Date when decision was rendered: 8.11.2001

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

Reference: Report No. 2773, 2978/3/00

Reference to source

KHO 2001:53.

Yearbook of the Supreme Administrative Court 2001 July-December

Högsta förvaltningsdomstolens årsbok 2001 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2001 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2003

Pages: pp. 184-189

Subject

respect for private life, respect for family life, aliens, principle of proportionality, residence permit,
respekt för privatliv, respekt för familjeliv, utlänningar, proportionalitetsprincipen, uppehållstillstånd,
yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, ulkomaalaiset, suhteellisuusperiaate, oleskelulupa,

Relevant legal provisions

sections 1, 20 and 38 of the Aliens Act; section 7 of the Aliens Decree

= utlänningslag 1 §, 20 §, 38 §; utlänningsförordning 7 §

= ulkomaalaislaki 1 §, 20 §, 38 §; ulkomaalaisasetus 7 §.

ECHR-8

Abstract

A had come to Finland from the Philippines with a visa issued for a short-term visit.During her stay in Finland A applied twice for a residence permit.While the decision of the Directorate of Immigration was pending A married a Finnish man.The marriage was brought to the knowledge of the Directorate of Immigration which, however, rejected A's application.It referred to the fact that the application for a first-time residence permit has to be made in the country where the applicant resides (section 7 of the Aliens Decree).It also concluded that A could not be issued a residence permit on the grounds of family ties as she had not, prior to entering Finland, lived with her Finnish husband for a minimum period of approximately two years (section 20 of the Aliens Act).The administrative court rejected A's appeal.A and her husband appealed to the Supreme Administrative Court.At that time, A was pregnant.

The Supreme Administrative Court came to the conclusion that the decisions of the Directorate of Immigration and the administrative court had restricted A's rights to an unnecessary degree and violated her and her husband's right to respect for private and family life.The Court referred to Article 8 of the ECHR, to the principle of proportionality as provided for in section 1 of the Aliens Act as well as to section 38 of the Aliens Act according to which all the relevant matters and circumstances shall be taken into account when considering the refusal of entry.Because of the nature of the job of A's husband in government service it was unreasonable to expect that he would move to his wife's home country.Sending A back to the Phillippines for the purpose of applying for a residence permit in the Finnish embassy there would prevent her from enjoying her right to family life and would also be an unreasonable financial burden to A and her husband.A's pregnancy also spoke for the issuing of a residence permit.The case was returned to the Directorate of Immigration for a new consideration.

29.10.2002 / 11.4.2007 / RHANSKI

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: 27.5.2003

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

Reference: Report No. 1292; 417/3/02

Reference to source

KHO 2003:28.

Yearbook of the Supreme Administrative Court 2003 January-June

Högsta förvaltningsdomstolens årsbok 2003 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2003 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2005

Pages: pp. 284-290

Subject

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

Relevant legal provisions

Sections 1c, 18b and 18c of the Aliens Act; sections 9 and 10 of the Constitution Act

= utlänningslag 1c §, 18b § och 18c §; grundlagen 9 § och 10 §

= ulkomaalaislaki 1c §, 18b § ja 18c §; perustuslaki 9 § ja 10 §.

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

Abstract

A was married to a Finnish citizen C.From a previous marriage A had a child B who was a minor.The Directorate of Immigration had rejected their applications for a residence permit.According to the Aliens Act, as a spouse of a Finnish citizen A could have been issued a residence permit on the basis of a family tie.As B was not C's family member, as defined in the Aliens Act, B could be issued a residence permit only if B had guaranteed means of support.The Directorate of Immigration found that considering C's income this was not the case.It concluded that taking into account all the relevant circumstances in the matter and as B could not be issued a residence permit, A's residence permit should also be refused.The administrative court agreed with the decision and rejected the appeal made by C and B.The court also referred to the ECHR and noted that Article 8 did not guarantee a person a general right to receive a residence permit in the home country of his or her spouse.C appealed to the Supreme Administrative Court on behalf of B.The Supreme Administrative Court discussed both the Aliens Act, the ECHR and the CRC.Regarding Article 8 of the ECHR, the Court noted that Article 8 provides protection for genuine and close family life.It does not grant an alien a general right of residence in the home country of his or her spouse, nor does it guarantee a child a right to be issued a residence permit in the country where the child's parent is residing.However, Article 8 guarantees family reunification provided there are no specific grounds against it.The Court continued that the requirement of guaranteed means of support is not as such in conflict with Article 8 as it is possible to interfere with the right to family life in the interests of the economic well-being of the country.The Court then referred to the CRC and to the best interests of the child.The fact that B could not be issued a residence permit because B did not have guaranteed means of support could not alone be regarded as a weighty reason for refusing A's permit.In the Court's view, it should be considered in A's case whether the purpose of the marriage has been to lead genuine and close family life.Furthermore, B's ties to B's home country, other factors relating to the best interests of the child as well as their possible effect in considering A's residence permit had to be taken into account.As far as B's residence permit was concerned, the Court found that the requirement of guaranteed means of support could not supersede the obligations under the CRC.The Court then concluded that, in this case it should be assessed whether it is in B's best interests to follow A and whether one in that case has to deviate from the requirement of guaranteed means of support.On the other hand, if B's family ties are mainly in B's home country it must be considered whether it is in B's best interests that A's residence permit is refused.The case was returned to the Directorate of Immigration for a new consideration.

