Finland - Administrative Court of Vaasa, 24 June 2013, Vaasan HAO 01026/12/3101
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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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 Immigration Service had rejected applications for residence permits based on family ties, because the Applicants had not been heard in person. Conducting an oral hearing with the Applicants was not mandatory for establishing the requirements for family reunification. The refusal by the Immigration Service to conduct the hearing had in practice lead to the rejection of the applications for residence permits. The Administrative Court considered that the conduct of the authorities had caused undue harm to the Applicants.
Facts:
Somali nationals had filed an application for residence permits based on family ties on 2 December 2009. In a letter dated 18 May 2011, the Applicants were requested to arrive at the Finnish Embassy to Ethiopia in Addis Abeba on 13 – 14 June 2011 for an oral hearing in order to examine whether the requirements for family reunification were met. The letter stated in addition that, upon arrival, the Applicants had to prove that they were staying legally in Ethiopia. Due to time restraints, the Applicants were unable to travel to Ethiopia on time. Therefore, on 31 May 2011, the sponsor for the application requested the authorities to assign a new appointment for the oral hearing. The Applicants were assigned a new appointment for the hearing on 4 – 5 October 2011.
On 4 October 2011, the Applicants arrived at the Embassy, as agreed. They were not allowed to enter the Embassy, because the Applicants were unable to prove that they were legally staying in Ethiopia. The Applicants requested a new appointment for a hearing, but this was not granted to them. The Immigration Service subsequently rejected their applications for residence permits, because it had been unable to examine whether the Applicants met the requirements for family reunification.
The Applicants appealed the decision to the Administrative Court of Vaasa.
The Applicant stated in the appeal that Finnish authorities are bound by the fundamental right to good governance, as enshrined in section 21 of the Finnish Constitution. This section entails, among other rights, the right of a party to be heard in a case concerning him or her. The Immigration Service has a duty to investigate the matters before it and it is therefore also obligated to, for instance, instruct the applicant to satisfactorily complete his or her application.
The Immigration Service had based its decision on section 60 of the Aliens Act, which provides that an application for a first residence permit shall be filed in a country where the alien resides legally before entering Finland. The law does not specify at what stage of the application procedure the applicant should prove his or her legal stay.
Should the sponsor now file a new application for a residence permit on grounds of family reunification, it would likely be rejected as it is, since Finnish legislation on the grounds of family reunification had subsequently been changed.
In its reply, the Immigration Service stated that aliens could stay legally in Ethiopia if they had a visa, a residence permit or if they had filed an application with the UNCHR. The Ethiopian authorities had been in contact with the Finnish Embassy and requested the Embassy to take this into consideration when it was dealing with aliens staying in Ethiopia. The Immigration Service considered that it had the right to require that aliens applying for residence permits abide by the laws of the country where they dealt with their matters at Finnish Embassies.
Since 1 September 2011, the Immigration Service had required all aliens who dealt with the Embassy in Ethiopia to prove their legal stay in the country. The Immigration Service had informed the Applicants and the sponsor of this in writing.
Decision & reasoning:
The Administrative Court stated as follows:
Section 1 of the Aliens Act provides that the purpose of the Act is to implement and promote good governance in matters concerning aliens. Section 7, sub-section 2 provides that the authorities have a duty to investigate matters before them. Section 62, sub-section 2 provides that applicants and sponsors applying for residence permits based on family ties shall be provided with an opportunity to be heard before a decision is issued on the matter. According to section 64, the applicant, sponsor or other relative may be heard orally in the matter.
Due to the nature of matters concerning family reunification, it is vital to hear the parties when examining their case. The authorities had an obligation to investigate and the parties had a right to be heard. The Immigration Service was not allowed to limit its own duties nor the rights of the applicants simply by informing the applicants of new practices or of their obligation to prove their legal stay.
As the Applicants arrived at the Embassy on 4 October 2011 they were there for an oral hearing in a matter that had already been filed. Section 60 of the Aliens Act only requires that the applicant prove legal stay upon filing the application. In this case, the application had already been filed. The authorities had therefore acted wrongfully when they had not agreed to conduct the oral hearing on 4 October 2011.
Further, the Administrative Court considered whether the authorities would have had a duty to assign the Applicants a new appointment for an oral hearing at a later time by which time the Applicants would have been able to legalise their stay in Ethiopia. On the one hand, this matter was related to the duty of the authorities to investigate and the Applicants’ right to be heard. On the other hand, it was related to the efficient functioning of the authorities.
Declining to conduct the oral hearing had in practice lead to the Applicants’ residence permits being refused. The Applicants had cancelled their first appointment and made a long and difficult journey to the second one. The authorities could have assigned them a new appointment for a hearing without a substantial delay to the process. The Administrative Court therefore found that the authorities had acted in a manner that was not proportionate to its goal.
The Immigration Service was at fault and it had neglected its duty to investigate.
The decision was put to a vote 2-1.
The minority was formed by a judge and the referendary, who both would have rejected the appeal. They considered that the Applicants had had sufficient time to acquire documentation proving their legal stay in Ethiopia. They had been informed of this requirement in writing, and they had had at least four months to comply.
Outcome:
The decision was repealed and the matter was returned to the Immigration Service for a new process, for arranging a new hearing with the Applicants and for investigating whether the requirements for issuing residence permits were met.