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,
barn, barnets bästa, respekt för privatliv, respekt för familjeliv, familjeåterförening,
lapset, lapsen etu, yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, perheen yhdistäminen,

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

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,
respekt för privatliv, respekt för familjeliv, utlänningar, barnets bästa, familjeåterförening, uppehållstillstånd,
yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, ulkomaalaiset, lapsen etu, perheen yhdistäminen, oleskelulupa,

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

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,
utlänningar, barn, barnets bästa, familjeåterförening,
ulkomaalaiset, lapset, lapsen etu, perheen yhdistäminen,

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

Date when decision was rendered: 5.9.2003

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report No. 2034; 2040/3/02

Reference to source

KHO 2003:58.

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. 173-179

Subject

respect for family life, family reunification, aliens, residence permit,
respekt för familjeliv, familjeåterförening, utlänningar, uppehållstillstånd,
perhe-elämän kunnioittaminen, perheen yhdistäminen, ulkomaalaiset, oleskelulupa,

Relevant legal provisions

Sections 18b and 18c of the Aliens Act; section 10-1 of the Constitution Act

= utlänningslag 18b § och 18c §; grundlagen 10 § 1 mom.

= ulkomaalaislaki 18b § ja 18c §; perustuslaki 10 § 1 mom.

ECHR-8; general references to the CCPR, CESCR, CRC and UDHR

Abstract

A had been issued a residence permit in Finland on the basis of need of protection.On A's application, the Directorate of Immigration had granted A's parents B and C residence permits on the basis of a family tie, but had rejected the application for residence permits submitted on behalf of A's brothers X and Y and sister Z.When A submitted the applications, both A, the brothers and sister were minors, but by the time the Directorate of Immigration made its decision, they had all reached the age of majority (in Finland 18 years).A appealed to the administrative court which decided the case on the basis of the Aliens Act.Section 18b of the Aliens Act defines a "family member" as a spouse, an unmarried child of under 18 years of age and, in case of a minor, his or her guardian.According to section 18c, a family member of an alien residing in Finland with a residence permit issued on the basis of refuge or need of protection shall be issued a residence permit unless there are reasons relating to public order or safety or other weighty reasons against it.X, Y and Z were not A's family members as defined in the Aliens Act.When the parents were granted their residence permits, X, Y and Z had already reached the age of 18 years.Another relative than a family member may be issued a residence permit only on grounds specified in section 18c-3 of the Act.With reference to section 18c-3, the administrative court concluded that refusing a residence permit would not be unreasonable as it could not be considered that the persons in question intended to continue their earlier close family life in Finland or that X, Y and Z would be fully dependent on a person residing in Finland.The decision of the Directorate of Immigration was not amended.The Supreme Administrative Court rejected A's appeal.In the appeal, A referred to Article 8 of the ECHR and generally to the UDHR, CCPR, CESCR and CRC.The Supreme Administrative Court does not discuss these human rights instruments in its decision.

21.4.2004 / 3.7.2009 / RHANSKI

Date when decision was rendered: 3.11.2003

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report No. 2677; 2827/3/02

Reference to source

KHO 2003:75.

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. 303-313

Subject

respect for family life, family reunification, aliens,
respekt för familjeliv, familjeåterförening, utlänningar,
perhe-elämän kunnioittaminen, perheen yhdistäminen, ulkomaalaiset,

Relevant legal provisions

Sections 1c-1, 18b-1 and 18c-1 of the Aliens Act

= utlänningslag 1c § 1 mom., 18b § 1 mom. och 18c § 1 mom.

= ulkomaalaislaki 1c § 1 mom., 18b § 1 mom. ja 18c § 1 mom.

ECHR-8; CRC-3-1; CRC-7-1; CRC-10

Abstract

C had come to Finland from Turkey in 1991.He married a Finn and obtained a permanent residence permit in 1996.He acquired Finnish citizenship in 1999.While C was in Finland his children from a previous relationship were in the care of his relatives in Turkey.In 2000, C applied for residence permit on behalf of his children on the basis of a family tie but the Directorate of Immigration and the administrative court rejected the application.When the case reached the Supreme Administrative Court, the application only concerned two of the children who were minors.The Supreme Administrative Court based its decision on the Aliens Act, the ECHR and the CRC.It also referred to the decision of the European Court of Human Rights in the case of P.R. v. the Netherlands (decision of 7 November 2000, inadmissible).The Court noted that C had been issued a residence permit on the basis of his marriage, not on the basis of refuge or need of protection.He had resided in Finland for several years but had not previously tried to lead a family life with his children in Finland.In the Court's view, C's separation from his children was based on his voluntary and conscious choice.In addition, the children's family ties and cultural ties were entirely concentrated in Turkey.C had been sending money on a regular basis to Turkey for the subsistence of the children.He had visited the children in Turkey twice and had kept in contact with them by correspondence and telephone.However, the Supreme Administrative Court found that this did not show that there was genuine and close family life between C and the children, as intended under Article 8 of the ECHR.With reference to the fact that the ECHR does not guarantee an immigrant the right to choose the most suitable place to lead family life, the Court concluded that there were weighty reasons against issuing the residence permits and rejected A's appeal.One member of the Supreme Administrative Court would have allowed the application on behalf of one child who had not reached the age of majority before the Court's decision.This member of the Court also referred to the ECHR and the CRC.