21.4.2004 / 11.4.2007 / RHANSKI

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: 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: 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: 5.12.2005

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

Reference: Report no. 3219; 2306/3/05

Reference to source

KHO 2005:87.

Yearbook of the Supreme Administrative Court 2005 July-December

Högsta förvaltningsdomstolens årsbok 2005 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2005 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: pp. 681-691

Subject

aliens, marriage, best interests of the child, residence permit, children,
utlänningar, äktenskap, barnets bästa, uppehållstillstånd, barn,
ulkomaalaiset, avioliitto, lapsen etu, oleskelulupa, lapset,

Relevant legal provisions

sections 6-1, 36-2, 37-1 and 114-1 of the Aliens Act; sections 4, 115-1, 117-2 and 139-2 of the Marriage Act

= utlänningslag 6 § 1 mom., 36 § 2 mom. 37 § 1 mom. och 114 § 1 mom; äktenskapslag 4 §, 115 § 1 mom., 117 § 2 mom. och 139 § 2 mom.

= ulkomaalaislaki 6 § 1 mom., 36 § 2 mom., 37 § 1 mom. ja 114 § 1 mom.; avioliittolaki 4 §, 115 § 1 mom., 117 § 2 mom. ja 139 § 2 mom.

ECHR-8; ECHR-12; CCPR-23-2; CEDAW-16-1-b; CEDAW-16-2

Abstract

A had applied for a residence permit in Finland on the basis of a family tie.A had married his cousin B who resided in Finland.B and her family had come to the country as refugees in 1996.The marriage took place in Syria in 2004.At that time, B was 15 years old and, as a minor, she could not have married under Finnish law without a special permission from the Ministry of Justice.The Directorate of Immigration rejected A's application, mainly on the grounds that granting him a residence permit was not in the best interests of the child, B.On A's appeal, the administrative court revoked the Directorate's decision.It held that, considering the cultural and religious background of the persons concerned, issuing A with a residence permit could not be regarded as being in contradiction with the best interests of the child (B).Also, the fact that A and B had so far not lived together as a family did not mean that there was no bond between the spouses requiring the protection of genuine family life.

The Supreme Administrative Court agreed with the Directorate of Immigration and ruled that issuing a residence permit to A was in this case not in the best interests of B.Acknowledging that the marriage was valid under Syrian law and was therefore in principle also valid in Finland, the Court found that the mere validity of a marriage did not have an impact on the assessment of the matter concerning A's residence permit.In the Court's view, the fact that in some countries a person, who is still a minor according to Finnish law, may enter into marriage, cannot mean that, as a consequence, that person should be issued with a residence permit in Finland on the same grounds as a person who is of age when marrying.The Court also referred to the possibility that an applicant tries to evade the provisions on entry into a country by applying for a residence permit on the basis of a marriage to a person who is clearly a child.At the time the marriage between A and B was contracted, B was a minor and dependent on her parents in such a way that she cannot be considered to have given her full and free consent to the marriage.With reference to international human rights law, the Court ruled that immigrant girls also have the right to choose a spouse with their free and full consent, regardless of their culture and religion.The Supreme Administrative Court quashed the decision of the administrative court and upheld the decision of the Directorate of Immigration.

26.5.2006 / 3.7.2009 / RHANSKI

Date when decision was rendered: 28.7.2005

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

Reference: Report no. 1892; 2105/3/04

Reference to source

KHO 2005:50.

Yearbook of the Supreme Administrative Court 2005 July-December

Högsta förvaltningsdomstolens årsbok 2005 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2005 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: pp. 91-100

Subject

right to liberty, security of person, right to life, integrity, aliens, domestic violence, residence permit,
rätt till frihet, personlig säkerhet, rätt till liv, integritet, utlänningar, familjevåld, uppehållstillstånd,
oikeus vapauteen, henkilökohtainen turvallisuus, oikeus elämään, koskemattomuus, ulkomaalaiset, perheväkivalta, oleskelulupa,

Relevant legal provisions

section 21 of the Aliens Act (378/1991); sections 54-5, 58-4 and 215-1 of the Aliens Act (301/2004); section 7 of the Constitution Act

= utlänningslag (378/1991) 21 §; utlänningslag (301/2004) 54 § 5 mom., 58 § 4 mom. och 215 § 1 mom.; grundlagen 7 §

= ulkomaalaislaki (378/1991) 21 §; ulkomaalaislaki (301/2004) 54 § 5 mom., 58 § 4 mom. ja 215 § 1 mom.; perustuslaki 7 §.

