Go to:
• Section A General questions
• Section B Questions on specific provisions
• Section C Final questions
• Section D Table on transposition

The Finnish text of the Aliens Act 301/2004 can be found at www.finlex.fi and the English text at www.uvi.fi. The Finnish version of the text of the Act is updated and therefore contains the amendments made by the Act 380/2006 amending the Aliens Act.

The Government Proposal to the Parliament for the Aliens Act and certain acts related to that HE 28/2003 (Hallituksen esitys eduskunnalle ulkomaalaislaiksi ja eraiksi siihen liittyviksi laeiksi HE 28/2003) (hereafter Government Proposal 28/2003) can be found at HE 28/2003 and the Proposal of Government to the Parliament for the Act amending the Aliens Act HE 198/2005 (Hallituksen esitys eduskunnalle laiksi ulkomaalaislain muuttamisesta HE 198/2005) (hereafter Government Proposal 198/2005) at HE 198/2005.

During the general reform of the Aliens Act in 2004 when the changes of national legislation caused by the Directive were already anticipated, other questions such as the labour migration and international protection attracted more public and political attention than the question of the family reunification. Likewise, the adoption of the Act 380/2006 did not cause public debate.

The definition of 'family member' as laid down in 37 § of the Aliens Act 301/2004 was amended by the Act 380/2006; now also unmarried children under 18 years of age whose parent or guardian the spouse of the person residing in Finland is, are regarded as family members. Previously the spouse's children were not included in the notion of 'family member' and thus this amendment made the national rules more liberal.

A new provision on family member's autonomous residence permit was added by the Act 380/2006 in 56 § the Aliens Act 301/2004. This amendment made the national rules more liberal. There appears, however, to be a discrepancy between the national rules and the Directive in this respect; under the Directive a family member is in this kind of situations entitled to a residence permit whereas the Aliens Act leaves the authoritie with discretion in this respect as according to 56 (2) § a person concerned may be issued with a residence permit.

According to 69 (a) § of the Aliens Act 301/2004 as amended by the Act 380/2006, the decision on residence permit on grounds of family tie shall be served to the applicant within nine months of the day when the application was lodged. Under exceptional circumstances the decision can be served later than that. Previously such a time limit was not set in the Act. In 2005 the average time of handling the applications was nine months in cases involving persons receiving international protection and three months in other cases. It can be argued that this change made the national rules more liberal as now the decision making can take more than nine months only under exceptional circumstances.

According to 79 § of the Aliens Act 301/2004 as amended by the Act 380/2006, all family members have right to gainful employment. This amendment made the national rules more liberal as previously the right to work was more restrictive.

According to 33 § of the Aliens Act 301/2004:
'Types of residence permits. 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 authoritie 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. Permanent residence permits are valid until further notice.'

According to 56 § of the Aliens Act a person who resides in Finland by virtue of a continuous 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' as after four years residence they shall be issued with a permanent residence permit. In case of continuous residence permit the persons concerned have, provided that the conditions for that are met, a right to family reunification.

It is, however, important to note that under the Finnish Aliens Act the right to family reunification is not limited to the family members of those residing in the country by virtue of a continuous residence permit; a residence permit on grounds of a family tie shall be issued in most cases where the sponsor resides in the country by virtue of a temporary residence permit, as well. The Aliens Act does not differentiate between the cases of continuous residence and temporary residence in this respect and thus also those provisions of the Act that are based on the provisions of the Directive shall be applied in cases of temporary residence where family reunification is allowed.

According to 50 (1) § of the Aliens Act 301/2004: 'Family members of Finnish citizens living in Finland, and minor unmarried children of the family members, are issued with a continuous residence permit on the basis of family tie upon application filed in Finland or abroad.' Thus, in case of family members of Finnish citizens the application for residence permit can be lodged after entering in Finland. In the other cases the permit has, according to the main rule, to be applied and received before the family member enters the country. There are, however, exceptions to this main rule. One of these exceptions is laid down in 49 (1) (2) § of the Aliens Act 301/2004, according to which an alien who has entered Finland without a residence permit is issued with a permit if the requirements for issuing a residence permit abroad are met – for example the person concerned does not jeopardize public order and security or public health – and if the alien has already before entering Finland lived together with his or her married spouse who lives in Finland, or has continuously lived together for at least two years in the same household in a marriage-like relationship with a person who lives in Finland. According to the Government Proposal 28/2004 this provision should be applied only in exceptional circumstances.

