Key facts of the case:
The appellant, a national of Algeria, has held a 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, born in 2004, 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 a 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.
Outcome of the case
Having requested a preliminary ruling of the Court of Justice of the EU (C–357/11, Maahanmuuttovirasto v. L, 6 December 2012), 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, or prevent the older child from the genuine enjoyment of the rights conferred by the child’s status as an EU citizen. Considering, for instance, the children’s age, their knowledge of Arabic, and the fact that a possible move to Algeria does not prevent the older child’s contacts with the biological father, the best interests of the child did not demand that an exception be made to the subsistence requirement.
In assessing the conditions for family reunification, the court must, first, consider the significance of the fact that the sponsor is the sole custodian of a child who is a Finnish national and at the same time a citizen of the European Union. Then, the question must be considered in a wider perspective and from various angles, taking into account the provisions of the Aliens Act, Articles 7 and 24 of the EU Charter of Fundamental Rights, Council Directive 2003/86/EC as well as Finland’s other international obligations.
Perheenyhdistämisen edellytyksiä arvioitaessa on ensinnä tarkasteltava, mitä merkitys on annettava sille, että perheenkokoajalla on huollossaan lapsi, joka on Suomen ja samalla Euroopan unionin kansalainen. Tämän jälkeen kysymystä on tarkasteltava laajemmin eri näkökohtien kannalta ottaen huomioon ulkomaalaislain säännökset sekä Euroopan unionin perusoikeuskirjan 7 ja 24 artiklan ja direktiivin 2003/86/EY määräykset samoin kuin muut Suomea sitovat kansainväliset velvoitteet.