Abstract

A had been issued a fixed-term residence permit on the basis of a family tie.She was married to B who resided in Finland with a permanent residence permit.Some six months after A have moved to Finland, she had to leave her home because of B's violent behaviour.She moved first to a shelter for women who have been subjected to domestic violence, and later to an apartment of her own.When her first residence permit expired, A applied for a new fixed-term residence permit.The Directorate of Immigration rejected her application on the grounds that the requirements under which A had originally been issued a residence permit were no longer met.Though A did not intend to divorce her husband, her family life with B had ended after a fairly short period of time and she had no other ties to Finland.The administrative court agreed with the Directorate of Immigration.Both instances based their decisions of the Aliens Act (378/1991) in force at that time.As the Act did not contain any explicit preconditions for issuing a new fixed-term residence permit, principles concerning revocation of residence permits were applied instead.

In its decision, the Supreme Administrative Court considered both the old (378/1991) and the new Aliens Act (301/2004), which entered into force 1 May 2004.As compared to the old Act, the new Aliens Act contains slightly different rules on the revocation of a residence permit in cases where the requirements under which the permit was issued are no longer met.According to the Government Bill to the Act, one of the principal ideas behind these provisions is that in cases in which the changes in circumstances cannot be attributed to the applicant, the residence permit may not be revoked if the applicant is already residing in Finland.The new Aliens Act also contains explicit provisions concerning the requirements for issuing a new fixed-term residence permit.According to these provisions, an alien who has been issued with a fixed-term residence permit on the basis of family ties may be issued with a new residence permit on the basis of close ties to Finland even when the family ties are broken.The Supreme Administrative Court also referred to section 7 of the Constitution Act which provides for the right to life, personal liberty, integrity and security and states that the personal integrity of an individual shall not be violated.The Court held that in this case, the facts pertaining to A's separation from her husband must be taken into account when considering whether A should be issued with a new fixed-term residence permit.Considering the principles in the new Aliens Act, the circumstances with had led to A's separation from her husband as well as the circumstances A would face if she returned to her home country (Tunisia) as a woman separated from her husband, the Supreme Administrative Court ruled that refusing a residence permit in A's case would be manifestly unreasonable.The Court quashed the decisions of the administrative court and the Directorate of Immigration and returned the matter to the Directorate of Immigration for reconsideration in accordance with the new Aliens Act (301/2004).

26.5.2006 / 10.10.2012 / RHANSKI

Date when decision was rendered: 26.1.2007

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

Reference: Report no. 172; 1250-1251/3/06

Reference to source

KHO 2007:6.

Yearbook of the Supreme Administrative Court 2007 January-June

Högsta förvaltningsdomstolens årsbok 2007 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2007 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: p. 45-54

Subject

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

Relevant legal provisions

sections 37, 50 and 115 of the Aliens Act

= utlänningslag 37 §, 50 § och 115 §

= ulkomaalaislaki 37 §, 50 § ja 115 §.

ECHR-8

Abstract

X and Y had applied for a residence permit in Finland in order to stay with their daughter Z who was married to a Finnish citizen and had a permanent residence permit in Finland.The Finnish Immigration Service (former Directorate of Immigration) had rejected both applications on the grounds that X and Y were not Z's or her husbands family members as defined in the Aliens Act.Regarding other grounds for issuing a residence permit under the Aliens Act, the Immigration Service held that the applicants had not presented any evidence to the effect that they would have been fully dependent on their daughter or that they intended to resume their close family life in Finland, as defined in Article 8 of the ECHR.The Immigration Service concluded that there were no grounds for issuing the applicants with continuous residence permits.The applicants had also not presented any other special reasons on the basis of which they could have been issued with temporary residence permits under the Aliens Act.

The administrative court agreed with the Immigration Service as far as continuous residence permits were concerned, but it would have issued the applicants with temporary residence permits.The court relied, among other things, to the Government Bill to the Aliens Act (HE 28/2003).In discussing special reasons on the basis of which relatives other than family members can be issued with a temporary residence permit, the Government Bill mentions as an example relatives who wish to learn more about Finnish culture and nature.In the opinion of the administrative court, grandparents wishing to get acquainted with their daughter's family and to nurse their grandchild could be granted a temporary residence permit for such special reasons.The court would thus have returned the case to the Immigration Service.However, the majority of the Supreme Administrative Court agreed with the Immigration Service.The Court noted that it was clear from their applications that X and Y intended to move to Finland on a more permanent basis.They could thus not be regarded as having presented any special reasons under the Aliens Act for receiving a temporary residence permit.Two dissenting judges were of the opinion that the applicants' intention to stay in Finland for a longer time did not as such prevent the issuance of a temporary residence permit for a short period of time.

