Date when decision was rendered: 18.1.2005

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

Reference: Report no. 56; 2975/3/03

Reference to source

KHO 2005:2.

Yearbook of the Supreme Administrative Court 2005 January-June

Högsta förvaltningsdomstolens årsbok 2005 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2005 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2008

Pages: pp. 19-26

Subject

aliens, respect for private life, residence permit, marriage, right to marry,
utlänningar, respekt för privatliv, uppehållstillstånd, äktenskap, rätt att gifta sig,
ulkomaalaiset, yksityiselämän kunnioittaminen, oleskelulupa, avioliitto, oikeus solmia avioliitto,

Relevant legal provisions

sections 1 and 21 of the Aliens Act; section 10 of the Constitution Act

= utlänningslag 1 § och 21 §; grundlagen 10 §

= ulkomaalaislaki 1 § ja 21 §; perustuslaki 10 §.

ECHR-12; CCPR-23

Abstract

By its decision of 1 February 2002 the Directorate of Immigration had issued A a residence permit for one year on the basis of a family tie.In 1999, when the application for a residence permit was made, A had been unmarried and under 18 years of age.According to the Aliens Act, A could thus be regarded as a family member of his father who resided in Finland and had come to the country as a quota refugee in 1998.While the application was pending A came of age.When he arrived in Finland in March 2002, he told the authorities that he had married on 20 February 2002 and that his wife was seven months pregnant.He had met his wife in his previous country of residence in 2000.With reference to section 21 of the Aliens Act, the Directorate of Immigration revoked A's residence permit in July 2002 on the grounds that A, in applying for a residence permit, had given false information and had concealed matters which would have had a bearing on the residence permit decision (i.e., his intention to get married).A appealed against the decision to the administrative court which rejected the appeal.A appealed further to the Supreme Administrative Court which quashed the decisions of the Directorate of Immigration and the administrative court.The Court pointed out that the fact that A had come of age while his application was pending had been known to the Directorate of Immigration and could therefore not constitute a reason for revoking the residence permit.The Court referred to the right to marry as provided for in Article 12 of the ECHR and Article 23 of the CCPR, the right to privacy as prescribed in section 10 of the Constitution Act, and section 1-4 of the Aliens Act according to which aliens' rights shall not be curtailed more than is necessary.In the Court's view, it could not be held as a condition for a residence permit that a person who has come of age refrains from getting married for an indefinite time when that person has been issued a residence permit on the basis of a family tie.Under such circumstances a marriage could not be regarded as a considerable change affecting the grounds for entry or for issuing a residence permit.A's marriage could therefore not constitute a strong cause to revoke his fixed-term residence permit as prescribed in section 21 of the Aliens Act.

26.5.2006 / 3.7.2009 / RHANSKI

Date when decision was rendered: 6.7.2005

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1665; H2005/96

Reference to source

KKO 2005:84.

Decisions of the Supreme Court 2005 II July-December

Avgöranden av Högsta domstolen 2005 II juli-december

Korkeimman oikeuden ratkaisuja 2005 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2006

Pages: pp. 606-609

Subject

right to marry, aliens, principle of legality, nulla poena sine lege, marriage, immigration,
rätt att gifta sig, utlänningar, legalitetsprincipen, nulla poena sine lege, äktenskap, invandring,
oikeus solmia avioliitto, ulkomaalaiset, laillisuusperiaate, nulla poena sine lege, avioliitto, maahanmuutto,

Relevant legal provisions

Chapter 16, section 7-1 of the Penal Code; Chapter 31, section 8-4 of the Code of Judicial Procedure

= strafflagen 16 kapitel 7 § 1 mom.; rättegångsbalken 31 kapitel 8 § 4 mom.

= rikoslaki 16 luku 7 § 1 mom.; oikeudenkäymiskaari 31 luku 8 § 4 mom.

Abstract

Four Finns had each married Russian spouses.All four marriages ended after the Russian spouses had been granted residence permits in Finland.The Finns conceded that they had been paid or offered a reward for the marriage.Marriages of convenience contracted in order to circumvent immigration rules are not criminalized in Finnish law.However, the genuineness of a marriage may be assessed in the context of an application for a residence permit on the basis of a family tie.If the marriage has been contracted only in order to circumvent the rules on entry, the application for a residence permit is rejected.

