17/06/2021
On June 4th, 2021, Suomen Kuvalehti published an article on the Finnish residence permit application process. Increasingly, the Finnish Immigration Service, in its negative decisions, invokes the evasion of the provisions on entry into or residence in the country under the Aliens Act Section 36(2). The law has not changed extensively, but in cases where the applicant has previously been granted a residence permit, it is now refused because the decisions are grounded on the evasion of the entry rules. Suspicions of sham marriages, for instance, are considered evasion of entry provisions. In these so-called sham marriage cases, the Finnish Immigration Service has held that the couple is formally married but is not genuinely together to spend family life. If the parties requested an oral hearing, the court had to assess at the hearing whether the couple was genuinely together. Nowadays, the Finnish Immigration Service considers the partners as genuine family members but believes that the applicant’s actual intent is not to spend family life together in Finland. This new interpretation of the Finnish Immigration Service is contradictory in content. In addition, the courts no longer arrange an oral hearing to examine family life because of this interpretation by the Finnish Immigration Service.
Furthermore, a residence permit application may be rejected on the grounds of evasion of the entry rules in situations where the applicant has previously received two negative decisions on their application of asylum, as a result of which the Finnish Immigration Service has ordered for the applicant an entry ban covering the Schengen area. The entry ban will not take effect until the applicant leaves the country. When an applicant subsequently applies for a residence permit, for example, based on employment or family ties and after having resided permissibly in the country for years, this previously ordered entry ban is considered a ground for refusing the permit, based on evasion of the entry rules. In fact, a person who has developed strong ties to Finland during the years-long process may be denied admittance or stay or deported to their country of origin. Del Gaudio believes that an overall assessment should be made in such cases, taking into account the human and fundamental rights obligations that bind Finland.
In residence permit cases, court decisions have also been less frequently positive. In 2016, the Supreme Administrative Court ruled for the first time on the weight of the public interest in immigration management. In most cases, public order and security are weighed against either the protection of family life, the child’s best interest, or the employment relationship. In the Suomen Kuvalehti article, Kaj Swanljung, the Director of the Permit and Nationality Unit, has commented that the weight of immigration management may not have increased. Still, through the decisions of the Supreme Administrative Court, its applicability has been better limited, affecting the overall evaluation. According to Del Gaudio, however, it must be borne in mind that Finland has received judgments from, inter alia, the UN Committee on the Rights of the Child (CRC/C/86/D/51/2018 on the best interests of the child) and the European Court of Human Rights (25244/18 on deportation) considering residence permit cases. Guidelines of such judgments and international obligations should be equally applied and taken into account in the Finnish Immigration Service and the Finnish courts. Del Gaudio believes that courts should apply the principle of a human rights-friendly interpretation of the law and act as ultimate protectors of fundamental human rights instead of leaving it to individual attorneys.