8.7.2009 / 2.12.2010 / RHANSKI

Date when decision was rendered: 26.2.2009

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

Reference: Report no. 440; 1953/1/08

Reference to source

KHO 2009:22.

Yearbook of the Supreme Administrative Court 2009 January-June

Högsta förvaltningsdomstolens årsbok 2009 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2009 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 200-209

Subject

aliens, residence permit, refusal of entry, inhuman treatment or punishment,
utlänningar, uppehållstillstånd, avvisning, omänsklig behandling eller bestraffning,
ulkomaalaiset, oleskelulupa, käännyttäminen, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

sections 103-1, 146, 147 and 148 of the Aliens Act; section 9-4 of the Constitution Act; articles 3, 10, 16, 17, 18 and 20 of Council Regulation (EC) no. 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national

= utlänningslag 103 § 1 mom., 146 §, 147 § och 148 §; grundlagen 9 § 4 mom.; Rådets förordning (EG) nr 343/2003 on kriterier och mekanismer för att avgöra vilken medlemsstat som har ansvaret för att pröva en asylansökan som en medborgare i tredje land har gett in i någon medlemsstat 3, 10, 16, 17, 18 och 20 artikel

= ulkomaalaislaki 103 § 1 mom., 146 §, 147 § ja 148 §; perustuslaki 9 § 4 mom.; Neuvoston asetus (EY) no. 343/2003 niiden perusteiden ja menettelyjen vahvistamiseksi, joiden mukaisesti määritetään kolmannen maan kansalaisen johonkin jäsenvaltioon jättämän turvapaikkahakemuksen käsittelystä vastuussa oleva jäsenvaltio 3, 10, 16, 17, 18 ja 20 artiklat.

ECHR-3

Abstract

X, who was an Iraqi national, had sought asylum in Finland.He had travelled through Greece before arriving in Finland.The Finnish Immigration Service (former Directorate of Immigration) denied X residence permit and decided he should be returned to Greece because Greece under Council Regulation (EC) 343/2003 was responsible for examining his application for asylum.The Immigration Service also held that X's return to Greece would not be in violation of the prohibition of inhuman treatment as prescribed in Article 3 of the ECHR, section 9-4 of the Constitution Act and section 147 of the Aliens Act.The administrative court upheld the decision.X appealed further to the Supreme Administrative Court, relying among other things on reports by the UNHCR and human rights NGOs concerning serious defects in the asylum procedure and conditions in Greece.

The Supreme Administrative Court noted that there had been reports on serious defects in the Greek asylum procedure.However, the Court continued, international human rights monitoring bodies had not found that Greece would have violated the non-refoulement principle.The Court also referred to the decision on admissibility by the European Court of Human Rights in the case of K.R.S. v. the United Kingdom (2 December 2008), where the human rights court held that returning an Iranian asylum seeker to Greece was not in violation of Article 3 of the ECHR.In addition, Greece had informed the Finnish authorities that it would examine X's application for asylum and had confirmed that X would have the possibility to lodge an application with the European Court of Human Rights and to request interim measures under Rule 39 of the Rules of Court if his application for asylum was rejected and a decision was made on removing him to Iraq.The Supreme Administrative Court upheld the decision of the administrative court and ruled that X could be returned to Greece.

9.7.2009 / 2.3.2017 / 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: 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: 26.6.2014

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

Reference: Report no. 2041; 689/1/13

Reference to source

KHO 2014:114.

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, fair trial, oral hearing,
utlänningar, uppehållstillstånd, rättvis rättegång, muntligt förfarande,
ulkomaalaiset, oleskelulupa, oikeudenmukainen oikeudenkäynti, suullinen menettely,

Relevant legal provisions

sections 52, 108-1, 146, 147 and 149-1-1 of the Aliens Act; section 38-1 of the Administrative Procedure Act

= utlänningslag 52 §, 108 § 1 mom., 146 §, 147 § och 149 § 1 mom. 1 punkten; förvaltningsprocesslag 38 § 1 mom.

= ulkomaalaislaki 52 §, 108 § 1 mom., 146 §, 147 § ja 149 § 1 mom. 1 kohta; hallintolainkäyttölaki 38 § 1 mom.

