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Finland / Supreme Administrative Court / KHO:2016:155; 24.10.2016/4434

Y v Finnish Immigration Service

Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Administrative Court
Type:
Decision
Decision date:
24/10/2016

Key facts of the case:

Y had applied for a residence permit in Finland on the basis of family ties. Y had married Z in 2014 and that same year they also had a child. Z had lived in Finland since 1998 and had a permanent residence permit. Z’s mother also lived in Finland on the basis of a permanent residence permit. Y had no income of her own. Z had had several short-term or part-time jobs, and when unemployed he had received an unemployment allowance. Z’s mother had supported him financially. As a rule, issuing a residence permit requires that the alien has secure means of support unless otherwise provided in the Aliens Act. The Finnish Immigration Service found that Z’s income was not sufficient in order to guarantee secure means of support for the family. Y’s application for a residence permit was rejected. Also the administrative court found that Z’s income was insufficient, that it had not been reliably shown that Z would be able to secure a sufficient and more stable income in the future and that it was unrealistic to expect Z’s mother to provide for her adult son in the long run. The Supreme Administrative Court took a different view. It emphasized the right to family life and the principle of proportionality and acknowledged the mother’s commitment to support Z and his family.

Outcome of the case:

In interpreting the Aliens Act the Supreme Administrative Court did not directly apply the relevant Charter provisions. Instead, it relied on the Family Reunification Directive (2003/86/EC) and the case law of the CJEU (C-356/11 and C-357/11, O et al. and C-358/14 Mimoun Khachab) in which the requirement for “stable and regular resources” as provided for in the Directive is discussed also in the light of the Charter and its provisions on the right to family life and the best interests of the child. The Supreme Administrative Court noted that authorization of family reunification is the general rule. The states’ power to require evidence that the sponsor has stable and regular resources must be applied narrowly. The measures by which the states implement the objectives of the requirement for stable and regular resources must not go beyond what is necessary to attain these objectives. The applicant should not be required to present more evidence than is necessary in order to assess whether she can be expected to become dependent on social assistance. The Court agreed that Z’s unstable income was not sufficient to maintain his family. However, he had been active in seeking employment and he had a considerable sum of money deposited on his bank account. For 1½ years Z’s mother had, on a regular basis, supported her son financially. She and her partner had informed the Court that they were willing to continue their financial support to Z, when necessary. Considering their financial situation the Court found their commitment reliable and real. The Court also noted that the requirement for secure means of support would be reassessed when issuing an extended residence permit. Consequently, the Court concluded that there was no reason to expect that Y would become dependent on social assistance or other similar benefit. The case was referred back to the Finnish Immigration Service for a new consideration.