QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE FAMILY REUNIFICATION OF 22 SEPTEMBRE 2003

Transcription

1 QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE FAMILY REUNIFICATION OF 22 SEPTEMBRE 2003 FINLAND by Scheinin, Martin Professor, Director 8 November 2007 The person in the team of thematic coordination in charge of this directive that you can contact if you have a question or need help when completing this questionnaire is: Yves Pascouau, , yves.pascouau@univ-pau.fr COMMENTARIES 1. Council directive 2003/86 on the right to family reunification faced hard negotiations requiring the presentation of revised proposals from the Commission before final adoption in The European Court of Justice rejected in June 2007 an action for annulment introduced by the European Parliament against the Council directive (C-540/03). 2. Transposition of the directive must be assessed regarding the nature of the provision concerned. So as to help you, those provisions are coloured within the questionnaire as follows: obligatory provision (Q.XX), optional provision (Q.YY), provision which set up a derogation (Q.ZZ) 3. The Court of justice has defined the margins of discretion awarded to the member States even in situations where the directive allows the member States to depart from the directive. The Court states : "Article 4(1) of the Directive imposes precise positive obligations, with corresponding clearly defined individual rights, on the Member States, since it requires them, in the cases determined by the Directive, to authorise family reunification of certain members of the sponsor s family, without being left a margin of appreciation" (cons. 60). "Note should also be taken of Article 17 of the Directive which requires Member States to take due account of the nature and solidity of the person s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his country of origin. As is apparent from paragraph 56 of the present judgment, such criteria correspond to those taken into consideration by the European Court of Human Rights when it reviews whether a State which has refused an application for family reunification has correctly weighed the competing interests" (cons. 64) The fact that the concept of integration is not defined cannot be interpreted as authorising the Member States to employ that concept in a manner contrary to general principles of Community law, in particular to fundamental rights. The Member States which wish to make use of the derogation cannot employ an unspecified concept of integration, but must apply the condition for integration provided for by their legislation existing on the date of implementation of the Directive in order to examine the specific situation of a child over 12 years of age arriving independently from the rest of his or her family" (cons. 70). NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 429

2 4. The main difficulty according to the transposition of the directive relies on the systematic opportunities offered to member States to depart from the provisions of the directive when applying it. 5. Article 19 indicates which themes where the most sensitive during the negotiations of the Directive (art. 3, 4, 7, 8 and 13). FIRST PART 1. NORMS OF TRANSPOSITION AND JURISPRUDENCE Q.1.A. Identify the MAIN (because of its content) norm(s) of transposition and indicate its legal nature This question includes even norms adopted before the adoption of the directive but ensuring its transposition (what is called a pre-existing norm in the table of correspondence). Quote the norm of transposition and not only the norm modified by it (the same is true in case of existence of a code of aliens law) About legal nature in the table below: legislative refers to a norm adopted in principle by the Parliament; regulation refers to a norm complementing the law and adopted in principle by the executive power; circular or instructions refer to practical rules about implementation of laws and regulations and adopted in principle by the administrative authorities Please duplicate the table below if there is more than one MAIN norm of transposition This table is about: x a text already adopted a text which is still a project to be adopted TITLE: Ulkomaalaislaki (Aliens Act) DATE: NUMBER: 301/2004 DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED: 6, 7, 36, 37, 38, 39, 52, 53, 54, 55, 56, 58, 60, 62, 66a, 69a, 79, 114, 146, 190 REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: /2004 LEGAL NATURE: x LEGISLATIVE: REGULATION: CIRCULAR or INSTRUCTIONS: NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 430

3 This table is about: x a text already adopted a text which is still a project to be adopted TITLE: Laki ulkomaalaislain muuttamisesta (Act amending the Aliens Act) DATE: NUMBER: 380/2006 DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED: All provisions of this act are devoted to transposition of the directive. REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: /380 LEGAL NATURE: x LEGISLATIVE: REGULATION: CIRCULAR or INSTRUCTIONS: This table is about: x a text already adopted a text which is still a project to be adopted TITLE: Ulkomaalaisviraston antama ohje ulkomaalaislakiin (301/2004) sisältyvien perhesiteen perusteella myönnettäviä oleskelulupia koskevien säännösten soveltamisesta (Guidelines given by the Directorate of Immigration concerning the application of the provisions of the Aliens Act (301/2004) that concern residence permits on grounds of family ties) DATE: NUMBER: Dnro 6/010/2005 DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED: All provisions of the Guidelines concern family reunification. The Guidelines is not, however, explicitly devoted to transposing the directive. REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: not published in the Official Journal LEGAL NATURE: LEGISLATIVE: REGULATION: x CIRCULAR or INSTRUCTIONS: Q.1.B. List the others norms of transposition by order of importance of their legal nature (first laws, secondly regulations; thirdly circulars or instructions): This question includes even norms adopted before the adoption of the directive but ensuring its transposition (what is called a pre-existing norm in the table of correspondence). Quote the norm of transposition and not only the norm modified by it (the same is true in case of existence of a code of aliens law) NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 431