Furthermore, according to 50 (4) § of the Aliens Act 301/2004, issuing a residence permit to a third country national family member of a Finnish citizen does not require that the alien has secured means of support. In the other cases the requirement of secured income is, according to the main rule, applied. There are, however, exceptions to this main rule. The requirement of secure income is not applied, for example, in cases concerning Ingrian Finns and where the sponsor receives international protection, including subsidiary and temporary protection. Furthermore, according to 39 (1) § of the Act 301/2004, an exception may be made from the requirement for means of support in individual cases if there are exceptionally weighty reasons for that, or if the exemption is in the best interest of a child.

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.'

Thus, when the preconditions for granting a residence permit on ground of family tie laid down in the Aliens Act are met, the authoritie are under obligation to issue the residence permit on ground of family tie and to allow the entry and residence of the family member.

The Aliens Act does not specify what kind of documentary evidence the applicant should present to the authoritie. This is left to be defined according to the situation at hands. The Guidelines given by the Directorate of Immigration on family reunification requires that the following documents shall be required: In case of married partners:

• A filled 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.

• The same documents as in case of married partners except documents concerning the 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.

• The same documents as in case of married partners except documents concerning the marriage.
• Certificate of the registration of the partnership.

• A filled 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.
• 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.
• Information on earlier trips to Finland including information on possible previous visas and residence permits.
• Information on income in cases where secured income is required.
• Extracts from the criminal record concerning the applicant and the sponsor.

According to 62 (2) § of the Alien's Act 301/2004: 'To establish whether the requirements for a residence permit are met, the person mentioned in subsection 1 shall be provided with an opportunity to be heard before a decision is issued on the matter.' The persons mentioned in subsection 1 are the applicant and the sponsor. They both should be heard at least once before taking the decision on the residence permit on ground of family tie. The significance of the right to be heard is emphasised in situations where sufficient documentary evidence is not available as is often the case when the sponsor receives international protection.

However, according to 49 § of the Aliens Act 301/2004:
'An alien who has entered the country without a residence permit is issued with a temporary or continuous residence permit in Finland if the requirements for issuing such a residence permit abroad are met, and if:
...
2. the alien has already, before entering Finland, lived together with his or her married spouse who lives in Finland, or has continuously lived together for at least two years in the same household in a marriage-like relationship with a person who lives in Finland;
...
4. refusing a residence permit would be manifestly unreasonable.'

Thus, in exceptional circumstances and when the conditions laid down in this provision are met, a residence permit may be applied and issued after the family member has entered in Finland. 49 (1) (4) § of the Aliens Act 301/2004 may be applied for example in cases involving minor children and, therefore, minor children can under exceptional circumstances be issued with a residence permit after having already entered the country.

Furthermore, according to 6 § of the Aliens Act 301/2004: 'In any decision issued under this Act that concern a child under eighteen years of age, special attention shall be paid to the best interest of the child and to circumstances related to the child's development and health.

Before a decision that concerns a child who is at least twelve years old is taken, the child shall be heard unless such hearing is manifestly unnecessary. The child's views shall be taken into account in accordance with the child's age and level of development. A younger child my also be heard if the child is sufficiently mature to have his or her views taken into account. Matters concerning minors shall be processed with urgency.'

Of interest in this respect is also 63 § of the Aliens Act 301/2004 that concerns opinions on applications for a residence permit on the basis of family tie, that the Directorate of Immigration or District Police may obtain from the social welfare or health care authoritie. One of the purposes of this provision is to guarantee that the best interest of a child is paid sufficient attention to.