21.4.2004 / 3.7.2009 / RHANSKI

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,
respekt för familjeliv, barnets bästa, familjeåterförening, utlänningar, uppehållstillstånd,
perhe-elämän kunnioittaminen, lapsen etu, perheen yhdistäminen, ulkomaalaiset, oleskelulupa,

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

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,
utlänningar, respekt för familjeliv, familjeåterförening, barn, barnets rättigheter, barnets bästa,
ulkomaalaiset, perhe-elämän kunnioittaminen, perheen yhdistäminen, lapset, lapsen oikeudet, lapsen etu,

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

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,
utlänningar, respekt för familjeliv, familjeåterförening, barn, barnets rättigheter, barnets bästa,
ulkomaalaiset, perhe-elämän kunnioittaminen, perheen yhdistäminen, lapset, lapsen oikeudet, lapsen etu,

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

Date when decision was rendered: 12.7.2007

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 1830; 2752/3/06

Reference to source

KHO 2007:48.

Yearbook of the Supreme Administrative Court 2007 July-December

Högsta förvaltningsdomstolens årsbok 2007 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2007 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 141-174

Subject

aliens, residence permit, family reunification, public access to documents, national security, effective remedy,
utlänningar, uppehållstillstånd, familjeåterförening, allmänna handlingars offentlighet, nationell säkerhet, effektiva rättsmedel,
ulkomaalaiset, oleskelulupa, perheen yhdistäminen, asiakirjojen julkisuus, kansallinen turvallisuus, tehokas oikeussuojakeino,

Relevant legal provisions

sections 11-1, 11-2 and 24-1-9 of the Act on the Openness of Government Activities; sections 31 and 45 of the Administrative Procedure Act; section 21 of the Constitution Act

= lag om offentlighet i myndigheternas verksamhet 11 § 1 mom. och 2 mom. och 24 § 1 mom. 9 punkten; förvaltningslag 31 § och 45 §; grundlagen 21 §

= laki viranomaistoiminnan julkisuudesta 11 § 1 ja 2 mom. ja 24 § 1 mom. 9 kohta; hallintolaki 31 § ja 45 §; perustuslaki 21 §.

ECHR-8; ECHR-13

Abstract

The Finnish Immigration Service had rejected X's application for a residence permit on the basis of a family tie.As grounds for its decision the Immigration Service stated that the Security Police was not in favour of granting X a residence permit.On X's appeal, the administrative court ruled that the Immigration Service could not reject X's application with reference solely to the opinion of the Security Police.In the court's view, the matter had not been appropriately clarified and the Immigration Service had failed to state adequate reasons for its decision.The court referred the matter back to the Immigration Service which then appealed to the Supreme Administrative Court.

The Supreme Administrative Court discussed at length the jurisprudence of the European Court of Human Rights, referring to the cases of Chahal v. the United Kingdom (judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V); Al-Nashif v.Bulgaria (judgment of 20 June 2002); Brinks v. the Netherlands (decision of 5 April 2005); Segerstedt-Wiberg and Others v.Sweden (judgment of 6 June 2006, Reports of Judgments and Decisions 2006-VII); Lupsa v.Romania (jugdment of 8 June 2006, Reports of Judgments and Decisions 2006-VII); Kaya v.Romania (judgment of 12 October 2006); and Jasper v. the United Kingdom (judgment of 16 February 2000).The Supreme Administrative Court found that it is apparent from the case law of the human rights court that confidential material which is not disclosed to a party on national security grounds is not as such in violation of the ECHR.However, in such a case a competent court must have the opportunity to review the material in order to assess whether it can be deemed confidential and whether there are sufficient grounds to the conclusions drawn on the basis of the material which the party has not had access to.The Court continued that, in order to meet the requirements for effective remedy stipulated in Article 13 of the ECHR and section 21 of the Constitution Act, an administrative court has a duty to consider whether there is a just balance between individual rights on the one hand and public order and national security on the other.The Court then ruled that, in view of the exceptions to the parties' right of access to documents, as laid down by law, and the duty of authorities to clarify a matter and to state reasons for their decisions in cases in which national security is involved, the administrative court should not have referred the matter back to the Immigration Service.Instead, it should have reviewed the confidential material in order to assess whether there were sufficient grounds to deny X's residence permit with reference to reasons of public interest, public safety and national security.In order to avoid any further delay, the Supreme Administrative Court did not return the case to the administrative court, but considered X's appeal instead.It heard the representatives of the Security Police in a closed oral hearing and concluded that the material upon which the opinion of the Security Police was based could be classified as secret documents to which a party had no right of access under the Act on the Openness of Government Activities.The Court found that the reasons presented by the Security Police were as such worth noticing.However, in the Court's view, the reasons were not weighty enough for denying X a residence permit when the right to the protection of family life was balanced against the security interests of the state in this case.The Court quashed the decisions of the administrative court and the Immigration Service and referred the matter back to the Immigration Service.