4 Please use one table per norm and duplicate as much as necessary TITLE: Perusopetuslaki (Act on basic education) DATE: NUMBER: 628/1998 DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED : In particular 25. REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: /628 LEGAL NATURE: xlegislative REGULATION CIRCULAR OR INSTRUCTIONS TITLE: Laki julkisesta työvoimapalvelusta (Act on public employment services) DATE: NUMBER: 1295/2002 DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED : In particular Chapter I, 7 and Chapter III, 7. REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: /1295 LEGAL NATURE: x LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS TITLE: Laki ammatillisesta koulutuksesta (Act on vocational training) DATE: NUMBER: 630/1998 DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED : In particular 26 and 27. REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: /630 LEGAL NATURE: x LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 432

5 TITLE: Laki ammatillisesta aikuiskoulutuksesta (Act on vocational training for adults) DATE: NUMBER: 631/1998 DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED : REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: /631 LEGAL NATURE: x LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS TITLE: Ammattikorkeakoululaki (Act on colleges) DATE: NUMBER: 351/2003 DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED : In particular 20. REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: /351 LEGAL NATURE: x LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS TITLE: Yliopistolaki (University Act) DATE: NUMBER: 645/1997 DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED : In particular 18 and 18a. REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: /645 LEGAL NATURE: x LEGISLATIVE REGULATION CIRCULAR OR INSTRUCTIONS NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 433

6 TITLE: Ulkomaalaisviraston antama ohje ulkomaalaislain 39 :n 2 momentin toimeentuloedellytyksen soveltamisesta (Guidelines given by the Directorate of Immigration on applying the income requirement laid down in 36.2 of the Aliens Act) DATE: NUMBER: Dnro 3/010/2004 DATE OF ENTRY INTO FORCE: PROVISIONS CONCERNED : all REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: Not published in the Official Journal. LEGAL NATURE: LEGISLATIVE REGULATION x CIRCULAR OR INSTRUCTIONS Q.2. THIS QUESTION IS IN PRINCIPLE ONLY FOR FEDERAL OR ASSIMILATED MEMBER STATES LIKE AUSTRIA, BELGIUM, GERMANY, ITALY, SPAIN -Those provisions of the Aliens Act 301/2004 that transpose the provisions of the Directive to national legislation are directly applicable in Åland and thus no special legislative measures were required in this respect. Åland has autonomy in the area of education. The legislation in force in Åland in this area meets the requirements following from the Directive. Q.2.A. Explain which level of government is competent to adopt the norms of transposition. Please include your answer in the tables below LEGISLATIVE RULES COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: REGULATIONS COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: CIRCULAR OR INSTRUCTIONS COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: Q.2.B. In case, explain if the federal structure and the distribution of competences between the different levels pose any problem or difficulty regarding the transposition and/or the implementation of the directive. NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 434

7 Q.3. Explain which authorities are competent for the practical implementation of the norm of transposition by taking the decisions in individual cases. Please use one table per competence concerned and duplicate it if necessary COMPETENCE CONCERNED: Taking decisions on issuing of residence permits on ground of family tie CENTRAL MINISTRY Ministry of Interior OF: DIRECTION OR - SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF Directorate of Immigration ADMINISTRATION: IF NECESSARY, The Directorate of Immigration that is subordinated to the COMMENT ABOUT Ministry of the Interior is entrusted with the competence to take THE NATURE OF decisions on residence permits. The Ministry of Interior may guide THE AUTHORITY the work of the Directorate at general level but cannot interfere in (for instance if it is decision making in individual cases. independent of the competent minister) COMPETENCE Issuing extended and permanent residence permits. CONCERNED: CENTRAL MINISTRY Ministry of Interior OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF Municipal police ADMINISTRATION IF NECESSARY The Ministry of Interior may guide the municipal police at a COMMENT ON THE general level but may not interfere in decision-making in NATURE OF THE individual cases. AUTHORITY (for instance if it is independent of the competent ministry) Q.4. A. Has the main regulation foreseen explicitly by the main norm of transposition already been adopted or not: -The main norm of transposition does not foresee a regulation. YES NO NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 435

8 Q.4.B. If the main norm(s) of transposition foresees the adoption of one or several regulations, indicate if they have all been adopted: YES NO If NO, please indicate the missing text(s) in the table below Please use one line per missing text and duplicate it if necessary MISSING TEXTS INDICATE HERE THE MISSING TEXTS Add if necessary some explanations (specify in particular if the missing texts are at least under preparation or foreseen in the very near future): NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 436