Articles 47-1 and 51-1 of the Charter of Fundamental Rights of the European Union

Abstract

The Finnish Immigration Service had made a decision by which A's subsidiary protection status and residence permit were withdrawn and she was deported to Somaliland.The Immigration Service found that A had given false information as to where in Somalia she originally came from.This had affected the outcome of the decision to grant her subsidiary protection status.As grounds for its decision, the Immigration Service referred to the results of a language analysis, A's meagre knowledge of her alleged place of residence in Somalia and the contradictory information about A's origins received through interviewing A and various other persons.It was established that A was not from Southern Somalia but from Somaliland and was thus not in need of international protection.The Supreme Administrative Court upheld the decision.It declined A's request for an oral hearing.In the court's view, it was unlikely that A would have been able to provide new evidence which would impact the decision.Apart from oral evidence, she had no intention of presenting any other new evidence.

In discussing the requirements of fair trial and oral hearing, the Supreme Administrative Court referred to the decisions of the European Court of Human Rights in the cases of Maaouia v.France (judgment of 5 October 2000, Reports of Judgments and Decisions 2000-X) and Naumov v.Albania (decision of 4 January 2005) and noted that while decisions regarding the stay and deportation of aliens do not concern the determination of a person's civil rights or obligations, Article 6 of the ECHR was not applicable in this case.However, the court continued that the question of a fair trial must also be assessed as based on EU law.In this case, the main question was concerning the withdrawal of a subsidiary protection status, the grounds for which are regulated, among other provisions, in the Qualification Directive of the EU Council (2011/95/EU).Also, the Court of Justice of the EU has found that the procedure for granting and withdrawing refugee status relies in particular in compliance with the fundamental rights and principles recognized by the EU Charter of Fundamental Rights.The Supreme Administrative Court concluded that in the current case EU law is applied in a manner which makes it necessary to take into account the requirements of fair trial as guaranteed in Article 47 of the Charter.However, while Article 47 was applicable in the case, it did not obligate the court to conduct an oral hearing in this case, because hearing A in person would not have brought forth any additional evidence regarding the facts and because A had been heard in the administrative procedure preceding the court proceedings.

11.12.2015 / 11.12.2015 / RHANSKI

Date when decision was rendered: 20.10.2014

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

Reference: Report no. 3199; 3676/1/12

Reference to source

KHO 2014:152.

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, right to be heard, fair trial,
utlänningar, uppehållstillstånd, rätt att höras, rättvis rättegång,
ulkomaalaiset, oleskelulupa, oikeus tulla kuulluksi, oikeudenmukainen oikeudenkäynti,

Relevant legal provisions

sections 97-2 and 98-s of the Aliens Act; sections 34-1 and 34-2 of the Administrative Procedure Act; Article 8-2 of Council directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status

= utlänningslag 97 § 2 mom. och 98 § 2 mom.; förvaltningsprocesslag 34 § 1-2 mom.; Rådets direktiv 2005/85/EG om miniminormer för medlemsstaternas förfarande för beviljande eller återkallande av flyktingstatus artikel 8-2

= ulkomaalaislaki 97 § 2 mom. ja 98 § 2 mom.; hallintolainkäyttölaki 34 § 1-2 mom.; pakolaisaseman myöntämistä tai poistamista koskevissa menettelyissä jäsenvaltioissa sovellettavista vähimmäisvaatimuksista annettu neuvoston direktiivi 2005/85/EY 8 artikla 2 kohta.

ECHR-3; ECHR-6-1; Articles 47-1, 47-2 and 52-3 of the Charter of Fundamental Rights of the European Union

Abstract

A and B were Russian citizens.The Finnish Immigration Service had rejected their application for asylum and a residence permit and had refused them entry.The administrative court had dismissed their appeal without giving their councel the opportunity to be heard regarding the country of origin information used by the court when assessing the appeal.The Supreme Administrative Court ruled that there had been no procedural fault which would have affected the applicants' right to a fair trial.The Aliens Act and the Asylum Procedure Directive (2005/85/EC) require that decisions on applications for asylum are based on precise and up-to-date information.However, they do not obligate the determining authority to hear the applicant in an asylum procedure regarding country of origin information.The Supreme Administrative Court noted that the country of origin information did not immediately concern the applicants.As to its contents, the information used by the administrative court was not new or deviate from that used by the Immigration Service.Therefore, it was not necessary to hear the applicants again before the court specifically regarding country information.In their appeal to the administrative court, the applicants had had the opportunity to challenge the information sources used and the conclusions drawn by the Immigration Service.They had also had the opportunity to present new country information differing from that used by the Immigration Service.The Supreme Administrative Court upheld the decision of the administrative court.

In discussing the relevant international provisions, the Supreme Administrative Court referred to the decisions of the European Court of Human Rights in the cases of Maaouia v.France (judgment of 5 October 2000, Reports of Judgments and Decisions 2000-X) and Naumov v.Albania (decision of 4 January 2005) and noted that while decisions regarding the stay and deportation of aliens do not concern the determination of a person's civil rights or obligations, Article 6 of the ECHR was not applicable in this case.However, the court continued that because this case was concerning the implementation of EU law, Article 47 of the EU Charter of Fundamental Rights applied and that Article 47 largely corresponds to the requirements of fair trial as guaranteed in Article 6 of the ECHR.In discussing the assessment of country information, the Supreme Administrative Court also noted the judgment of the European Court of Human Rights in the case of Shakurov v.Russia (judgment of 5 June 2012).

