Finland - Supreme Administrative Court, 20 June 2012, KHO:2012:47
Keywords:
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
Despite his family ties, the Applicant was denied an extension to his residence document as he was regarded as a threat to public order and security.
The question was what emphasis had to be placed on the Union membership of the Applicant’s spouse and child of whom they had joint custody.
Facts:
A Nigerian citizen called O had arrived in Finland in 2004 as an asylum seeker. He was not granted international protection. In 2006 and his then partner had a child together. The child is a Finnish citizen and O is his/her guardian. Because of family ties, O was granted a residence document for the period 17.10.2006 – 7.10.2007 and an extension for the period 17.10.2007 – 17.10.2008.
Since then, O married a Finnish citizen with whom he has a child. The child was born in 2010 and is a Finnish citizen. O’s guardianship of the child born in 2006 ended in 2009.
Between 2006 – 2009 O was given both suspended and unconditional prison sentences for payment fraud, forgery, drugs offences, aggravated drugs offences, assault and petty assault. The aforementioned judgments were enforceable. Additionally, O had a pending appeal at the Court of Appeal against a judgment on aggravated assault.
The Helsinki Police Force turned down O’s application for a residence document extension on 19.3.2009. O lodged an appealwith the Helsinki Administrative Court. Because O was married to a Finnish citizen, the Administrative Court overturned the decision made by the Police Force and returned the case back for a review. The Helsinki Police Force rejected an application to extend the residence document on 15.4.2010.
Regarding the extension to the residence document, the Helsinki Police Force stated the following: O had repeatedly committed crimes in Finland. Between 2006 and 2009, amongst other things, he had been sentenced for a drugs offence and an aggravated drugs offence.
In their decision, the Police had applied the proportionality principle and on the one hand taken account of his continuous crime record and on the other, his family ties to Finland and his period of sojourn in the country. The Police considered him to be a threat to public order and security. Despite family ties, there were no grounds for granting an extension to his residence document.
The Immigration Service ordered O to be refouled to Nigeria and a five year ban on entering Finland and the Schengen area.
The Immigration Service noted that O had committed seven crimes, four of which resulted in a prison sentence. With his criminal activity, O could be considered to be a threat to public order and security. The Immigration Service had taken O’s family ties into consideration. Refoulment would not constitute an act of interference with his family life contrary to ECHR Article 8. In the overall consideration, grounds for refoulment carried more weight.
O appealed to the Helsinki Administrative Court against the judgments of the Helsinki Police Force and the Immigration Service. The Appellant claimed in his appeal that denying a residence document is against his rights as specified in Article 8 of the ECHRIOS. The criminal convictions against the Appellant had been given too much weight in the overall consideration. O had committed no crimes since 2008. The Applicant and his spouse stated that O had learnt from his mistakes, their relationship was stable and that denying the residence document would cause overwhelming problems for the family.
The Administrative Court rejected the appeal regarding the decisions made by the Helsinki Police Force and the Immigration Service but shortened the ban on entry to the country to three years.
The Administrative Court stated the following:
According to the information received in the case, the Applicant leads a close family life in Finland and he has a residence document based on his family ties.
Taking into account the Applicant’s criminal convictions, the Administrative Court considered him to be a threat to public order and security.
The Applicant’s previous partner had been interviewed regarding refoulment. She stated that the Applicant had not kept in touch with their mutual child and she did not object to him being refouled.
The Applicant had lived most of his life in Nigeria. The Administrative Court took the view that there were no reasons for the Applicant not to lead a family life in his native country.
The Administrative Court took the view that denying a residence document was not manifestly unreasonable.
Regarding refoulment, the Administrative Court stated that, taking into account the crimes the Applicant had committed, reasons for refoulment carried more weight than reasons against it.
Taking into account the Applicant’s family ties in Finland and the children’s right to see their father, the Administrative Court thought that shortening the ban on entering the country to three years was reasonable.
The Applicant requested leave to appeal to the Supreme Administrative Court and sought implementation of the prohibition on refoulment.
The Supreme Administrative Court suspended implementation of the refoulment until such time that it had made a decision on the appeal or ruled otherwise on the case.
Based on the Court of Justice of the European Union ruling in the case of C-34/09 Ruiz Zambrano, the Supreme Administrative Court considered requesting a preliminary ruling from the CJEU. The Appellant, the Immigration Service and the Helsinki Police Force were heard on the draft of the preliminary ruling.
The Helsinki Police Force took the view that the conditions for the Union Member and his family’s entry into and stay in the country were that he not endanger public order and security.
The Immigration Service stated that the case differs from the Ruiz Zambrano case in that the other guardian of the child is a Finnish citizen. Denying the Appellant’s residence document does not mean that the child will have to leave the Union area and thus could not carry the rights of a Union citizen.
The Appellant took the view that a preliminary ruling on applying Article 20 of the TFEU should be sought from the CJEU.
Decision & reasoning:
The Supreme Administrative Court granted leave to appeal and took the case for review. The Supreme Administrative Court did not request a preliminary ruling from the CJEU.
The Supreme Administrative Court rejected the appeal and returned the case to the Helsinki Administrative Court.
The Supreme Administrative Court stated the following:
In addition to the ruling on the extension of the residence document, refoulment and imposition of the denial of entry to the country, the question is what importance should be placed on the Union citizenship of the Appellant’s family members. The Supreme Administrative Court took into account the CJEU’s guidance in the case of C-34/09 Ruiz Zambrano.
The Supreme Administrative Court agreed with the Helsinki Administrative Court’s conclusion that the Appellant is a threat to public order and security.
Taking into account the differences between the case in question and the Ruiz Zambrano case as well as the Court’s guidance in the case of Dereci (Case C-256/11, Dereci, etc, ruling 15.11.2011), the Supreme Administrative Court can make a decision on the case without asking for a preliminary ruling from the CJEU.
The case in hand differs from the Ruiz Zambrano case as the denial of the Appellant’s extension to his residence document does not force the Union citizens to leave the Union area. The Appellant’s spouse and their mutual child have Finnish citizenships and thus they can stay and live in Finland. Union law and the regulatory framework of Union citizenship does not preclude the interpretation of national law in the decisions of the Helsinki Police Force and the Immigration Service.
The Appellant arrived in Finland at the age of either 21 or 22. He is well-placed to come to terms with Nigerian society because he spent his childhood and youth in the country.
The Appellant has strong family ties to Finland as he started a family and lives with a Finnish spouse and their mutual child. The child born in 2010 is at an adaptable age. Even if the child moved to Nigeria he/she could still visit his/her relatives living in Finland. The Finnish spouse would encounter practical difficulties if she moved to Nigeria. But taking into account the Appellant’s criminal convictions and the reasons based on public order and security, the reasons for refoulment carry more weight than the difficulties relating to family life. Considering the nature of the crimes, the ban on entering the country cannot be considered disproportionate.
Outcome:
The Supreme Administrative Court rejected the appeal. The Administrative Court’s ruling remained unchanged.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-34/09 Ruiz Zambrano [2011] ECR I-0000 |
| CJEU - C-256/11 Murat Dereci and others v. Bundesministerium für Inneres |
| ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99 |