9 SECOND PART AIM (ARTICLE 1) The purpose of the Directive is to determine the conditions for the exercise of the right to family reunification. In case C-540/03, the Court of justice recognizes that, in some cases, member States do not have any margin of appreciation to grant the right to family reunification. Q.5 Is family reunification considered as a right in your Member State? x Please explain According to 45 (3) of the Aliens Act 301/2004: "Family members of an alien who has been issued with a temporary residence permit are issued with a temporary residence permit for the same period." Furthermore, according to 47 (3) of the Aliens Act 301/2004: "Family members of an alien who has been issued with a continuous or permanent residence permit are issued with a continuous residence permit." No discretion is left for the authorities in this respect; when the preconditions for family reunification are met, the residence permit on this ground shall be issued and thus family reunification is regarded as a right. It is, however, argued by the Finnish Red Cross and the Refugee Advice Centre that the preconditions for using the right to family reunification are applied in practice very strictly and thus the persons concerned face problems in realising this right. For example DNA-testing is used very widely to establish the biological kinship in cases where no official documents are available. Q.5. A Are there any figures available relating to the exercise of the right to family reunification between 2002 and 2006? If yes, what are the trends, including nationality assessment? DEFINITIONS (ARTICLE 2) SCOPE (ARTICLE 3) -No covering figures are available. According to the Directorate of Immigration, in residence permits on ground of family tie were issued. The most important countries were Russia, Iraq, India, Serbia Montenegro and Somalia. The scope of the Directive is defined by article 3. We recall that: - 1 "reasonable prospect " aims at excluding persons residing on a temporary basis (stagiaires, etc ) NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 437

10 - European citizens are excluded ( 3) - Comparison with existing legislation is of importance so as to assess the added value of the harmonization process ( 5) Q.6. Period of validity of the sponsor s residence permit: Q.6. A. Is the period of validity of the sponsor s residence permit of one year or more according to article 3 1 of the Directive? X Q.6.B. Quote precisely the period enshrined in national law: -According to subsections 1, 2 and 3 of section 53 of the Aliens Act 301/2004: "First fixed term residence permits are issued for one year, however, for no longer than the validity period for the travel document, unless requested for a shorter period. If a residence permit is issued on the basis of family ties, the validity period for the residence permit must not, however, exceed the validity period for the family member's residence permit which was the basis for issuing the residence permit. A residence permit may be issued for a period longer or shorter than one year if it is issued for carrying out a legal act, an assignment or studies that will be completed within a set period. However, the duration of a fixed-term residence permit must not exceed two years." Thus, according to the main rule the period of validity of the sponsor's residence permit is one year, but it can be shorter or longer than that, too. Under the national legislation the right to family reunification is not conditional upon the duration of the sponsor's residence permit; family reunification is permitted also in most cases where the sponsor resides in Finland by virtue of a temporary residence permit and for a period shorter than one year. Q.6.C. How does your Member State translate in national law the requirement for the sponsor to have "reasonable prospects of obtaining the right of permanent residence" (a 3 1)? -This requirement is not explicitly translated to national legislation; it is, however, regarded to be contained implicitly in the national provisions concerning family reunification of persons residing in the country by virtue a continuous residence permit. According to section 33 of the Aliens Act 301/2004, residence permits are either fixed-term or permanent. Fixed-term residence permits are issued for a residence of temporary nature (temporary residence permit) or of continuous nature (continuous residence permit). Permit authorities decide on the purpose of residence, taking account of the information given by the alien on the purpose of his or her entry into the country. Temporary permits are issued for example to students and to persons NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 438

11 working on a temporary basis. According to section 56 of the Aliens Act, a person who resides in Finland by virtue of a continuous fixed-term residence permit shall be issued with a permanent residence permit after four years of residence in the country. Those who reside in the country by virtue of a continuous residence permit are regarded as persons who have reasonable prospects of obtaining the right of permanent residence". However, according to the national legislation, the right to family reunification is not restricted to cases where the sponsor resides in the country by virtue of a continuous residence permit and is thus regarded to have "reasonable prospects of obtaining the right to permanent residence". With certain exceptions, the family members of sponsors residing in Finland by virtue of temporary permit are entitled to family reunification under same conditions as family members of sponsors residing in Finland by virtue of continuous permit. These situations are, however, not regarded to fall within the scope of application of the Directive. Q.7. Members of the family concerned: Q7. A. Are they third country nationals as required by article 3 1 of the Directive? x If not, explain -According to the main rule, the national provisions that implement the provisions of the Directive apply to cases involving third country nationals as required by Article 3.1. of the Directive. However, under exceptional circumstances the national provisions implementing the provisions of the Directive are applied to family members of EU citizens, as well. This is so, because the general rules on family reunification, including those that transpose the provisions of the Directive, shall, according to section 153 of the Aliens Act, be applied to cases involving family members of Union citizens if the persons concerned do not meet the requirements laid down for the free movement of Union citizens (for example the requirement concerning secure income, or in case of third country national family members the requirement of previous legal residence in another Member State). EU citizens and others who are excluded from the scope of the Directive are not able to appeal directly to the provisions of the Directive, but they can appeal to the national provisions that transpose the Directive, as the scope of application of the national rules is not limited in the same way as the scope of application of the provisions of the Directive is. Q.7.B. How has your Member State translated in national law the wording of "whatever status included in article 3 1 of the Directive? This is not adopted in the national law. NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 439