11.12.2015 / 11.12.2015 / 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: 4.2.2013

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

Reference: Report no. 414; 139/1/11

Reference to source

KHO 2013:23.

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

Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, asylum, residence permit, refusal of entry, children, best interests of the child,
utlänningar, asyl, uppehållstillstånd, avvisning, barn, barnets bästa,
ulkomaalaiset, turvapaikka, oleskelulupa, käännyttäminen, lapset, lapsen etu,

Relevant legal provisions

sections 6-1, 52-1, 87-1, 88-1 and 88a-1 of the Aliens Act

= utlänningslag 6 § 1 mom., 52 § 1 mom., 87 § 1 mom., 88 § 1 mom. och 88a § 1 mom.

= ulkomaalaislaki 6 § 1 mom., 52 § 1 mom., 87 § 1 mom., 88 § 1 mom. ja 88a § 1 mom.

ECHR-3; CRC

Abstract

A had applied for a residence permit in Finland for herself and her three minor children on the basis of humanitarian protection.A was a Somali citizen and allegedly came from Mogadishu.As grounds for her application she referred to the poor security situation in Somalia and to various violations of her rights that had taken place in Mogadishu.The Finnish Immigration Service found that A had not presented any evidence to show that she would face a real risk of being subjected to persecution or serious harm in her home country.The Immigration Service was not convinced by A's account of the alleged violations and of her place of origin.The results of a language analysis showed that A clearly came from northern Somalia (Somaliland), not southern Somalia.The Immigration Service dismissed A's application and refused her entry into the country.The administrative court upheld the decision.

In her appeal to the Supreme Administrative Court, A, among other things, questioned the reliability of the language analysis.The Supreme Administrative Court noted there was no credible proof as to A's place of origin and therefore there were good grounds for carrying out the language analysis.The results of the language analysis were reliable but did not prove A's place of origin with full certainty.Therefore, in addition to the language analysis, other evidence had to be taken into account.Based on the evidence presented in the case, the court noted that A's knowledge of her alleged place of origin, Mogadishu, was very weak.Her account of the places where she had lived was contradictory.The court found there were sufficient grounds to conclude that A was not from Mogadishu but from Somaliland.The Supreme Administrative Court did not find it plausible that A would have had substantial grounds for believing that she would be persecuted in her home country.The court admitted that there were deficiences in the protection of human rights in Somaliland, but the situation in Somaliland was reported as stable.Access to services providing for basic needs of children was limited.However, basic health care and education were available.The Somaliland government had made a commitment of the CRC and had made an effort to align its laws and policies to the international standards established in the CRC.The Supreme Administrative Court also noted that A was not a single parent: she had her husband and four other children in Somalia.In the court's opinion no grounds had been shown for believing that A and her three children would face a risk of being subjected to inhuman treatment in their home country.A's and her children's health, their ties to Finland or the best interests of the children did not in this case require that A and the children are issued a residence permit on compassionate grounds.The court concluded that A and her children were not in need of international protection and could be refused entry into Finland.

18.2.2016 / 2.3.2017 / RHANSKI

Date when decision was rendered: 23.1.2015

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

Reference: Report no. 158; 1712/3/13

Reference to source

KHO 2015:14.

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, deported persons,
utlänningar, uppehållstillstånd, deporterade personer,
ulkomaalaiset, oleskelulupa, karkotetut henkilöt,

Relevant legal provisions

sections 7-2 and 58-4 of the Aliens Act; sections 33-1, 38 and 39-1 of the Administrative Procedure Act

= utlänningslag 7 § 2 mom. och 58 § 4 mom.; förvaltningsprocesslag 33 § 1 mom., 38 § och 39 § 1 mom.

= ulkomaalaislaki 7 § 2 mom. ja 58 § 4 mom.; hallintolainkäyttölaki 33 § 1 mom., 38 § ja 39 § 1 mom.

ECHR-3; ECHR-6-1; Article 47 of the Charter of Fundamental Rights of the European Union

Abstract

X was a Somali citizen and had been issued with a fixed-term residence permit in Finland on the basis of humanitarian protection.When X had been charged with a criminal offence in Finland, the police had commissioned a language analysis in order to establish X's identity.The charges were later dismissed.In the criminal proceedings, the court of appeal had ruled that the results of the language analysis were inadmissible as written evidence, because the analysis was anonymous and the analyst could thus not be heard as a witness in court.The language analysis had shown that X's place of origin was in fact Somaliland, not southern Somalia as he had claimed when applying for a residence permit.Having received the results of the language analysis from the police, the Finnish Immigration Service decided to cancel X's residence permit and to deport him to Somaliland.The Immigration Service held that X had misled the authorities when applying for a residence permit, by knowingly giving false information on his identity and on other matters relevant to the decision.The security situation in Somaliland was stable and X would not face a real risk of being subjected to inhuman treatment in that area.The administrative court upheld the decision of the Immigration Service.