In this case, the four Finns as well as one of the Russian spouses were charged with a registration offence under the Penal Code.Summoning the three other Russian spouses for trial failed.The court of first instance held that when saying "I do" as a part of the marriage ceremony, the defendants had provided false information and had thus caused a legally relevant error in the population register where marriages are registered.The defendants were sentenced to suspended imprisonment.

At the initiative of the Deputy Chancellor of Justice, the Supreme Court took up the case as a reversal of a final judgment.The Supreme Court held that in regard to the legitimacy of a marriage, the motives for the marriage are irrelevant.Though the motives for a marriage may in some issues have legal relevance, they are not entered in the population register.Therefore, the faultiness of a register entry regarding marriage cannot be determined on the basis of the motives of the marriage.Consequently, a register entry about marriage cannot be deemed false on the grounds that the marriage is contracted in order to obtain a residence permit.The Supreme Court ruled that in this case the defendants' deeds did not constitute a registration offence under the Penal Code.It reversed the decision of the first instance court to the benefit of the defendants as being based on a manifest misapplication of the law.

29.5.2006 / 29.5.2006 / RHANSKI

Date when decision was rendered: 3.2.2009

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

Reference: Report no. 219; 1433/1/08

Reference to source

KHO 2009:15.

Yearbook of the Supreme Administrative Court 2009 January-June

Högsta förvaltningsdomstolens årsbok 2009 januani-juni

Korkeimman hallinto-oikeuden vuosikirja 2009 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 127-152

Subject

respect for private life, respect for family life, right to marry, marriage, transsexuals, non-discrimination,
respekt för privatliv, respekt för familjeliv, rätt att gifta sig, äktenskap, transsexuella, icke-diskriminering,
yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, oikeus solmia avioliitto, avioliitto, transseksuaalit, syrjintäkielto,

Relevant legal provisions

sections 1, 2 and 5 of the Act on confirming the sexual identity of transsexual persons; sections 1 and 6 of the Marriage Act; sections 1 and 8 of the Act on Registered Partnerships; sections 4-1-2 and 6-1 of the Act on Population Data; section 3 of the Degree on Population Data; sections 6, 10-1, 22 and 106 of the Constitution Act

= lag om fastställande av transseksuella personers könstillhörighet 1 §, 2 § och 5 §; äktenskapslag 1 § och 6 §; lag om registrerad partnerskap 1 § och 8 §; befolkningsdatalag 4 § 1 mom. 2 punkten och 6 § 1 mom.; befolkningsdataförordning 3 §; grundlag 6 §, 10 § 1 mom., 22 § och 106 §

= laki transseksuaalin sukupuolen vahvistamisesta 1 §, 2 § ja 5 §; avioliittolaki 1 § ja 6 §; laki rekisteröidystä parisuhteesta 1 § ja 8 §; väestötietolaki 4 § 1 mom. 2 kohta ja 6 § 1 mom.; väestotietoasetus 3 §; perustuslaki 6 §, 10 § 1 mom., 22 § ja 106 §.

ECHR-8; ECHR-12; ECHR-14; Articles 7 and 9 of the Charter of Fundamental Rights of the European Union

Abstract

X, who was a male to female transsexual, requested that the local population register office makes a decision by which it recognizes X's sexual identity as female.X had been married to a woman for over ten years and the couple had a child.Because of their religious convictions, the couple wanted to remain married.According to the Act on confirming the sexual identity of transsexual persons, the post-operative gender of a transsexual person who is married can be recognized and entered in the population register, if the spouse gives his or her consent.Once the registration has been made, the marriage is converted into a registered partnership between a same-sex couple without any additional procedure.Because X's spouse had not given her consent, the local population register office rejected X's request.X appealed to the administrative court which agreed with the local register office.In her appeal to the Supreme Administrative Court, X claimed that in making the registration of post-operative gender conditional to the consent of the spouse and in forcing a couple to convert their marriage into a registered partnership, the Act on confirming the sexual identity of transsexual persons was discriminatory and violated the respect for private and family life.X also argued that the relevant provisions of the Act should not be applied because they were in evident conflict with constitutional rights and the Constitution Act.