According to this provision:
'The Directorate of Immigration or the District Police may obtain an opinion on an application for a residence permit on the basis of family tie from the social welfare or health care authoritie of the sponsor's domicile or place of residence. An opinion on the sponsor's social situation or health may be requested if the sponsor is an unaccompanied minor, if the applicant is a member of the alien's extended family, or if there is another special reason related to establishing the family's situation.
Notwithstanding any secrecy provisions, social welfare or health care authoritie are obliged to submit in their opinion to the Directorate of Immigration or the District Police referred to in subsection 1, for the purpose of an application for a residence permit on the basis of family tie, any information that they have on the person's social situation or health that is necessary for a decision on issuing a residence permit on the basis of family tie.'

All these provisions were contained in the national legislation already before the implementation of the Directive.

Previously the residence permit on the basis of family tie, too, could be refused on the ground that the alien was considered a danger to Finland's international relations. This provision of the Act 301/2004 was, however, amended in this respect by the Act 380/2006 and now a residence permit on the basis of family tie can no longer be refused on the ground of a danger to Finland's international relations. This amendment brought the Act in line with the requirements following from the Directive.

Furthermore, according to 114 § of the Aliens Act 301/2004 as amended by the Act 380/2006, that lays down the conditions for issuing residence permits to family members of persons who enjoy international or temporary protection:
'A residence permit is issued on the basis of family tie to a family member of a refugee or an alien who has been issued with a residence permit on the basis of a need for protection or who has enjoyed temporary protection if:

1. the sponsor lives in Finland or has been issued with a residence permit for the purpose of moving to Finland; and
2. the applicant is not considered to a danger to public order, security or health.'

In the national legislation the way the public policy exception is formulated in the context of family reunification is not identical with the way it is formulated in the context of free movement of EU citizens. In the context of family reunification, a residence permit may be refused if the alien is considered a danger to public order, security or health. In the context of free movement of EU citizens, the fact that the person concerned does not danger public order and security and public health is formulated as an absolute requirement for issuing a residence permit. It is, however, unclear if this difference in the formulations will have any significance in practice.

It is still too early to estimate whether the administrative and judicial practice concerning what kind of behaviour is considered to jeopardize public order and security and public health in the context of family reunification will take similar forms as in the context of free movement of EU citizens. Previously the interpretation and application of these notions in cases concerning third country citizens has been stricter than that concerning EU Citizens even though the Government Proposal 28/2004 defines the notions similarly in both these contexts.

It is also worth noting that 156 (2) § of the Aliens Act 301/2004 emphasises that preventing an EU citizen's or his or her family member's entry into or removing an alien from the country on grounds of public order and security or public heath shall always be based on the person's own behaviour and not merely on any previous convictions. Similar provision does not apply in cases involving third country nationals. In this case it is, too still early to assess what kind of consequences this has in practice.

An alien's means of support are considered secure at the time when the alien's first residence permit is issued if the alien's residence is financed through gainful employment, pursuit of a trade, pensions, property or income from other sources considered normal so that the alien cannot be expected to become dependent on social assistance as referred to in the Act on Social Assistance (1412/1997) or on other similar benefits to secure his or her means of support. Social security benefits compensating for expenses are not regarded as such a benefit.
When issuing extended permits, the alien's means of support shall be secure as provided in subsection 2, provided, however, that temporary resort to social assistance or other similar benefits securing the alien's means of support does not prevent the issue of the permit.
The applicant shall submit to the authoritie a statement on how his or her means of support will be secured in Finland.'

The Government Proposal 28/2003 further specifies the income requirement. According to the Proposal, the means of support shall be regarded as secure if they suffice to regular standard of living in Finland without a need to avail oneself to social assistance or other such benefits. However, if the person concerned becomes, after entering the country, entitled to social benefits such as parental benefits, the income from this source is not regarded as a ground indicating that the means of support are not secure. The Guidelines given by the Directorate of Immigration 3/010/2004 offers further guiding in applying 39 § of the Aliens Act. The Guidelines defines an indicative level of net monthly income that is 900 euros/month and 10.800 euros/year for the sponsor and 630 euros/month and 7.560 euros/year for the spouse. In case of minor children the indicative level of net monthly income is 450 euros/month and 5.400 euros/year. It is emphasised in the Guidelines that this level of net monthly income is only indicative and that the special situation of the family, such as the number of children, should always be taken into account when assessing whether the income is secure.