In his appeal to the Supreme Administrative Court X, among other things, questioned the results of the language analysis and the competence of the analyst.X claimed that the administrative court should not have taken into account the language analysis statement, because it was anonymous and the analyst could thus not be heard in court in person and because it was submitted in connection with criminal charges which were dismissed.The Supreme Administrative Court noted that in criminal proceedings it is required that there is a possibility for an oral hearing of witnesses and experts so that the defendant can hear a witness and assess the credibility of a witness statement.However, in administrative proceedings concerning immigration and aliens an oral hearing is not required and the proceedings are mainly written.In administrative matters written evidence can be taken into consideration without the possibility of always hearing the person, who drew up the statement or report, as a witness when an appeal is made against an administrative decision.The Supreme Administrative Court held that, in accordance with the Administrative Procedure Act, the administrative court was responsible for reviewing the matter and for taking into account the language analysis as clarification of the grounds of the decision subject to appeal.This could be done without hearing the analyst as a witness.Also, no particular reason had been provided in this case for hearing the analyst as a witness.The Supreme Administrative Court concluded that it is for the administrative court to decide whether hearing of a witness is necessary.The administrative court had not acted in defiance of the law in this case.

In discussing the legal provisions relevant to the case, the Supreme Administrative Court also referred to the decisions of the European Court of Human Rights in the cases of Maaouia v France (judgment of 5 October 2000, Reports of Judgments and Decisions 2000-X) and Naumov v Albania (decision of 4 January 2005) and noted that while decisions regarding the stay and deportation of aliens do not concern the determination of a person's civil rights or obligations, Article 6 of the ECHR was not applicable in this case.The court also noted that because the case was not concerning EU law and international protection as established in the EU Qualification Directive (2011/95/EU), Article 47 of the EU Charter of Fundamental Rights was not applicable.

19.2.2016 / 19.2.2016 / RHANSKI

Date when decision was rendered: 6.2.2015

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

Reference: Report no. 290; 3469/1/13

Reference to source

KHO 2015:18.

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

Databasen för Högst förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

OIkeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, refugee status, residence permit, deported persons, criminality,
utlänningar, flyktingstatus, uppehållstillstånd, deporterade personer, brottslighet,
ulkomaalaiset, pakolaisen oikeusasema, oleskelulupa, karkotetut henkilöt, rikollisuus,

Relevant legal provisions

sections 36-1, 54-1, 54-2, 54-6, 107-1-5, 146-1, 149-1-2 and 150-1 of the Aliens Act; Articles 11-1-c and 16-1 of Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted

= utlänningslag 36 § 1 mom., 54 § 1, 2 och 6 mom., 107 § 1 mom. 5 punkten, 146 § 1 mom., 149 § 1 mom. 2 punkten och 150 § 1 mom.; Rådets direktiv 2004/83/EG om miniminormer för när tredjelandsmedborgare eller statslösa personer skall betraktas som flyktingar eller som personer som av andra skäl behöver internationellt skydd samt om dessa personers rättsliga ställning och om innehållet i det beviljade skyddet artikel 11-1-e och 16-1

= ulkomaalaislaki 36 § 1 mom., 54 § 1, 2 ja 6 mom., 107 § 1 mom. 5 kohta, 146 § 1 mom., 149 § 1 mom. 2 kohta ja 150 § 1 mom.; Neuvoston direktiivi 2004/83/EY kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelyä pakolaisiksi tai muuta kansainvälistä suojelua tarvitseviksi henkilöiksi koskevista vähimmäisvaatimuksista sekä myönnetyn suojan sisällöstä 11 artikla 1 kohta e alakohta ja 16 artikla 1 kohta.

Article 1-C-5 of the Convention relating to the Status of Refugees

Abstract

X was an Afghan citizen and had arrived in Finland as a quota refugee in 2004 together with his mother and siblings.At the time X was 17 years of age and still a minor.The UNHCR had designated X and his family as refugees based on the status of X's mother as a widowed single mother without male protection.In 2013, the Finnish Immigration Service withdrew X's refugee status and rejected his application for a new fixed-term residence permit.It also decided that X is deported to Afghanistan and prohibited from entering Finland for five years.X had committed several sexual offences for which he had been convicted to imprisonment and he could be regarded as being a threat to public order or security.On X's appeal, the administrative court held that despite the fact that there were valid grounds for deportation, X was still in need of international protection because of the unstable security and human rights situation in Afghanistan, and therefore he could not be deported to that country.The Immigration Service took the case to the Supreme Administrative Court.