In its decision, the Supreme Administrative Court discussed at length the development of the case law of the European Court of Human Rights concerning transsexuals and the question as to what extent it falls within the appreciation of the state to regulate the right to marry for transsexuals.The Supreme Administrative Court noted that the Finnish legislation permits registered partnership between same-sex couples but not same-sex marriage.It then pointed out that the question of amending the institution of marriage by defining it in gender-neutral terms contains conflicting issues pertaining to ethical and religious values, and this kind of a question must be resolved by an Act of Parliament.In the Act on confirming the sexual identity of transsexual persons, the legislator has wanted to retain the traditional concept of marriage as being between a man and a woman, making it however possible to register a married transsexual person's post-operative gender on the consent of the spouse.The marriage then continues as a registered partnership which in legal terms is nearly equal to marriage.The Supreme Administrative Court considered that, in assessing the fair balance between transsexual persons' right to private life on the one hand and the prevailing concepts and values related to family law on the other, the current solution, in the form of the provisions of the Act on confirming the sexual identity of transsexual persons, did not exceed the margin of appreciation allowed to States Parties to the ECHR.The Court also found that the application of the provisions in this case was not in evident conflict with the Constitution Act.It concluded that, on the whole, X had been ensured her right to private and family life as prescribed in the Constitution Act and the ECHR, taking also into account Articles 12 and 14 of the ECHR and the case law of the European Court of Human Rights.

See also the case of H. v.Finland (Application No. 37359/09), judgment of the European Court of Human Rights, 13 November 2012.

18.11.2009 / 15.11.2012 / RHANSKI

Date when decision was rendered: 11.2.2015

Judicial body: Supreme Administrative Court = Hösta forvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 333; 2713/3/14

Reference to source

KHO 2015:21.

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, right to marry, marriage, oral hearing,
utlänningar, rätt att gifta sig, äktenskap, muntligt förfarande,
ulkomaalaiset, oikeus solmia avioliitto, avioliitto, suullinen menettely,

Relevant legal provisions

section 10, 12-2 and 111 of the Marriage Act; section 2 of the Marriage Degree; section 38 of the Administrative Procedure Act

= äktenskapslag 10 §, 12 § 2 mom. och 111 §; äktenskapsförordning 2 §; förvaltningsprocesslag 38 §

= avioliittolaki 10 §, 12 § 2 mom. ja 111 §; hallintolainkäyttölaki 38 §.

ECHR-12

Abstract

Somali citizens A and B intended to marry and had submitted to the local register office a request for the investigation of impediments to marriage.A had told he was a widow, whereas B was divorced.They had not presented any documentary evidence of their respective marital status.However, they had four witness statements to support their application.The register office did not regard the evidence as reliable and rejected the request.The applicants appealed to the administrative court and requested an oral hearing.The administrative court rejected the appeal and the request for an oral hearing.It held that an oral hearing would not bring forth any additional evidence which would be necessary for the determination of the appeal.A and B appealed further to the Supreme Administrative Court.

The Supreme Administrative Court cited Article 12 of the ECHR which provides that men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.The court also referred to the case law of the European Court of Human Rights (O'Donoghue et al. v.The United Kingdom, judgment of 14 December 2010) and noted that the reference to national laws in Article 12 gives the state a fairly wide margin of appreciation when regulating, for example, marriage procedures or the impediments to marriage.However, such limitations must not restrict or reduce the right to marry in such a way or to such an extent that the very essence of the right is impaired.In the present case, the applicants' marital status could not be verified from the Finnish population register.They were also not able to present documentation from the officials of their native country for the examination of impediments to marriage.The written statements they had presented were not regarded as reliable.Consequently, their possibility to get married was essentially dependent on the fact whether an oral hearing is conducted when examining the impediments to marriage.In this case the main issue was concerning the reliability of presented evidence.Under the circumstances, the administrative court should not have rejected the applicants' request for an oral hearing.The Supreme Administrative Court referred the matter back to the administrative court for an oral hearing and a new consideration.

10.2.2016 / 10.2.2016 / RHANSKI