12 Q.8 Did the transposition of the Directive in your Member state breached provisions of international law more favourable to individuals (a 3 4)? x Q.9 If yes, are those provisions based on: Q.9.A - Bilateral and multilateral agreements between the Community or the Community and its Member States, on the one hand, and third countries, on the other? Specify which provisions Q.9.B - The European Social Charter of 18 October 1961 (a 3 4)? Specify which provisions Q.9.C. The amended European Social Charter of 3 May 1987 (a 3 4)? Specify which provisions Q.9.D. The European Convention on the legal status of migrant workers of 24 November 1977 (a 3 4)? Specify which provisions Q.10 Does the transposition of the Directive affect national provisions more favourable to individuals (a 3 5)? x If yes, please specify which provisions NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 440

13 BENEFICIARIES (ARTICLE 4) Article 4 of the Directive contains numerous "may clauses". It is therefore important to pay attention on the way Member States use them and on the legal modalities adopted thereof. Article 4 1 a) and b) enacts a right to family reunification for some members of the sponsor's family. The Member State does not have any margin of discretion regarding those persons. Article 4 1 last indent foresee one derogation regarding child over 12 years on the basis of an integration criterion. This is one of the most sensitive questions encompassed by the directive beside the issue of the limit of age in 6. Regarding article 4 6, the Court states ""It does not matter that the final sentence of the contested provision provides that the Member States which decide to apply the derogation are to authorise the entry and residence of children in respect of whom an application is submitted after they have reached 15 years of age on grounds other than family reunification. The term family reunification must be interpreted in the context of the Directive as referring to family reunification in the cases where family reunification is required by the Directive. It cannot be interpreted as prohibiting a Member State which has applied the derogation from authorising the entry and residence of a child in order to enable the child to join his or her parents". (cons. 86) The Court adds " Article 4(6) of the Directive must, moreover, be read in the light of the principles set out in Article 5(5) thereof, which requires the Member States to have due regard to the best interests of minor children, and in Article 17, which requires them to take account of a number of factors, one of which is the person s family relationships" (cons. 87) Q.11 Does your national law recognize the right to family reunification to: Q.11. A The sponsor's spouse (a. 4 1 a)? x Q.11. B - Minor children of the sponsor and of his/her spouse (a. 4 1 b)? x Q.11.C. Minor children adopted of the sponsor and of his/her spouse (a. 4 1 b)? x NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 441

14 Q.11.D. Minor children of the sponsor (a. 4 1 c)? x Q.11. E. If yes, does your national law foresee that the sponsor shall have children custody and children are dependant on him or her? x -According to 37 of the Aliens Act unmarried children under 18 years of age over whom the person residing in Finland or her spouse had guardianship are considered family members. No other criteria for the dependency are laid down than that the child has to be unmarried. Married children are not regarded as dependent. The biological parent is regarded to hold the custody unless there are grounds indicating to the contrary. The relationship between the parent and the child has to be real and efficient, and the mere formal custody is not necessarily a sufficient link for family reunification. Specify if necessary the proofs required -According to the Guidelines given by the Directorate of Immigration concerning the application of the provisions of the Aliens Act (301/2004) that concern residence permits on ground of family tie (hereafter Guidelines on family reunification), documents such as the following should be presented if available: the birth certificate concerning the child; if the biological parents have divorced or one of them has died, a certificate of the divorce or a death certificate; and an official document (for example a court order) indicating that the sponsor holds custody. If such documents are not available, oral proof and other such information is required and DNA-tests may be used. Q.11 F. Minor children adopted of the sponsor (a 4 1.c)? x Q.11. G. If yes: h. does your national law foresee that the sponsor shall have children custody and children are dependant on him or her? x --According to 37 of the Aliens Act unmarried children under 18 years of age over whom the person residing in Finland or her spouse had guardianship are considered family members. No other criteria for the dependency are explicitly laid down than that the child has to be unmarried. Married children are not NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 442