According to the Government Proposal 28/2003, in case of residence permit on ground of family tie, the sponsor may present documentary or other evidence of the means of support on behalf of the applicant. The income and possessions of both the sponsor and the applicant shall be taken into account when evaluating whether the income is secure.

The Act on integration of immigrants and reception of asylum seekers (Laki maahanmuuttajien kotouttamisesta ja turvapaikanhakijoiden vastaanotosta 493/1999) covers all migrants including family members and other relatives who are not Finnish citizens. According to the Act on integration, an immigrant who has moved to Finland after the 1st of May 1997, who has been entered in the population data system of her home municipality, and who is eligible for labour market subsidy and/or social assistance, is entitled to a personal integration plan. The participation to integration measures is not compulsory. Subsistence during the plan period is secured with integration assistance. The integration plan is drawn up after the immigrant has been entered in the population register as a permanent resident in Finland. The maximum plan period is three years. The plan is drawn up by the immigrant herself, the employment consultant, and where necessary, a representative of the municipality where the person concerned lives. The integration plan includes an agreement on the measures taken to help the immigrant enter into the Finnish society and working life. These measures include courses in Finnish or Swedish languages. The plan period involves also an assessment on how the qualifications or degrees taken outside Finland can be made to meet the requirements set by Finnish working life and what kind of supplementary training may be needed.

Other family members such as siblings are under Finnish legislation according to the main rule not entitled to residence permit on the ground of family tie. There are, however, exceptions to this main rule. According to 52 (4) § of the Aliens Act 301/2004:
'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 or tie to Finland or another compassionate grounds, particularly in consideration of the circumstances they would face in their home country or of their vulnerable position.
[...]
[...]
If unaccompanied minor children who have entered Finland are issued with a residence permit under subsection 1, their minor siblings residing abroad are issued with a continuous residence permit. A requirement for issuing a residence permit is that the children and their siblings have lived together and that their parents are no longer alive or the parents' whereabouts are unknown. Another requirement for issuing a residence permit is that issuing the permit is in the best interest of the children. Issuing a residence permit does not require that the alien have secured means of support.'

Furthermore, According to 115 § of the Aliens Act:
'Issuing residence permits to other relatives of persons who have enjoyed international or temporary protection. A residence permit is issued to other relatives of a refugee or an alien who has been granted a residence permit on the basis of a need for protection or enjoyes temporary protection, if refusing the residence permit would be unreasonable because the persons concerned intend to resume their close family life in Finland or because the relative is fully dependent on the sponsor living in Finland. If the applicant is considered a danger to public order, security or public health or Finland's international relations, an overall consideration is carried out s provided in section 114 (2).

Issuing a residence permit does not require that the alien has secured means of support.'

Thus, in cases of international protection, including subsidiary and temporary protection, the family reunification is not limited to the members of the nuclear family.

When ensuring that the matter is thoroughly investigated, the authoritie have to take into account all evidence available and not only official documents.

The significance of the oral hearing of the applicant and the sponsor is emphasized in situations where ther are no official documents. According to 62 (2) § of the Aliens Act 301/2004:
'To establish whether the requirements for a residence permit are met, the persons mentioned in subsection 1 [the sponsor and the applicant] shall be provided with an opportunity to be heard before a decision is issued on the matter.'

Furthermore, according to 64 § of the Aliens Act 301/2004: 'When applying for a residence permit on the basis of family tie, the applicant, sponsor or other relative may be heard orally to establish whether the requirements for entry or for a residence permit are met.

The hearing is conducted by the police or by an official of a Finnish mission. The Directorate of Immigration may conductr the hearing if establishin the matter so requires.'

If no other adequate evidence on family tie based on biological kinship exists, the persons concerned will be offered an opportunity to prove the biological kinship with DNA analysis that is paid from State funds. According to the Government Proposal 28/2003 this opportunity to use the DNA analysis in order to establishing the family tie is particularly important in case of unaccompanied minors as they often come to Finland as asylum seekers and do not possess documentary evidence concerning their situation, and furthermore as for them as children it may be difficult to provide sufficient information of the family relationship orally.