12.5.2010 / 28.3.2011 / RHANSKI

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,
utlänningar, respekt för familjeliv, familjeåterförening, barn, barnets bästa,
ulkomaalaiset, perhe-elämän kunnioittaminen, perheen yhdistäminen, lapset, lapsen etu,

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

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,
utlänningar, respekt för familjeliv, familjeåterförening, handikappade, barn, barnets bästa,
ulkomaalaiset, perhe-elämän kunnioittaminen, perheen yhdistäminen, vammaiset, lapset, lapsen etu,

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

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),
utlänningar, uppehållstillstånd, respekt för familjeliv, familjeåterförening, barn, barnets bästa, medborgarskap (EU),
ulkomaalaiset, oleskelulupa, perhe-elämän kunnioittaminen, perheen yhdistäminen, lapset, lapsen etu, kansalaisuus (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

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,
utlänningar, asyl, familjeåterförening, barnets bästa,
ulkomaalaiset, turvapaikka, perheen yhdistäminen, lapsen etu,

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

Date when decision was rendered: 6.2.2014

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 289; 906/3/13

Reference to source

KHO 2014:22.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databas 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, family reunification, passport,
utlänningar, uppehållstillstånd, familjeåterförening, pass,
ulkomaalaiset, oleskelulupa, perheen yhdistäminen, passi,

Relevant legal provisions

sections 5, 7-2, 11-1-1, 13-1, 14-1, 35 and 50-1 of the Aliens Act

= utlänningslag 5 §, 7 § 2 mom., 11 § 1 mom. 1 punkten, 13 § 1 mom., 14 § 1 mom., 35 § och 50 § 1 mom.

= ulkomaalaislaki 5 §, 7 § 2 mom., 11 § 1 mom. 1 kohta, 13 § 1 mom., 14 § 1 mom., 35 § ja 50 § 1 mom.

ECHR-8

Abstract

B, who was a Somali citizen, had married A, a Finnish citizen, in Kenya in 2011.B then applied for a residence permit in Finland on the basis of family ties.According to section 35 of the Aliens Act, a requirement for issuing a residence permit is that the applicant has a valid travel document.Exceptions to this rule are possible in cases explicitly listed in section 35.B had a Somali passport.However, Finland does not accept travel documents issued by Somalia.The Immigration Service rejected B's application, on the grounds that B had not presented a valid travel document and no grounds had been brought forth for making an exception to the travel document requirement.The administrative court upheld the decision of the Immigration Service.

The Supreme Administrative Court noted that in the practice of public authorities section 35 of the Aliens Act has not been applied to the effect that exceptions could be made only in cases explicitly listed in section 35.The court found that it was apparent from the statements and guidelines of the Immigration Service that in addition to the exceptions listed in section 35, the Immigration Service was considering the possibility of making other exceptions in individual cases, particularly on the basis of Article 8 of the ECHR and the right to protection of family life.The court also referred to the case law of the European Court of Human Rights which has emphasised that in the context of both positive and negative obligations the state must strike a fair balance between the competing interests of the individual and of the community as a whole (Rodriques da Silva and Hoogkamer v the Netherlands, judgment of 31 January 2006).In the case of Hode and Abdi v the United Kingdom (judgment of 6 November 2012) concerning family reunion, the European Court of Human Rights found no justification for treating refugees who married post-flight differently from those who married pre-flight.

The Supreme Administrative Court continued by noting that under section 50 of the Aliens Act, family members of a Finnish citizen have a right to obtain a residence permit in Finland.However, B could not enjoy this right because as a Somali citizen B could not obtain from the Somali authorities a travel document which would have been accepted by Finland.B's and A's right to family reunification under section 50 would thus be prevented for reasons beyond their control.According to the Immigration Service an exception could be made to the travel document requirement in individual cases provided that the family has been started before the sponsor comes to Finland.The Supreme Administrative Court held, however, that a sponsor who is a Finnish citizen has an equal right to family reunification in Finland under section 50, irrespective of the point in time when the family has been started.Denying B a residence permit on the sole ground that B did not have or could not obtain from the Somali authorities a valid travel document did not sufficiently take into account B's right to obtain a residence permit in the spouse's home country Finland.Under the circumstances denying the residence permit restricted B's and A's right to family reunification in Finland more than was necessary.The Supreme Administrative Court quashed the decisions of the administrative court and the Immigration Service and referred the matter back to the Immigration Service for a new consideration.