15 regarded as dependent. The biological parent is regarded to hold the custody unless there are grounds indicating to the contrary. The relationship between the parent and the child has to be real and efficient, and the mere formal custody is not necessarily a sufficient link for family reunification. Specify if necessary the proofs required -According to the Guidelines on family reunification documents such as the following should be presented if available: the birth certificate concerning the child; certificate of the adoption; in case the adoptive parents have divorced or one of them has died, a certificate of the divorce or a death certificate; and an official document (for example a court order) indicating that the sponsor holds custody. If such documents are not available, oral proof and other such information is required. g.g. Does national law provide that those children shall be adopted "in accordance with a decision taken by the competent authority in the Member State concerned or a decision which is automatically enforceable due to international obligations of that Member State or must be recognised in accordance with international obligations' x Specify if necessary the proofs required -Such formal requirement is not laid down in the national law. According to the Guidelines on family reunification, the certificate on the adoption has to be presented if such is available but if a certificate is not available, other proof shall be required. It is stated in the Guidelines that in some states no formal decisions on adoption are taken and in such cases no official certificates on adoption can be required. Furthermore, according to the Guidelines, foster children, too, may be regarded as family members and as such entitled to family reunification. In this kind of cases official documents don't normally exist. In Finland rather large number of cases of family reunification involves refugees and others who receive international protection and it is rather common that official documents are thus not available. Q.11. H. Minor children of the spouse (a 4 1.d.)? x NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 443

16 Q.11. I. If yes, does your national law foresee that the spouse shall have children custody and children are dependant on him or her? x - -According to 37 of the Aliens Act unmarried children under 18 years of age over whom the person residing in Finland or her spouse had guardianship are considered family members. No other criteria for the dependency are explicitly laid down in the Act than that the child has to be unmarried. Married children are not regarded as dependent. The biological parent is regarded to hold the custody unless there are grounds indicating to the contrary. The relationship between the parent and the child has to be real and efficient, and the mere formal custody is not necessarily a sufficient link for family reunification. Specify if necessary the proofs required -According to the Guidelines on family reunification, documents such as the following should be presented if such are available: the birth certificate concerning the child; in case the biological parents have divorced or one of them has died, a certificate of the divorce or a death certificate and an official document (for example a court order) indicating that the sponsor holds custody. If such documents are not available, oral proof and other such information is required and DNA-testing may be used. Q.11. J. Minor children adopted of the spouse (a 4 1.d )? x Q.11. K. If yes, k. Does your national law foresee that the spouse shall have children custody and children are dependant on him or her? x - -According to 37 of the Aliens Act unmarried children under 18 years of age over whom the person residing in Finland or her spouse had guardianship are considered family members. No other criteria for the dependency are laid explicitly down in the Act than that the child has to be unmarried. Married children are not regarded as dependent. The biological parent is regarded to hold the custody unless there are grounds indicating to the contrary. The relationship between the parent and the child has to be real and efficient, and the mere formal custody is not necessarily a sufficient link for family reunification. NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 444

17 Specify if necessary the proofs required -According to the Guidelines on family reunification, documents such as the following should be presented if available: the birth certificate concerning the child; certificate of the adoption; in case the adoptive parents have divorced or one of them has died, a certificate of the divorce or a death certificate; and an official document (for example a court order) indicating that the sponsor holds custody. If such documents are not available, oral proof and other such information is required. k.k. Does national law provide that those children shall be adopted "in accordance with a decision taken by the competent authority in the Member State concerned or a decision which is automatically enforceable due to international obligations of that Member State or must be recognised in accordance with international obligations'"? x Specify if necessary the proofs required - Such formal requirement is not laid down in the national law. According to the Guidelines on family reunification, the certificate on the adoption has to be presented if such is available but if such certificate is not available, other proof of the adoption shall be required. It is stated in the Guidelines on family reunification, that in some states no formal decisions on adoption are taken and therefore no official certificates on adoption can be required. According to the guidelines, foster children, too, may be regarded as family members and as such entitled to family reunification. For these cases it is typical that no official documents are available. Q.12 Has your Member State transposed the option opened by article 4 1 c: Q.12A. To authorise reunification of minor children of the sponsor including also adopted children of whom custody is shared (a 4 1.c)? x Specify if necessary Q.12.B. If yes, has your legislation transposed the condition that the other party sharing custody has given his or her agreement (a 4 1. c)? x NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 445

18 Specify if necessary -According to the Guidelines on family reunification, the agreement has to be given in writing and it has to be officially certified. Alternatively, the other party can be heard orally on the matter. If her whereabouts is unknown and therefore a written agreement cannot be obtained and she cannot be heard orally, a court order shall be required. Q.13 Has your Member State transposed the option opened by article 4 1 d): Q.13.A. to authorise reunification of minor children of the spouse including also adopted children of whom custody is shared (a 4.1.d. in fine)? x Specify if necessary Q.13 B. If yes, has your legislation transposed the condition that the other party sharing custody has given his or her agreement (a 4. 1.d)? x Specify if necessary -According to the Guidelines on family reunification, the agreement has to be given in writing and it has to be officially certified. Alternatively, the other party can be heard orally on the matter. If her whereabouts is unknown and therefore a written agreement cannot be obtained and the she cannot be heard orally, a court order shall be required. Q.14 In any case referred to in questions 7 to 9, is the age of the minor children below the age of majority set up by the law of your Member State (a.4 1, second indent)? x If yes, indicate the age required Q.15 In any case referred to in questions 7 to 9, has the prohibition of marriage of minor children been transposed (a.4 1, second indent)? x NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 446