According to 65 § of the Aliens Act 301/2004:
'The Directorate of Immigration may provide an applicant or sponsor with an opportunity to prove their biological kinship with DNA analysis paid from State funds if no other adequate evidence of family tie based on biological kinship is available and if it is possible to obtain material evidence of the family tie through DNA analysis.

The person concerned shall be given proper information on the purpose and nature of DNA analysis and any consequences and risks involved. Carrying out DNA analysis requires that the person to be tested has given a written consent based on information and free will. Results of the analysis may not be used for any purposes other than establishing the family tie required for issuing a residence permit in cases as specified in the person's consent.

If the person concerned has deliberately given false information on his or her family tie, as a result of which the person and the family member indicated by him or her have been ordered to take a DNA test, the Directorate of Immigration shall order the person concerned to reimburse the cost of the test to the State unless this is unreasonable under the circumstances. The decision of the Directorate of Immigration is enforced as provided in the Act on the Recovery of Taxes and Charges through Execution.'

Further regulations concerning how the DNA testing should be performed are laid down in 66 § of the Aliens Act 301/2004.

56 § of the Aliens Act 301/2004 as amended by the Act 380/2006 concerns permanet residence permits.
According to this provision:
'A permanent residence permit is issued to an alien who has resided legally in the country for a continuous period of four years after being issued with a continuous residence permit if the requirements for issuing a continuous residence permit are still met and if there are no obstacles mentioned in this Act to issuing a permanent residence permit. Residence is considered continuous if an alien has resided in Finland for at least half of the validity period for the residence permit. The continuous residence is not cut by regular holiday and other trips abroad or working abroad as posted worker sent by an employer established in Finland.

A person who has been issued with a fixed-term residence permit on the ground of a family tie can be issued with a permanent residence permit even if the sponsor does not meet the requirements for issuing a permanent permit.

The period of four years is calculated from the date of entry into the country if the alien held a residence permit for continuous residence upon entry. If the residence permit was applied for in Finland, the period of four years is calculated from the first day of the fist fixed-term residence permit issued for continuous residence in the country.
[...]'

New paragraph 2 concerning family member's independent permit was added to 56 § of the Act when the Act was amended by the Act 380/2006. Under this provision a family member may be issued with an autonomous and permanent residence permit after four years residence in Finland even if the sponsor would not meet the requirements for issuing the permanent permit and would therefore not be issued with it. This permanent residence permit is, according to the Government Proposal regarded to be the 'autonomous' permit as meant in the Directive as it can be issued even if the sponsor would not be issued with the permanent permit. As this autonomous permit would still be a family member's permit, it's issuing is conditional upon the existence of the family tie and the legal residence of the sponsor. However, once the permanent permit has been issued, it cannot be cancelled on any ground related to the sponsor or his or her permit, or on ground that the family relationship no longer exists.

There may be a discrepancy here between the aliens Act and the Directive as under the Directive a family member is in this kind of situations entitled to a residence permit whereas the Aliens Act leaves the authoritie with discretion in this respect as according to 56 (2) § a person concerned may be issued with a residence permit.

It is worth noting here that the four year period is counted from the point of time when the person concerned was issued with a continuous residence permit. If the family member has resided in Finland by virtue of a temporary residence permit for example as a family member of a student for a longer period than one year and then after that by virtue of a continuous permit for four years, the time limit of 5 years laid down in the Directive shall be exceeded. According to the Government Proposal 28/2003 this is not regarded to be problematic as the Directive does not apply to temporary residence but only to permanent residence and the four year period required for a permanent permit shall be counted from the point of time when the permanent residence started.

Furthermore, if the personal situation of the family member would become particularly difficult if his or her autonomous residence in Finland would not be allowed, he or she can be issued with a residence permit under 52 (1)§ of the Aliens Act 301/2004 that concerns residence permits on compassionate grounds. According to this provision: '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 or tie to Finland or another compassionate grounds, particualry in consideration of the circumstances they would face in their home country or of their vulnerable position.'