15.2.2016 / 15.2.2016 / RHANSKI

Date when decision was rendered: 1.7.2015

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 1873; 3782/3/13

Reference to source

KHO 2015:107.

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, family reunification, passport,
utlänningar, uppehållstillstånd, familjeåterförening, pass,
ulkomaalaiset, oleskelulupa, perheen yhdistäminen, passi,

Relevant legal provisions

sections 5, 7-2, 11-1-1, 13-1, 14-1, 35 and 114-1 of the Aliens Act

= utlänningslag 5 §, 7 § 2 mom., 11 § 1 mom. 1 punkten, 13 § 1 mom., 14 § 1 mom., 35 § och 114 § 1 mom.

= ulkomaalaislaki 5 §, 7 § 2 mom., 11 § 1 mom. 1 kohta, 13 § 1 mom., 14 § 1 mom., 35 § ja 114 § 1 mom.

ECHR-8

Abstract

A was a Somali citizen who had arrived in Finland in 2006 and had been issued a continuous residence permit on the basis of need for protection.In 2011, she married B, who was also a Somali citizen.The marriage took place in Ethiopia and was later registered into the Finnish population register.B then applied for a residence permit in Finland on the basis of family ties.According to section 35 of the Aliens Act, a requirement for issuing a residence permit is that the applicant has a valid travel document.Exceptions to this rule are possible in cases listed in section 35.B had a Somali passport.However, Finland does not accept travel documents issued by Somalia.The Finnish Immigration Service rejected B's application, on the grounds that he had not presented a valid travel document and no grounds had been brought forth for making an exception to the travel document requirement.The administrative court upheld the decision of the Immigration Service.

The Supreme Administrative Court noted that in the practice of public authorities section 35 of the Aliens Act has not been applied to the effect that exceptions could be made only in cases explicitly listed in section 35.The court found that it was apparent from the statements and guidelines of the Immigration Service that in addition to the exceptions listed in section 35, the Immigration Service was considering the possibility of making other exceptions in individual cases, particularly on the basis of Article 8 of the ECHR and the right to protection of family life.The court also referred to the case law of the European Court of Human Rights which has emphasised that in the context of both positive and negative obligations the state must strike a fair balance between competing interests of the individual and of the community as a whole (Rodriques da Silva and Hoogkamer v the Netherlands, judgment of 31 January 2006).In the case of Hode and Abdi v the United Kingdom (judgment of 6 November 2012) concerning family reunion, the European Court of Human Rights found no justification for treating refugees who married post-flight differently from those who married pre-flight.The Supreme Administrative Court found that in the present case the question was whether Finland had a positive obligation to issue B with a residence permit in order to protect A's and B's right to family life.

The Supreme Administrative Court then referred to section 114 of the Aliens Act which provides that, as a rule, a residence permit is issued on the basis of family ties to a family member of an alien who lives in Finland and has been issued with a residence permit on the basis of need for protection.Interpreting section 35 literally would make it impossible for B to obtain a residence permit, because as a Somali citizen, he could not obtain from the authorities in Somalia a travel document which would have been accepted by Finland.A's and B's possibility for family reunification would thus be prevented for reasons beyond their control.The Immigration Service had held that an exception to section 35 could be made, in individual cases, provided the family has been started before one of the spouses comes to Finland.In the court's view, such an interpretation would mean in practice that an alien who resides legally in Finland cannot start a family and lead a family life in Finland with a person who comes from a country whose passports are not valid for entry to Finland.The Supreme Administrative Court found that denying B a residence permit on the sole ground that he did not have and could not obtain from the Somali authorities a valid travel document did not sufficiently take into account A's right to family life and restricted A's and B's right to family reunification in Finland more than was necessary.The Supreme Administrative Court quashed the decisions of the administrative court and the Immigration Service and referred the matter back to the Immigration Servie for a new consideration.

15.2.2016 / 15.2.2016 / RHANSKI

Date when decision was rendered: 19.3.2014

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 803; 1056/1/12

Reference to source

KHO 2014:50.

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, family reunification, best interests of the child, respect for family life,
utlänningar, uppehållstillstånd, familjeåterförening, barnets bästa, respekt för familjeliv,
ulkomaalaiset, oleskelulupa, perheen yhdistäminen, lapsen etu, perhe-elämän kunnioittaminen,

Relevant legal provisions

sections 6, 37-1, 39-1, 66a, 114-1 and 114-4 of the Aliens Act

= utlänningslag 6 §, 37 § 1 mom., 39 § 1 mom., 66a § och 114 § 1 och 4 mom.