19 If not, explain Si non, expliquez Q.16 Is the derogation set up in article 4 1 last indent relating to the conditions for integration of children over 12 years arrived independently from the rest of the family used by your Member State? x How the criterion "arrives independently from the rest of his/her family" has been transposed in your national legislation? Q.17 If yes, did this integration condition already exist in your national legislation before the date of transposition of the Directive? Q.18 Describe briefly the content of this condition, the date of its creation and the conditions of its examination Q.19 Are the children of refugees required to an integration test by your Member State (in contradiction with article 10 1)? x If yes, explain Q.20 Does your Member State authorise: Q.20 A Reunification of first-degree relatives in the direct ascending line of the sponsor (a 4 2 a)? x -Family reunification is not authorised in this kind of case. However, a residence permit on one of the following grounds may come into question. According to 45 (1) (4) of the Aliens Act a temporary residence permit is issued to a person residing abroad if there are special reasons for it. Furthermore, according to 49 (1) (4) of the Aliens Act, an alien who has entered Finland without a residence permit is issued with a temporary or continuous residence permit in Finland if the requirements for issuing such permit abroad are met and if refusing a residence permit would be manifestly unreasonable. According to 52 of the Aliens Act aliens residing in Finland are issued with a continuous residence permit if refusing a residence permit would be manifestly unreasonable with regard to their health, ties to Finland or NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 447

20 on other compassionate grounds, particularly in consideration of their circumstances they would face in their home country or of their vulnerable position. Q.20 B If yes, shall they be dependant and not enjoy proper family support in the country of origin? How each of those criterions is transposed and checked? Q. 20.C. Reunification of first-degree relatives in the direct ascending line of the spouse (a 4 2 a)? x -Family reunification is not authorised in this kind of case. However, a residence permit on one of the following grounds may come into question. According to 45 (1) (4) of the Aliens Act a temporary residence permit is issued to a person residing abroad if there are special reasons for it. Furthermore, according to 49 (1) (4) of the Aliens Act, an alien who has entered Finland without a residence permit is issued with a temporary or continuous residence permit in Finland if the requirements for issuing such permit abroad are met and if refusing a residence permit would be manifestly unreasonable. According to 52 of the Aliens Act aliens residing in Finland are issued with a continuous residence permit if refusing a residence permit would be manifestly unreasonable with regard to their health, ties to Finland or on other compassionate grounds, particularly in consideration of their circumstances they would face in their home country or of their vulnerable position. Q.20.D. If yes, shall they be dependant and not enjoy proper family support in the country of origin? How each of those criterions is transposed and checked? Q.20.E. Reunification of adult unmarried children of the sponsor? (a 4 2 b)? x NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 448

21 If necessary, explain how this procedure is organised --Family reunification is not authorised in this kind of case. However, a residence permit on one of the following grounds may come into question. According to 45 (1) (4) of the Aliens Act a temporary residence permit is issued to a person residing abroad if there are special reasons for it. Furthermore, according to 49 (1) (4) of the Aliens Act, an alien who has entered Finland without a residence permit is issued with a temporary or continuous residence permit in Finland if the requirements for issuing such permit abroad are met and if refusing a residence permit would be manifestly unreasonable. According to 52 of the Aliens Act aliens residing in Finland are issued with a continuous residence permit if refusing a residence permit would be manifestly unreasonable with regard to their health, ties to Finland or on other compassionate grounds, particularly in consideration of their circumstances they would face in their home country or of their vulnerable position. Q.20.F. If yes, does the national legislation impose that those adult unmarried children of the sponsor are objectively unable to provide for their own needs on account of their state of health (a 4 2 b)? x If necessary, specify how each of those criterions ("objectively" and "unable to provide for their own needs") is transposed and checked? Q.20. G. Does your Member State authorise reunification of adult unmarried children of the spouse (a 4 2 b)? x If necessary, specify how this condition is assessed -Family reunification is not authorised in this kind of case. However, a residence permit on one of the following grounds may come into question. According to 45 (1) (4) of the Aliens Act a temporary residence permit is issued to a person residing abroad if there are special reasons for it. Furthermore, according to 49 (1) (4) of the Aliens Act, an alien who has entered Finland without a residence permit is issued with a temporary or continuous residence permit in Finland if the requirements for issuing such permit abroad are met and if refusing a residence permit would be manifestly unreasonable. According to 52 of the Aliens Act aliens residing in Finland are issued with a continuous residence permit if refusing a residence permit would be manifestly unreasonable with regard to their health, ties to Finland or on other compassionate grounds, particularly in consideration of their circumstances they would face in their home country or of their vulnerable position. NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 449