No time limits are set in these provisions and therefore the permit may be obtained on these grounds before the period of time normally required under national law. In these two cases the ground of the permit would no longer be the family tie.

According to 58 (4) § of the Aliens Act 301/2004:
'A fixed-term residence permit may be cancelled if the grounds on which the permit was issued no longer exist. Another requirement for cancelling the permit is that the alien has resided legally in Finland for only a short time.' The residence permit could be cancelled on the ground that the family tie would no longer exist and thus the requirements for issuing a permit would no longer be met.

Furthermore, 36 (2) § of the Aliens Act 301/2004 may be applicable in this kind of situations. According to this provision:
'A residence permit may be refused if there are reasonable grounds to suspect that the alien intends to evade the provisions on entry into or residence in the country.'

58 (3) § of the Aliens Act 301/2004, too, may be applied in these situations. According to this provision: 'A fixed term or permanent residence permit may be cancelled if false information on the alien's identity or other matters relevant to the decision was knowingly given when the permit was applied for, or if information that might have prevented the issue of the residence permit was concealed.'

There are no provisions in the Aliens Act guiding how to asses whether the marital or family relationship is no longer real. The question whether the marriage or partnership is real or not is assessed when taking the decision on issuing or continuing the residence permit. The Guidelines given by the Directorate of Immigration on family reunification offers some guiding in this. According to these Guidelines, following factors shall be taken into account:

• Life together: when and under what kind of circumstances the persons concerned had met; have they lived together before and/or after concluding the marriage; how have they kept in touch when they have lived separately.
• Meetings and contacts before concluding the marriage.
• Contradictory information given by the partners on each other and their relationship.
• If one of the spouses paid to the other for concluding the marriage, the relationship shall normally not be regarded as real.
• Lack of common language.
• Indications on the fact that the spouses / the family don't live together without an acceptable reason for that.
• When was the marriage concluded or the adoption registered? If this happened right after one of the persons concerned was issued a negative decision on an application for a residence permit on some other ground, a strong suspect arises that the marriage or partnership is contracted for the sole purpose of enabling reunification.

According to 36 (2) § of the Aliens Act 301/2004:
'A residence permit may be refused if there are reasonable grounds to suspect that the alien intends to evade the provisions on entry into or residence in the country.'

Furthermore, according to 58 (3) § of the Aliens Act 301/2004: 'A fixed term or permanent residence permit may be cancelled if false information on the alien's identity or other matters relevant to the decision was knowingly given when the permit was applied for, or if information that might have prevented the issue of the residence permit was concealed.'

Regarding the definitions, checks, and practices concerning the marriages of convenience the Government Proposal 28/2003 refers to the Council Resolution (97/C382/01) of 4th December 1997. According to the Guidelines given by the Directorate of Immigration on family reunification, following factors shall be taken into account in assessing whether the marriage is real or not:

• Life together: when and under what kind of circumstances the persons concerned had met; have they lived together before and/or after concluding the marriage; how have they kept in touch when they have lived separately.
• Meetings and contacts before concluding the marriage.
• Contradictory information given by the partners on each other and their relationship.
• If one of the spouses paid to the other for concluding the marriage, the relationship shall normally not be regarded as real.
• Lack of common language.
• Indications on the fact that the spouses / the family don't live together without an acceptable reason for that.
• When was the marriage concluded or the adoption registered? If this happened right after one of the persons concerned was issued a negative decision on an application for a residence permit on some other ground, a strong suspect arises that the marriage or partnership is contracted for the sole purpose of enabling reunification.

Of interest in this connection is also 47 (5) § of the Aliens Act 301/2004 according to which:
'If an alien has been issued with a continuous or permanent residence permit on the basis of family tie, and the family tie that was the basis for issuing the permit is broken, a member of his or her family residing abroad maybe issued with a continuous residence permit, provided that the family member has secure means of support. When making a decision, however, account shall be taken of the possibility of the person already living legally in Finland to return to his or her home country or another country to live with his or her family there, if all his or her family tie can be considered to lie there.'