= ulkomaalaislaki 6 §, 37 § 1 mom., 39 § 1 mom., 66a § ja 114 § 1 ja 4 mom.

ECHR-8; CRC-3-1; CRC-7-1; CRC-10

Abstract

X and Y were both Iraqi nationals.Y had arrived in Finland as an asylum-seeker in 2008 and had been issued with a residence permit on grounds of subsidiary protection on 8 September 2009.X had arrived in Finland for the first time in 2009 and applied for asylum, then under a different name.X and Y met in Finland in August 2009 and married on 1 September 2009, following their cultural traditions concerning marriage.The Immigration Service rejected X's application for asylum, and in May 2010 X was returned to Italy where he had already been issued with a residence permit in 2009 on grounds of international protection.X then re-entered Finland, without a residence permit, and in September 2010 X and Y were married at a register office in Finland.Shortly thereafter X applied for a residence permit in Finland on the basis of family ties.The couple had a child in 2011.The Immigration Service again rejected X's application.It observed that because the marriage was conducted and the family thus formed after Y's entry into Finland, issuing a residence permit on the basis of family ties required that X has secure means of support in Finland.This was not the case, because X was dependent on social assistance.Also, the best interests of the child did not require an exemption from the requirement for means of support in this case, because the child could stay in Finland with the mother.The administrative court dismissed X's appeal.

According to the Aliens Act, issuing a residence permit requires as a rule that the alien has secure means of support.In individual cases, an exemption may be made from this requirement if there are exceptionally weighty reasons for such an exemption or if the exemption is in the best interests of the child.The Aliens Act also provides that issuing a residence permit to a family member of an alien who has been issued with a residence permit on the basis of the need for subsidiary protection does not require that the alien has secure means of support if the family was formed before the sponsor entered Finland.

The Supreme Administrative Court noted that the requirement for secure means of support is the clear basic rule in the Aliens Act.An exemption is possible only on grounds as prescribed by law and when required by particular circumstances in an individual case.It also observed that the European Court of Human Rights has found in its case law that the requirement for secure means of support has a legitimate aim as prescribed in Article 8-2 of the ECHR (Konstatinov v The Netherlands, judgment of 26 April 2007).

The Supreme Administrative Court also referred to the case of Rodriguez da Silva and Hoogkamer v The Netherlands (European Court of Human Rights, judgment of 31 January 2006, Reports of Judgments and Decisions 2006-I) and recalled that if family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious, it was likely only to be in the most exceptional circumstances that the removal of the non-national family member would constitute a violation of the right to family life under Article 8 of the ECHR.Also, where states tolerate the presence of aliens in their territory while the latter await a decision on an application for a residence permit or an appeal against such a decision, this enables the person concerned to take part in the host country's society and to form relationships and to create a family there.However, this does not entail that the authorities are, as a result, under an obligation to allow the alien concerned to settle in their country (Priya v Denmark, decision of 6 July 2006).

In the present case, X and Y had started their family life at a time when neither of them had a residence permit in Finland.X had already been returned to Italy once and he had come back to Finland without having applied for a residence permit before entering the country.They had married and X had applied for a residence permit on the basis of family ties in circumstances where the possibility for X to stay in Finland was uncertain, due to lack of income.Taking into account the time they had begun their family life, X and Y did not have an absolute right to continue their family life in a country of their own choice, which in this case was Finland.The Supreme Administrative Court held that when considering an exemption to the requirement for secure means of support the fact that it would be difficult for X and Y to lead a family life in Iraq was not decisive.The couple could lead a family life together either in Finland or in Italy, provided they could secure their income.The court also found that the fact that a child is possibly separated from one of the parents does not alone require that an exemption is made, in the best interests of the child, from the requirement for means of support.There must be other, individual factors or circumstances which have a concrete effect on the best interests of the child.In the present case, such factors or circumstances did not exist.The Supreme Administrative Court concluded that X's application for a residence permit is rejected and that he is to be returned to Italy.

28.6.2016 / 28.6.2016 / RHANSKI

Date when decision was rendered: 19.3.2014

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 804; 2046/3/13

Reference to source

KHO 2014:51.

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 ratkaisuja sisältävä tietokanta

Date of publication:

Subject

aliens, residence permit, family reunification, best interests of the child, respect for family life,
utlänningar, uppehållstillstånd, familjeåterförening, barnets bästa, respekt för familjeliv,
ulkomaalaiset, oleskelulupa, perheen yhdistäminen, lapsen etu, perhe-elämän kunnioittaminen,

Relevant legal provisions

sections 6, 37-1, 39-1, 49-1-5, 66a, 114-1 and 114-4 of the Aliens Act

= utlänningslag 6 §, 37 § 1 mom., 39 § 1 mom., 49 § 1 mom. 5 punkten, 66a § och 114 § 1 och 4 mom.