22 Q.20.H. If yes, does the national legislation impose that those adult unmarried children of the sponsor are objectively unable to provide for their own needs on account of their state of health (a 4 2 b)? If necessary, specify how each of those criterions ("objectively" and "unable to provide for their own needs") is transposed and checked? Q.20. I. Did your Member state use the by law or regulation norms to implement article 4 2 a et b? x Q.21 Does your Member State authorise reunification of the unmarried partner of the sponsor, being a third country national (a 4 3)? x Q.22 If yes: Q.22 A This partnership shall be based on a duly attested stable long term relationship? x If yes, specify how your Member State assess this situation -According to subsection 2 of section 37 of the Aliens Act: Persons living continuously in a marriage-like relationship within the same household regardless of their sex are comparable to a married couple. The requirement is that they have lived together for at least two years. This is not required if the persons have a child in their joint custody or if there is some other weighty reason for it. Q.22 B This partnership shall be registered? x NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 450

23 Q.23 Does your national law consider the registered partner as the husband/spouse (a 4 3 alinéa 2)? x Q.24 Does your Member State authorise: Q.24. A Reunification of minor children of the partner, including adopted children (a 4 3)? x Q. 24. B Reunification of adult unmarried children of the partner, including adopted children (a 4 3)? x -Family reunification is not authorised in this kind of case. However, a residence permit on one of the following grounds may come into question. According to 45 (1) (4) of the Aliens Act a temporary residence permit is issued to a person residing abroad if there are special reasons for it. Furthermore, according to 49 (1) (4) of the Aliens Act, an alien who has entered Finland without a residence permit is issued with a temporary or continuous residence permit in Finland if the requirements for issuing such permit abroad are met and if refusing a residence permit would be manifestly unreasonable. According to 52 of the Aliens Act aliens residing in Finland are issued with a continuous residence permit if refusing a residence permit would be manifestly unreasonable with regard to their health, ties to Finland or on other compassionate grounds, particularly in consideration of their circumstances they would face in their home country or of their vulnerable position. Q.25 Does your Member State allow reunification of adult unmarried children who are objectively unable to provide for their own needs on account of their state of health (a 4 3)? x -Family reunification is not authorised in this kind of case. However, a residence permit on one of the following grounds may come into question. According to 45 (1) (4) of the Aliens Act a temporary residence permit is issued to a person residing abroad if there are special reasons for it. Furthermore, according to 49 (1) (4) of the Aliens Act, an alien who has NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 451

24 entered Finland without a residence permit is issued with a temporary or continuous residence permit in Finland if the requirements for issuing such permit abroad are met and if refusing a residence permit would be manifestly unreasonable. According to 52 of the Aliens Act aliens residing in Finland are issued with a continuous residence permit if refusing a residence permit would be manifestly unreasonable with regard to their health, ties to Finland or on other compassionate grounds, particularly in consideration of their circumstances they would face in their home country or of their vulnerable position. If yes, specify how the conditions, and more particularly the "objectivity", are assessed. Q.26 Did your Member state use the by law or regulation norms to implement article 4 3? -The rule according to which persons living continuously in a married-like relationship and registered partners are comparable to a married couple was laid down in section 37 of the Aliens Act already before the formal implementation of the Directive.. Q.27 Is the prohibition of polygamous marriage enshrined in your national legislation (a. 4 4)? x Q.28 Does your Member State limit family reunification of minor children of a further spouse and the sponsor (article 4 4 dernier alinéa,)? x Q.29 Does your Member State use the option set up by article 4 5 requiring the sponsor and his/her spouse to be of a minimum age of 21 years old before reunification? x Q.30 If yes, Q.30 A What is the age required? Q.30 B Is the derogation founded on integration criteria and/or prevention of forced marriage? NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 452

25 Q.31 Does your Member State use the derogation of article 4 6 by requesting that the applications concerning family reunification of minor children have to be submitted before the age of 15? Explain x Q.32 If yes, was it provided by existing legislation on the date of implementation of the directive? Q.33 If the application is not introduced before the age of 15, do Member States authorise entry and residence on grounds other than family reunification? Which grounds and which conditions? PROCEDURE (ARTICLE 5) We draw attention on the major importance given by the Court of justice regarding 5 relating to the best interest of minor children. Q.34 Did your Member State institute a procedure regarding family reunification (a 5 1)? x Q.35 If yes, Q.35. A Which authorities are in charge of this issue? -The procedure for issuing residence permits on ground of family tie is regulated by the Aliens Act (Ulkomaalaislaki 301/2004) and the Administration Act (Hallintolaki 434/2003) as well as the Act on Judicial Procedures in Administrative Matters (Hallintolainkäyttölaki 586/1996). This procedure existed already before the formal implementation of the Directive. The Directorate of Immigration is the first-instance decision making body regarding applications for residence permits, including residence permits on ground of family reunification. In case of negative decision, it is possible to appeal to an administrative court and further to the Supreme Administrative Court if the Supreme Administrative Court gives leave to appeal. NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 453