The Supreme Administrative Court noted that X's refugee status had been based on the vulnerable situation of his mother, as a single parent to her minor children.X was now an adult.After X left Afghanistan and became a refugee, there had been considerable changes in his personal circumstances which gave cause to believe that he could lead a reasonable life in his home country.Based on various reports presented in the case, the Supreme Administrative Court did not find it plausible that X would be subjected to inhuman treatment or persecution in Afghanistan owing to his ethnic origin, religion, nationality, membership in a particular social group or political opinion.The court acknowledged that the overall security situation varied in Afghanistan.However, the province which X originally came from had been reported to be safe.The court concluded that, if returned to that area, X would not face a real risk of being subjected to serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts.X was manifestly no longer in need of protection, because the circumstances in connection with which he had been recognized as a refugee had ceased to exist, and this change in circumstances was significant and non-temporary (section 107 of the Aliens Act).

X had applied for a new fixed-term residence permit on the basis of his refugee status.Because he was manifestly no longer in need of international protection, his refugee status could be withdrawn.Therefore, the requirements under which his previous fixed-term residence permit had been issued were no longer met.While X's appeal was pending, he had married a Finnish citizen and they had a child.X's paternity had been established but he was not the child's quardian.Residence permit on the basis of family ties had to be applied separately.A residence permit may also be refused if the applicant is considered a danger to public order or security.

X had been found guilty of several sexual offences, among them aggravated child sexual abuse, and he had been convicted to imprisonment for two years and two months.All his offences had been committed against the personal integrity of another individual.Through his behaviour X had shown that he is liable to endanger other people's safety.There were thus valid grounds for his deportation.The fact that X had left his home country at an early age (he was less than 10 years old at the time) spoke against his deportation.However, he was nearly 18 years old and an adult when he came to Finland.X's mother and most of his siblings lived in Finland.However, this was not decisive, because X was already an adult.X's sister and her family lived in Afghanistan.X's marriage to a Finnish citizen and the establishment of his paternity took place when his appeal was already pending.The child was not in his care and it had not been shown that he would in fact have any real contact with the child.X was not at work but lived on social welfare.He had been accepted as a student at a university of applied sciences, but it had not been shown that he would actually have began his studies.The Supreme Administrative Court concluded that under the circumstances X did not have close ties with Finland.In the overall consideration of the deportation decision, the reasons speaking for deportation weighed more heavily than those against it.The Supreme Administrative Court quasted the decision of the administrative court and upheld the decision of the Immigration Service.

18.3.2016 / 18.3.2016 / RHANSKI

Date when decision was rendered: 18.3.2011

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

Reference: Report no. 684; 2288/1/10

Reference to source

KHO 2011:25.

Yearbook of the Supreme Administrative Court 2011 January-June

Högsta förvaltningsdomstolens årsbok 2011 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2011 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2011

Pages: 314-328

Subject

aliens, residence permit, refusal of entry, inhuman treatment or punishment,
utlänningar, uppehållstillstånd, avvisning, omänsklig behandling eller bestraffning,
ulkomaalaiset, oleskelulupa, käännyttäminen, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

sections 3-13, 87, 88, 88a and 88e of the Aliens Act; section 9-4 of the Constitution Act

= utlänningslag 3 § 13 punkten, 87 §, 88 §, 88a § och 88e §; grundlagen 9 § 4 mom.

= ulkomaalaislaki 3 § 13 kohta, 87 §, 88 §, 88a § ja 88e §; perustuslaki 9 § 4 mom.

ECHR-3; Articles 2, 18 and 19 of the Charter of Fundamental Rights of the European Union

Abstract

X, who was an Afghan citizen, had applied for international protection and a residence permit in Finland, but the Finnish Immigration Service had rejected his application.One of the main issues in this case was the possibility of safe return to the area in Afghanistan where X originally came from.The Supreme Administrative Court noted that according to the most recent country of origin information some parts of the district where X originated from could be regarded as safe.On the other hand, access to the area in question also needs to be safe.In this case, access by road could not be considered safe, due to land mines and attacks and fighting on busy roads, as reported by the UNHCR.Alternative forms of travel, as suggested by the Immigration Service (taking a detour through other safe districts or using a small aircraft) could not be regarded as viable options in X's circumstances.X had left Afghanistan with his father at the age of 13 and had then lived in Iran for some 14 years.In his case, internal flight to another area in Afghanistan was not a possible or reasonable alternative.The Supreme Administrative Court concluded that X should be issued with a residence permit in Finland on the basis of humanitarian protection.

18.3.2016 / 9.6.2017 / RHANSKI