Finland - Supreme Administrative Court, 30 December 2011, KHO:2011:116
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:
The authority issuing residence permits did not issue a residence permit based on family ties because it suspected that the Applicants had entered a so-called marriage of convenience. In this case the Court examined whether the authorities could refuse to issue a residence permit, when the requirements for a permit were met, if they suspected that the Applicant had intensions to evade the rules on entry into the country.
Facts:
The Applicant entered into marriage with a Finnish citizen in Thailand on 18 August 2009. On 3 September 2009 the Applicant arrived in Finland with a tourist visa and applied for a residence permit based on family ties.
The Police Department of Varsinais-Suomi considered that the application had been made with the intention to evade rules on entry into the country. For this reason the Police Department refused the application in reference to section 36 paragraph 2 of the Aliens Act. The spouses had no language in common and they had told different stories about their wedding festivities and the marital ceremony. When applying for the tourist visa the Applicant had confirmed that she would not apply for a residence permit in Finland and she had therefore given wrongful information in order to receive the visa.
The Applicant filed an appeal with the Administrative Court of Turku, which refused the appeal. The Administrative Court of Turku considered that the Police Department of Varsinais-Suomi had reasonable grounds to believe that the Applicant had tried to evade rules on entry into the country. No new reasons for issuing a residence permit to the Applicant had emerged.
The Applicant applied for leave to appeal from the Supreme Administrative Court and requested the Court to revoke the decisions by the Administrative Court and the Police Department.
The Applicant noted in the appeal, that the Applicant has spent time with her Finnish spouse since 2007 in Finland and Thailand. The spouse had bought an apartment in Thailand. Since spring 2011 they had been living in the house of the spouse. They communicated with the help of dictionaries. The Applicant has studied Finnish, which has become their common language. For practical reasons it had been difficult for the Applicant to file a residence permit application in Thailand.
Decision & reasoning:
The Supreme Administrative Court granted leave to appeal and took the case under consideration.
A family member of a Finnish national shall be issued a continuous residence permit on the basis of family ties in accordance with section 50 paragraph 1 of the Aliens Act. According to the preparatory works of the Aliens Act, the family member may apply for a residence permit in Finland and stay in Finland for the duration of the processing of the application. In accordance with section 36 paragraph 2 of the Aliens Act, the authorities may refuse an application for a residence permit if there are reasonable grounds to suspect that the alien had intentions to evade the provisions on entry into or residence in the country. The Police Department of Varsinais-Suomi and the Administrative Court of Turku had suspected that the Applicant had entered into a marriage of convenience with her spouse.
Finnish legislation does not define the concept of a marriage of convenience. The preparatory works of the Aliens Act state that a marriage of convenience is a marriage entered into only to receive a residence permit, without a genuine purpose of marital cohabitation. The concept of a marriage of convenience must thus be interpreted according to interpretative guidance from European Union law.
In Council Resolution of 4 December 1997 on measures to be adopted on the combating of marriages of convenience (97/C 382/01), the Council of the European Union notes that a marriage of convenience is a marriage concluded with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State.
According to the Council Resolution, a marriage may be a marriage of convenience if, for example, matrimonial cohabitation is not maintained, the spouses have never met before their marriage, the spouses are inconsistent about their respective personal details, or the spouses do not speak a language understood by both.
When defining the concept of marriage of convenience, one may also revert to the purpose of the European Parliament and Council Directive on the right of free movement of citizens (2004/38/EC) as well as the Communication from the Commission on guidance for better transposition and application of the Directive [COM(2009) 313 final).
It is defined in the Recitals of the Directive that a marriage of convenience is a marriage contracted for the sole purpose of enjoying the right of free movement and residence under the Directive that someone would not have otherwise.
As stated in the communication from the Commission, Member States may identify indicative criteria according to which it may be assessed whether a case involves abuse of Community rights and whether the rights conferred by the Directive are enjoyed solely for the purpose of contravening national immigration laws.
It is unlikely that a marriage has been concluded to abuse Community rights when, for example: the third country spouse would have no problem obtaining a right of residence in his/her own capacity or has already lawfully resided in the EU citizen’s Member State beforehand; the couple had a common domicile/household for a long time; the couple was in a relationship or a marriage for a long time; the marriage has lasted for a long time, or; the couple have already entered a serious long-term legal/financial commitment with shared responsibilities, for instance a mortgage to buy a home.
Issues which may be indicative of a marriage of convenience are, for example, that: the couple have never met before their marriage; the couple are inconsistent about their respective personal details; the couple do not speak a language understood by both; there is evidence of a sum of money or gifts handed over in order for the marriage to be contracted (with the exception of money or gifts given in the form of a dowry in cultures where this is common practice); the past history of one or both of the spouses contains evidence of previous marriages of convenience; family life developed only after the expulsion order was adopted, or; the couple divorces shortly after the third country national in question has acquired a right of residence.
According to the Commission communication, the burden of proof lies with the authorities arguing that there is a marriage of convenience. When assessing this, the authorities may not rely solely on one attribute but must give due attention to all circumstances of the individual case. The authorities must build a convincing case in particular on facts. In case the decision is appealed, the appellate instance must asses the case in detail.
In the case at hand, the Police Department of Varsinais-Suomi opined that there were reasonable grounds to suspect the Applicant of circumventing the rules on entry. The Police Department had come to this conclusion because the spouses did not speak a language understood by both and because they had told conflicting stories about their wedding.
The spouses had given a credible explanation to why the application for a residence permit had been filed in Finland and not in Thailand. Furthermore, even though they did not speak a language understood by both, they had explained how they had communicated in the beginning of their relationship and they had told how they both had studied the languages spoken by each other. The Supreme Administrative Court also took note of the length of cohabitation by the spouses before entering into marriage and the fact that the spouses where familiar with each other’s backgrounds and circumstances. The Supreme Administrative Court considered that the Applicant had applied for a residence permit for the purpose of actual matrimonial cohabitation.
Outcome:
The Supreme Administrative Court revoked the decisions made by the Administrative Court of Turku and the Police Department of Varsinais-Suomi. The matter was returned to the Police Department for a renewed consideration and in order to grant a residence permit to the Applicant.
Cited National Legislation:
| Cited National Legislation |
| Finland - Aliens Act - Section 5 |
| Finland - Aliens Act - Section 36 |
| Finland - Aliens Act - Section 50 |
| Finland - Aliens Act - Section 49 |
| 6a |
Other sources:
Council Resolution of 4 December 1997 on measures to be adopted on the combating of marriages of convenience (97/C 382/01)
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States
Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (COM(2009) 313 final)