= ulkomaalaislaki 6 §, 37 § 1 mom., 39 § 1 mom., 49 § 1 mom. 5 kohta, 66a § ja 114 § 1 och 4 mom.

ECHR-8; CRC-3-1; CRC-7-1; CRC-10

Abstract

Y was originally from Somalia and had arrived in Finland as an asylum-seeker in November 2009.In February 2011 Y and her child, who was born in Finland in April 2010, were issued with a fixed-term residence permit on grounds of subsidiary protection.X, who was also from Somalia, had applied for asylum in Italy in 2008 and had been issued with a residence permit there.X first came to Finland in 2009 and applied for asylum here twice within a short period of time in 2010 and 2011.Both times his application was rejected and he was returned to Italy.He came to Finland again in October 2011 and applied then for residence permit on the basis of family ties.X and Y had met in Finland in September 2010 and their first child was born in June 2011.They had lived together since October 2011 and had married in December 2011.X and Y were not employed and were dependent on social assistance.The Immigration Service rejected X's application and the administrative court dismissed his appeal, on the grounds that X did not have secure means of support in Finland and that the best interests of the child did not require family reunification in the country where the child was born or where the mother lived.While X's case was pending the couple had another child in 2013.

According to the Aliens Act, issuing a residence permit requires as a rule that the alien has secure means of support.In individual cases, an exemption may be made from this requirement if there are exceptionally weighty reasons for such an exemption or if the exemption is in the best interests of the child.The Aliens Act also provides that issuing a residence permit to a family member of an alien who has been issued with a residence permit on the basis of the need for subsidiary protection does not require that the alien has secure means of support if the family was formed before the sponsor entered Finland.

The Supreme Administrative Court noted that the requirement for secure means of support is the clear basic rule in the Aliens Act.An exemption from the basic rule is possible only on grounds as prescribed by law and when required by particular circumstances in an individual case.It also observed that the European Court of Human Rights has found in its case law that the requirement for secure means of support has a legitimate aim as prescribed in Article 8-2 of the ECHR (Konstatinov v The Netherlands, judgment of 26 April 2007).

The Supreme Administrative Court also referred to the case of Rodriquez da Silva and Hoogkamer v The Netherlands (European Court of Human Rights, judgment of 31 January 2006, Reports of Judgments and Decision 2006-I) and recalled that if family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious, it was likely only to be in the most exceptional circumstances that the removal of the non-national family member would constitute a violation of the right to family life under Article 8 of the ECHR.In the present case, X and Y had started their family life at a time when neither of them had a residence permit in Finland and when they were aware that the immigration status of at least one of them was precarious.X had already been returned to Italy twice, and he had come back to Finland without having applied for a residence permit before entering the country.The court concluded that X and Y did not have an absolute right to continue their family life in a country of their own choice, which in this case was Finland.It also pointed out that the Aliens Act explicitly provides that the requirement for secure means of support applies to a family member of an alien who has been issued with a residence permit on the basis of the need for subsidiary protection if the family was formed after the sponsor entered Finland.In the court's view, when considering an exemption to the requirement for secure means of support the fact that it would be difficult for X and Y to lead a family life in Somalia was not decisive.The couple could lead a family life together in Finland or in Italy, provided they could secure their income.

Considering the best interests of the child the court found that the fact that a child is possibly separated from one of the parents does not alone require that an exemption is made, in the best interests of the child, from the requirement for means of support.There must be other, individual factors or circumstances which have a concrete effect on the best interests of the child.In the present case, X's and Y's first child was ill and needed constant care and regular visits to the hospital.The court held that it could not be guaranteed that the parents could provide the child with the necessary medical treatment in any other country than Finland.Therefore, considering the best interests of the child, the family should continue to live in Finland.Taking care of a sick child required a lot of resources and strength from the mother Y, particularly when she also had two other small children to look after.The Supreme Administrative Court found that in these exceptional circumstances the best interests of the child require X's active contribution to the family life in Finland.An exemption should thus be made to the requirement for secure means of support in the best interests of the child.The court concluded that under the circumstances refusing X a residence permit would be manifestly unreasonable and referred the case back to the Immigration Service for a new consideration.

28.6.2016 / 28.6.2016 / RHANSKI

Date when decision was rendered: 23.12.2014

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 4060; 2489/3/14

Reference to source

KHO 2014:188.

