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
extradition,
inhuman treatment or punishment,
citizenship (EU),
Relevant legal provisions Extradition Act; section 9-4 of the Constitution Act; Articles 18 and 21 of the Treaty on the Functioning of the European Union = lag om utlämning för brott; grundlagen 9 § 4 mom.; Fördraget om Europeiska unionens funktionssätt artikel 18 och artikel 21 = laki rikoksen johdosta tapahtuvasta luovuttamisesta; perustuslaki 9 § 4 mom.; Sopimus Euroopan unionin toiminnasta artikla 18 ja artikla 21. ECHR-3; Article 19 of the Charter of Fundamental Rights of the European Union Abstract X, who was a citizen of Lithuania, had been sentenced in Turkey in 2013 to a prison sentence of 10 years.X escaped from prison in 2016.Turkey had submitted a request to Finland for X's extradition for the enforcement of his sentence.The Ministry of Justice requested the opinion of the Supreme Court on whether it was possible to consent to the request for extradition. The Supreme Court found that there were no impediments to extradition as provided for in the Extradition Act.The court then noted that an EU citizen, whose extradition has been requested outside the EU, must be treated in the same way as Finnish nationals if that EU citizen is deemed to reside permanently in Finland.Section 2 of the Extradition Act prohibits the extradition of Finnish citizens.X had told that he lived in Lithuania and was visiting Finland only, for work reasons.The court found that X's status as an EU citizen did not in this case prevent his extradition to Turkey, nor did it require the Finnish authorities to find out whether X could serve his sentence in Lithuania. X had objected to the extradition on grounds that he would be subjected to inhuman treatment because of the prison conditions in Turkey.The Supreme Court considered the prohibition of torture and the principle of non-refoulement, as provided for in the EU Charter of Fundamental Rights (Article 19), ECHR (Article 3) and the Constitution Act (section 9-4).The Supreme Court referred to the judgment of the CJEU in the case of Petruhhin (C-182/15), in which the CJEU held that a Member State must verify that the extradition of an EU citizen to a non-EU country for the enforcement of a sentence will not prejudice the rights referred to in Article 19 of the Charter of Fundamental Rights.Also, the existence of declarations and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the ECHR (European Court of Human Rights, Saadi v.Italy, judgment of 28 February 2008). The Supreme Court noted that the findings of the European Committee against Torture, reported in 2015 (CPT/Inf (2015) 6), confirmed that the conditions especially in older Turkish prisons can be inhumane.The Ministry of Justice had asked the Turkish authorities for additional information concerning the length of the remaining period of X's prison sentence and the conditions in the prison in which X was to serve his sentence.By the time of the Supreme Court's decision there had been no response from the Turkish authorities.In the court's opinion, X's humane treatment could not be guaranteed by the fact that Turkey was a state party to the ECHR or by assurances given by the Turkish authorities in the request for extradition that they would abide by the provisions of the ECHR.The report of the European Committee against Torture shows that there is a real risk that X is placed in a prison where the conditions amount to ill-treatment contrary to Article 19 of the Charter of Fundamental Rights and Article 3 of the ECHR.The Turkish authorities had not submitted any additional information to prove otherwise.The Supreme Court concluded that the request for the extradition of X may not be granted because the extradition would be contrary to Article 19 of the Charter, Article 3 of the ECHR and section 9-4 of the Constitution Act. 9.5.2019 / 9.5.2019 / RHANSKI
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