Finland - Supreme Administrative Court, 22 May 2013, KHO:2013:97

Facts:

An Algerian citizen called L was a sponsor who had previously been granted a residence document in Finland on the basis of a now defunct marriage. L had a dependant child born in 2004 from a previous marriage. The child is a Finnish citizen. A sponsor receives income support, household support, child benefit, housing benefit as well as maintenance support paid by the municipality.

The Applicant for the residence document is a citizen of Algeria called M who lives in Algeria. He/she arrived in Finland in March 2006 as an asylum seeker. In October 2006 he/she married L. His/her asylum application was refused and he/she was refouled to Algeria soon after this. In 2007, L and M had a child who is an Algerian citizen. M applied for a residence document in Finland on the grounds of family ties.

The Immigration Service rejected the application. L appealed to the Helsinki Administrative Court which returned the case to the Immigration Service for review. In its judgment, the Helsinki Administrative Court stated that M is a member of L’s family and therefore he/she can be granted a residence document based on family ties, under prescribed statutory conditions. Although M’s income was not sufficient, the prerequisite for means of income could be deviated from in the best interests of the child.

The Supreme Administrative Court granted permission to appeal. The Supreme Administrative Court stayed the proceedings in their decision of 5.7.2011, record number 1882 (KHO 2011:62) and requested a preliminary ruling on the matter of the interpretation of Article 20 of TFEU from the Court of Justice of the European Union (CJEU) as per  Article 267 of the TFEU.

In their request for a preliminary ruling, the Supreme Administrative Court asked the CJEU whether Article 20 TFEU would prohibit refusal of a residence document and whether this assessment would be affected by the fact that the applicant for the residence document and his/her spouse, residing in Finland,  have  joint custody of a child living in Finland who is a third country national.

The CJEU decided on the  questions posed by the Supreme Administrative Court in a ruling on joint matters C-356/11 (O and S v. the Immigration Service) and C-357/11 (the Immigration Service v. L) dated 6.12.2012. The CJEU took the view that Article 20 TFEU poses no barrier to denying a residence document based on family reunification.

The CJEU further stated that the matter falls within the scope of the Family Reunification Directive. A Member State can ask the Applicant for family reunification for evidence of sufficient means of income as per Article 7 of the Directive. But the Member State has to take into account Articles 7 and 24 of the Charter of Fundamental Rights which require the Member States to observe the right to family life and the best interests of the child.

Decision & reasoning:

The Supreme Administrative Court assessed the case from the point of view of the exercise of rights by a Union citizen, the prerequisite for means of income as specified in the Finnish law and the best interests of the child.

Referring to the preliminary ruling of the CJEU, the Supreme Administrative Court stated that Article 20 TFEU does not prevent the Member State from denying an applicant’s residence document, so long as it does not create a barrier stopping the Union citizen from exercising rights to which he/she is entitled. The Supreme Administrative Court took the view that the decision in this case is not relevant to the sponsor or his/her child who is a Finnish citizen. It does not prevent them from continuing their legal stay in Finland. The Applicant has not demonstrated that the eldest child of the sponsor has the necessary dependency on him/her. Therefore, rejecting M’s residence document application does not lead to the eldest child of the sponsor not being able to exercise the rights of the Union citizen he/she is entitled to in the future.

On livelihood, the Supreme Administrative Court stated the following: because the sponsor is a citizen of a third party country who himself/herself at the time came to Finland on the ground of family reunification, when considering the residence document of his/her family member, the fulfilment of the means of support requirement according to Article 1 of Section 39 of the Alients Act has to be taken into account.

The requirement of means of support is fulfilled if the foreigner living in the country can support his/her stay by receiving an income from accepted forms of gainful employment, entrepreneurial activity, pensions, wealth or sources of other income. A foreigner cannot be expected to be in need of income support or other corresponding support guaranteeing an income benefit as specified in the law regarding income support. In individual cases exceptions can be made to a requirement for income support if there is an exceptionally strong reason or if it is in the best interests of the child. In this case, the spouses’ circumstances do not demonstrate an exceptionally strong reason warranting departure from the requirement for means of support. The sponsor and the Applicant are both Algerian citizens. The sponsor moved to Finland when he/she was an adult and has lived in Finland for approximately 10 years. He/she has such cultural and social ties to Algeria, too, that it is not unreasonable to expect him/her to move to live there if he/she wants to have a family life with the Applicant. When getting married, the spouses were aware that there was uncertainty regarding the Applicant’s residence document being granted.

Both of the sponsor’s children were born in Finland and have lived all of their lives with their mother who is of Algerian origin. According to the file, the the mother tongue of the applicant is Arabicin the population register. It can therefore be assumed that both children, in addition to Finnish, are able to speak Arabic to such a level that their language skills would enable them to integrate in Algeria, too. If they moved to Algeria with their sponsor mother, its culture and language would not be alien to them. In a possible move, their mother would be of support to them as she originates from Algeria and lived there well into her adulthood. Also, the younger child’s father who has lived in Algeria the whole time would be in residence.

The children are now aged 9 and 6. There has not been any factors outside the home such as would showintegration to such a level as to prevent them from moving to Algeria with their mother. Also, both of them are of an age which enables them to adapt to new circumstances.

The sponsor is the sole carer for the elder child. The chilld’s father is a Finnish citizen and lives in Finland. He is against his child’s possible move to Algeria. He keeps in touch with his child but during the course of the consideration of the case, there was no indication that the contact was of a frequent nature. It would be possible to keep in contact even if the child did move to Algeria. The child’s father could visit him/her in Algeria and vice versa and they could maintain contact in other ways than visiting.

Although moving to Algeria would be a major upheaval in the children’s lives, several factors point to it being possible for them to adjust to it together with their mother.

The Supreme Administrative Court took the view that in the best interests of the child there is no requirement to deviate from the means of support as specified Article 1 Section 39 of the Aliens Act.

Outcome:

The Supreme Administrative Court overturned the judgment made by the Administrative Court and restored the decision made by the Immigration Service.

Other sources:

UNHCR Guidelines on Determining the Best Interest of the Child