According to the Government Proposal 28/2003 this provision may be applied, for example, in situations where there is a reason to believe that the marriage on the basis of which the residence permit on ground of family tie was issued, was concluded for the sole purpose of getting a residence permit in Finland and where the person who had been issued with a residence permit on the ground of family tie attempts soon after the break up of the marriage to be united with a new spouse. In this kind of situations special attention shall be paid to finding out whether the first marriage was real or concluded with the purpose of circumventing the regulations concerning entry.

According to the Government Proposal 198/2005 this provisions shall be applied in situations where the decision would, after applying the requirements for issuing a residence permit to the facts of the case, be negative to the applicant. In this kind of situations the family situation would be given special significance before taking the final decision. In other words, the influence of the negative decision to the family situation of the applicant and the sponsor would be reconsidered before issuing the final decision. According to the Proposal, this provision would not be applied in situations where the decision would, after applying the requirements for issuing a residence permit, be positive.

146 (1) § of the Aliens Act 301/2004 as amended by the Act 380/2006 concerns decision making in cases of refusal of entry deportation or prohibition of entry. According to this provision:
'When considering refusal of entry, deportation or pohibition of entry and the duration of the prohibition of entry, account shall be taken of the facts on which the decision is based and the facts and circumstances affecting the matter otherwise as a whole. When considering the matter, particular attention shall be paid to the best interest of children and the protection of family life. Other facts to be considered include at least the lenght and purpose of the alien's residence in Finland, the nature of the residence permit issued to him or her and the alien's tie to Finland as well as possible family, cultural and social tie to the country of origin.
Should a refusal of entry, deportation or related prohibition of entry be based on any criminal activity of the alien, accout shall be taken of the seriousness of the act and the detriment, damage or danger caused to public or private security.'

According to 196 § of the Aliens Act 301/2004 the decision by the administrative court may be further appealed to the Supreme Administrative Court if the latter gives a leave to appeal. A leave to appeal may be given if it is important for the application of the Act to other similar cases, or for the sake of consistency in legal practice, to submit the case to the Supreme Administrative Court for a decision or if there is some other weighty reason for giving the leave.

The scope of the judicial review is full review.

It is positive that the Directive pays special attention to the vulnerable situation of refugees. It is, however, regrettable that these special guarantees are not guaranteed to those receiving subsidiary or temporary protection as their needs are often very similar or even identical to those of the refugees.

Of individual Articles worth mentioning in this respect is Article 14 entitling the family members to access to education, employment and self-employed activity and to vocational guidance, initial and further training and retraining, in the same way as the sponsor. It is, however, regrettable that this right is compromised by Article 14 (2) and 14 (3).

The main weakness of the Directive is that it does not apply to those receiving subsidiary protection. There are no sufficient grounds to justify this limitation as the nature and duration of subsidiary protection is normally as permanent as that of refugee protection.

The notion of family member adopted in the Directive comprising only of the members of the nuclear family is rather narrow. Certain provisions of the Directive create scope for narrowing this already narrow concept even further. Of concern in this respect are especially Articles 4 (1) and 4 (6) concerning treatment of minor children. These provisions, under which minor children can under defined circumstances be excluded from the scope of application of the Directive, are problematic from the perspective of the principle of the best interest of child. The requirement laid down in Article 4 of the Directive concerning the minimum age of sponsor and spouse that can be maximum 21 years of age may, too, in practice lead to further narrowing the personal scope of the Directive and may furthermore be problematic in light of Article 8 of the ECHR.

The Government Proposal to the Parliament for the Aliens Act and certain acts related to that HE 28/2003 (Hallituksen esitys eduskunnalle ulkomaalaislaiksi ja eraiksi siihen liittyviksi laeiksi HE 28/2003) (hereafter Government Proposal 28/2003) can be found at HE 28/2003 and the Proposal of Government to the Parliament for the Act amending the Aliens Act HE 198/2005 (Hallituksen esitys eduskunnalle laiksi ulkomaalaislain muuttamisesta HE 198/2005) (hereafter Government Proposal 198/2005) at HE 198/2005.

• correct transposition
• no transposition
• violation of the Directive
• unclear