26 Q.35. B Are NGO's associated to this procedure? x If yes, describe the procedure -NGO's are not associated in this procedure formally. However, the Refugee Advice Centre may provide the applicants with councelling and free legal aid. Q.35. C Is the application submitted by the sponsor or by family members? The application may be lodged either by the family member or the sponsor. According to subsection 1 of section 62 of the Aliens Act: An alien who does not have a residence permit (applicant) may apply for a residence permit abroad on the ground of family tie by filing an application with a Finnish mission, or a sponsor may initiate the procedure by filing an application with the municipal police. Q.35. D Is this procedure exclusive from other possibilities to grant family reunification? x If other procedural possibilities exist, please describe them -A claim for family reunification may come up in any residence permit procedure including asylum procedures, and when such claim is made it has to be assessed by the auhtorities. When processing applications for a residence permit the Directorate of Immigration is obliged to take into account and assess all possible grounds for issuing a permit. For example, when processing an application for a residence permit on ground of need for international protection, the Directorate of Immigration has to assess in this same procedure the possible claim for family reunification, as well, and issue the applicant with the permit if the preconditions for that are met. Q. 35. E Was this procedure existing before the adoption of Directive 2003/86? x NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 454

27 Q.36 Which documentary evidence are required to prove (a 5 2): Q.36. A Family relationships according to article 4? -According to the Guidelines on family reunification the following documents shall be required: In case of married partners: -A form concerning information on the family relationship. -A photocopy of the applicant s and the sponsor s passport or other travel document, or if the person concerned does not have a passport or a travel document, a photocopy of her identity document. -Marriage certificate and certificate of the registration of the marriage in the country of origin if such certificates are issued. If the marriage is concluded in religious ceremony, information on that, too, should be provided. -Certificate of divorce or death certificate if the previous marriage has terminated or if the former spouse has died. -Proof concerning secure income if secure income is a condition for issuing the residence permit. -Information on the previous trips to Finland and possible previous visas and residence permits to Finland. -Extracts from the criminal record concerning the applicant and the sponsor. In case of cohabiting partners: -The same documents as in case of married partners except documents concerning marriage. -Official documents indicating that the persons concerned have lived together at least for two years (for example the rent contract) -Documents concerning the joint custody of a child. In case of registered partners: -The same documents as in case of married partners except documents concerning the marriage. -Certificate of the registration of the partnership. In case of minor children: -A form concerning information on the family relationship. -A photocopy of the applicant s and the sponsor s passport or other travel document, or if the person concerned does not have a passport or a travel document, a photocopy of her identity document. -Birth certificate that contains information on the parents. -Certificate or proof on adoption if such is relevant in the case. -In case of a child born outside marriage, certificate on paternity. -Death certificate in case one or both of the parents have died. -Divorce certificate in case the parents have divorced. -Proof on custody (for example a court order). -If the child is in joint custody, a written and officially certified statement from the other parent indicating that the parent allows the child to move to Finland. Alternatively the other parent can be heard orally. If the written and officially certified statement cannot be received and the parent cannot be heard, a court decision shall be required. NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 455

28 -Information on earlier trips to Finland including information on possible previous visas and residence permits. -Information on income in cases where secure income is required. -Extracts from the criminal record concerning the applicant and the sponsor. As these requirements are laid down in administrative guidelines, they do not create legally binding obligations upon individuals. If the required documents cannot be presented for reasons such as the documents don t exist or cannot be received from the country of origin, other proof may be presented instead. Furthermore, in case of lack of documents, the significance of the oral hearing of the applicant and the sponsor is emphasised. Furthermore, DNA testing may be used in order to prove the biological kinship. The documents do not have to be certified if certified documents cannot be obtained. Q.36. B Accommodation conditions laid down in article 7? The accommodation condition is not applied in Finland. Q.36. C Sickness insurance conditions? The sickness insurance is not required. Persons falling within the ambit of this Directive reside are issued with a continuous residence permit and those residing in Finland by virtue of a continuous residence permit are covered by the public health care system. Q.36. D Certified copies of family member(s)' travel documents? -Copies of family member s travel documents should be provided. It is however not required that they are certified. Q.37 Is the possibility foreseen to proceed to: Interviews: X Investigations: X If yes, describe them briefly -Section 64 of the Aliens Act concern oral hearing. According to this provision: "When applying for a residence permit on the basis of family ties, the applicant, sponsor or other relative may be heard orally to establish whether the requirements for entry or for a residence permit are met. NATIONAL REPORTS- - DIRECTIVE ON FAMILY REUNIFICATION 456