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, family reunification, access to court,
utlänningar, uppehållstillstånd, familjeåterförening, rätt till domstolsprövning,
ulkomaalaiset, oleskelulupa, perheen yhdistäminen, oikeus tuomioistuinkäsittelyyn,

Relevant legal provisions

sections 3-1-15, 37-1, 50-1, 62 and 192-2 of the Aliens Act; section 6-1, 74-1 and 74-2 of the Administrative Judicial Procedure Act

= utlänningslag 3 § 1 mom. 15 punkten, 37 § 1 mom., 50 § 1 mom., 62 § och 192 § 2 mom.; förvaltningsprocesslag 6 § 1 mom. och 74 § 1 och 2 mom.

= ulkomaalaislaki 3 § 1 mom. 15 kohta, 37 § 1 mom., 50 § 1 mom., 62 § ja 192 § 2 mom.; hallintolainkäyttölaki 6 § 1 mom. ja 74 § 1 ja 2 mom.

ECHR-8

Abstract

The police had rejected X's application for a residence permit on the basis of family ties.The police found there were reasonable grounds to suspect that X had married Y, who was a Finnish national, in order to evade the provisions on entry into or residence in the country.X and Y appealed against the decision to the administrative court.The court rejected X's appeal and ruled Y's appeal inadmissible.The court found that Y had no right of appeal.According to the Administrative Judicial Procedure Act, a person to whom a decision is addressed or whose right, obligation or interest is directly affected by a decision may appeal against the decision.The court pointed out that section 62 of the Aliens Act had been amended in 2011 to the effect that the family member residing in Finland (also referred to as the sponsor) no longer had the right to initiate the application procedure for a residence permit on the basis of family ties.Therefore, the court concluded, the sponsor had no right of appeal either.

The Supreme Administrative Court noted that before the amendment of section 62 of the Aliens Act the sponsor had an independent right to initiate the application procedure for a residence permit on the basis of family ties.The sponsor was also considered to have a right of appeal against a negative decision.When Finland introduced biometric identifiers in residence permits, section 62 of the Aliens Act was amended.When submitting an application for a residence permit the applicant is fingerprinted for the purposes of a biometric residence permit card.The applicant thus has to submit his or her application in person.Consequently, it was also necessary to amend the provisions on the right to initiate the application procedure.The Supreme Administrative Court then found that a negative decision on a residence permit application restricts the possibility of the spouses to lead a family life together in Finland.Refusing a residence permit to a sponsor's spouse thus affects the sponsor's rights and interests.Restricting the sponsor's right of appeal would have required separate provisions.Such a restriction could not be based on amended section 62 of the Aliens Act.The Supreme Administrative Court concluded that the sponsor has a right to appeal against a decision by which the spouse's application for a residence permit on the basis of family ties has been rejected.The administrative court should not have declared Y's appeal inadmissible.In order to avoid delay the Supreme Administrative Court examined Y's appeal and dismissed it, on the same grounds as presented by the administrative court when rejecting X's appeal.The Supreme Administrative Court also dismissed X's appeal against the decision of the administrative court.

4.7.2016 / 4.7.2016 / RHANSKI

Date when decision was rendered: 24.10.2016

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 731/4/16; 4434

Reference to source

KHO 2016:155.

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,
utlänningar, uppehållstillstånd, respekt för familjeliv, familjeåterförening, barn, barnets bästa,
ulkomaalaiset, oleskelulupa, perhe-elämän kunnioittaminen, perheen yhdistäminen, lapset, lapsen etu,

Relevant legal provisions

section 39 of the Aliens Act; preamble paragraphs 2 and 4, Article 1, Article 4-1-a and Article 7-1-c of Council directive 2003/86/EC on the right to family reunification

= utlänningslag 39 §; Rådets direktiv 2003/86/EG om rätten till familjeåterförening inledning 2 och 4 §, artikel 1, artikel 4-1-a och artikel 7-1-c

= ulkomaalaislaki 39 §; Neuvoston direktiivi 2003/86/EY oikeudesta perheenyhdistämiseen johdanto 2 ja 4 kohta, 1 artikla, 4 artikla 1 kohta a alakohta ja 7 artikla 1 kohta c alakohta.

Articles 7 and 24 of the Charter of Fundamental Rights of the European Union

Abstract

Y, who was from Russia, had applied for a residence permit in Finland on the basis of family ties.Y had married Z in 2014 and that same year they also had a child.Z was also originally from Russia but had lived in Finland since 1998 and had a permanent residence permit.Z's mother also lived in Finland on the basis of a permanent residence permit.Y had no income of her own.Z had had several short-term or part-time jobs, and when unemployed he had received an unemployment allowance.Z's mother had supported him financially.As a rule, issuing a residence permit requires that the alien has secure means of support unless otherwise provided in the Aliens Act.The Finnish Immigration Service found that Z's income was not sufficient in order to guarantee secure means of support for the family.Y's application for a residence permit was rejected.Also the administrative court found that Z's income was insufficient, that it had not been reliably shown that Z would be able to secure a sufficient and more stable income in the future and that it was unrealistic to expect Z's mother to provide for her adult son in the long run.The Supreme Administrative Court took a different view.It emphasized the right to family life and the principle of proportinality and acknowledged the mother's commitment to support Z and his family.

