Report of the Non-Discrimination Ombudsman: The rights of a child are not realised in family reunification decisions
The Non-Discrimination Ombudsman has reviewed family reunification decisions taken by the Finnish Immigration Service. Based on the report, concerns have emerged about the fulfilment of children's rights. Only half of the children who are granted protection are reunited with their families in Finland. Furthermore, the observations made during the review process indicate that applications for family reunification are being refused on grounds that are not explicitly laid down in legislation.
The Non-Discrimination Ombudsman has studied how a child’s right to their family is realised in the family reunification process in the cases of children who have come to Finland alone and have received asylum or subsidiary protection, and how the Aliens Act is applied to family reunification decisions.
The research material of the report “Children without families – family reunification of under-age beneficiaries of international protection” consists of 66 family reunification decisions made by the Finnish Immigration Service between 1 January 2018 and 18 September 2019. Out of all the decisions, 31 were negative and 35 were positive, which means that approximately half of the children who have arrived in Finland alone and received asylum or subsidiary protection do not get their families to join them in Finland.
The Finnish Immigration Service has justified the negative decisions by arguing that there had been no “individual compelling reason” for leaving the country, even though the child has been granted international protection. However, the concept of individual compelling reason is not stated as a requirement for family reunification in the law, nor is it mentioned in the Government proposals on the evasion of entry provisions.
The report shows an interpretation practice where the implementation of the rights of the child depends on the Finnish Immigration Service's judgement of the motives behind the parents’ actions that are usually years past and outside Finnish jurisdiction.
- Applications for family reunification have been refused on grounds not explicitly laid down in legislation. Even though the children are in need of protection, they are being punished because of their parents’ actions, e.g. that their parents did not travel with them, says acting Non-Discrimination Ombudsman Rainer Hiltunen.
Finland has ratified, or enforced at legislative level, the UN Convention on the Rights of the Child. The convention states that the best interest of the child shall be a primary consideration in the administrative process, meaning that the decision shall promote the child’s best interest in the best possible way. The primary status of the best interest of the child is not manifested clearly enough in the decisions of the Finnish Immigration Service.
Based on the report, the Non-Discrimination Ombudsman issues eight recommendations. One of the recommendations concerns amending the regulation on the evasion of provisions on entry.
- At the moment, the regulation concerning the evasion of the provisions of entry is stipulated so that by applying the regulation it is possible to significantly limit the fundamental and human rights – the right to live together with your family – of even children who have been granted international protection.
- In its current state, the legislation leaves the bodies applying it with too much discretion in terms of the enforcement of fundamental and human rights. The Ministry of the Interior must implement legislative amendments to ensure that the provisions of the Aliens Act more clearly meet the requirements laid down in the Finnish Constitution on specificity and precision as well as on the protection of family life, specifies acting Non-Discrimination Ombudsman Rainer Hiltunen.
The report also reveals that the requirement for means of support pertaining to family reunification, which has been widely featured in public debate, has not affected the decisions based on family ties, as the applications regarding family ties have been refused on other grounds.
The task of the Non-Discrimination Ombudsman includes promoting the status and rights of foreign nationals. The Ombudsman’s objective is to promote the enforcement of the rights of the most vulnerable foreign nationals. The Ombudsman’s special task is to identify shortcomings in legislation and its application. Under the Act on the Non-Discrimination Ombudsman (1326/2014), the Ombudsman's duties include preparing and commissioning reports. In order to carry out their duties, the Ombudsman has a broad right of access to information. The Ombudsman’s statutory right to confidential information enables the Ombudsman to make knowledge-based evaluations and analyses to support public debate.