In interpreting the Aliens Act the Supreme Administrative Court relied on the Family Reunification Directive (2003/86/EC) and the case law of the Court of Justice of the European Union (C-356/11 and C-357/11 O et al. and C-358/14 Mimoun Khachab) in which the requirement for "stable and regular resources" as provided for in the Directive is discussed also in the light of the Charter and its provisions on the right to family life and the best interests of the child.The Supreme Administrative Court noted that authorization of family reunification is the general rule.The states' power to require evidence that the sponsor has stable and regular resources must be applied narrowly.In examining applications states must take into account the best interests of the child and must promote family life, and they shall not undermine the objective and effectiveness of the Family Reunification Directive.The measures by which the states implement the objectives of the requirement for stable and regular resources must not go beyond what is necessary to attain these objectives.The applicant should not be required to present more evidence than is necessary in order to assess whether she can be expected to become dependent on social assistance.The Supreme Administrative Court agreed that Z's unstable income was not sufficient to maintain his family.However, he had been active in seeking employment and he had a considerable sum of money deposited on his bank account.For 1½ years Z's mother had, on a regular basis, supported her son financially.She and her partner had informed the Court that they were willing to continue their financial support to Z, when necessary.Considering their financial situation the Court found their commitment reliable and real.The Court also noted that the requirement for secure means of support would be reassessed when issuing an extended residence permit.Consequently, the Court concluded that there was no reason to expect that Y would become dependent on social assistance or other siminal benefit.The case was referred back to the Finnish Immigration Service for a new consideration.

12.1.2017 / 29.5.2017 / RHANSKI

Date when decision was rendered: 2.12.2016

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 1836/4/16; 5134

Reference to source

KHO 2016:198.

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,
utlänningar, uppehållstillstånd, respekt för familjeliv, familjeåterförening,
ulkomaalaiset, oleskelulupa, perhe-elämän kunnioittaminen, perheen yhdistäminen,

Relevant legal provisions

section 39 of the Aliens Act; Council directive 2003/86/EC on the right to family reunification

= utlänningslag 39 §; Rådets direktiv 2003/86/EG om rätten till familjeåterförening

= ulkomaalaislaki 39 §; Neuvoston direktiivi 2003/86/EY oikeudesta perheenyhdistämiseen

Abstract

Y, who was a citizen of Ghana, had applied for a new fixed-term residence permit on the basis of family ties.Y was married to X and the couple had a child, born in 2015.X had a fixed-term residence permit as an employed person.The police rejected Y's application on grounds that X's salary from his permanent but part-time job was not sufficient to support two adults and did thus not meet the requirement for secure means of support as provided for in the Aliens Act.Y herself was dependent on unemployment benefit.The administrative court upheld the decision.Y appealed further to the Supreme Administrative Court.

In its decision the Supreme Administrative Court referred to its earlier decision KHO 2016:155 of 24 October 2016, which was concerning the requirement for secure means of support and the interpretation of the Aliens Act in light of the Family Reunification Directive (2003/86/EC) and the case law of the Court of Justice of the European Union.As stated by the CJEU, authorization of family reunification is the general rule and the states' power to require evidence that the sponsor has stable and regular resources must be applied narrowly.Also, in accordance with the principle of proportionality, the measures by which the states implement the objectives of the requirement for stable and regular resources must not go beyond what is necessary to attain these objectives.

The Supreme Administrative Court noted that in addition to his permanent part-time job, X had for several years been working as a leased employee through several personnel leasing agencies.The court pointed out that particularly in those sectors of the labour market that pay low wages it is common that employees are recruited for short-term jobs through personnel leasing agencies.The court found that, in view of the principle of proportionality, even other labour market practices than permanent full-time employment need to be given due weight when assessing whether a sponsor has a stable and regular income.Looking at each individual employment separately, X's income had been fairly low.However, based on an overall assessment, X's annual net income had for several years exceeded the income level that has been determined by established practice as being sufficient to support a family.Considering the total sum of X's annual income and that his income had been regular and stable, the court found no reason to expect that Y would become dependent on social assistance, except at most temporarily.The court concluded that X's average net income was sufficient to ensure that Y had secure means of support as required by the Aliens Act.The case was referred back to the police for a new consideration.

14.3.2017 / 14.3.2017 / RHANSKI