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The case concerned a request for family reunification where the sponsor is a child, citizen of Finland.

The applicant, a Turkish national, applied for family reunification based on family ties with the sponsor, his minor child, who is a Finnish citizen. The Finnish Immigration Service (FIS) rejected the request and decided to return the applicant to his country of origin, and the administrative court confirmed the negative decision. The Finnish Immigration Service considered, on the regard to the best interests of the child, that because the applicant has committed crimes and is suspected of having committed serious crimes in Finland, granting a residence permit in the best interests of the child would require the child's best interests to be actually and seriously endangered due to individual circumstances related to the child's situation. The FIS stated that an example of such danger would be that they would be completely without the care and concern of an adult, as a result of the decision to return the applicant. The FIS found that the applicant’s children are Finnish citizens and live in Finland together with their other guardian. As such, the FIS found that there is no reason to assume that the children would be left without an adult's care and concern without the applicant's stay in Finland.

The Supreme Administrative Court adopted an interim decision on 24 August 2023 ordering the suspension of the execution of the return decision.

The Supreme Administrative Court considered, based on the case law regarding the application of the Aliens Act, that the Finnish Immigration Service could reject the application and order the return. However, because the case concerned the refusal to grant a residence permit and the return of a third country national whose spouse and children are citizens of Finland, thus EU nationals, the assessment of the application needed to take into consideration the applicable EU law and mentioned the derived right to protection and jurisprudence related to it.

The Supreme Administrative Court noted that the EU law is applicable to the applicant’s situation, namely the Article 20 of the Treaty on Functioning of the EU and he has the right to reside in Finland as a derived right from the rights of a Union citizen. The court ruled that the threat the applicant posed to public order and security and the situation of his Union citizen family members had to be assessed as a whole in the light of the jurisprudence of the CJEU.

The Supreme Administrative Court took into the consideration the family ties, notably the fact that the applicant has close relationship with his minor children he puts the youngest child to sleep every night, he helps the children with the school, one of them having learning difficulties.

The Supreme Administrative Court stated that although the applicant’s spouse, who is a Finnish citizen, could in principle take care of the family despite her health issues, however in view of the number of children, their age and the applicant’s emotional involvement and financial responsibility for the family, the assumption presented by the CJEU in the joined  cases C-451/19 and C-532/19, Subdelegación del Gobierno en Toledo needed to be considered. As such, when it has not been proven otherwise, the court found that there is a dependency relationship between the applicant and his children as defined in the court's jurisprudence. The court concluded that the applicant had a derived right to reside as provided by Article 20 of the Treaty on the Functioning of the EU.

However, the court further stated that the assessment on the exception from the right of residence derived from the right of a citizen of the Union on the basis of endangering public order and security must take into account, inter alia, the person’s own behaviour, the length of the person’s residence in the territory of the Member State in question and the legality of that stay, the nature and seriousness of the crime committed, and the current danger to the  society (CJEU case C -304/14, CS) and the time that has passed between the moment when the judgments are announced and the moment when the authority takes its decision (CJEU case, C-528/21, MD).

Based on the abovementioned, the Supreme Administrative Court ruled that the case falling within the scope of Article 20 TUE does not necessarily constitute an obstacle to the refusal of the right of residence and to removal from the country on the basis of endangering public order and security.

The Supreme Administrative Court noted that the Finnish Immigration Service took a different approach and based its assessment on the Aliens Act and referred the case back for re-examination by the Finnish Immigration Service.

M.B., a Syrian national arrived in the Netherlands in October 2015 and requested asylum. He was arrested on suspicion of participation in a terrorist organisation and he was placed in pre-trial detention. The applicant was convicted to 10 months’ detention and he was released in September 2016, but placed in immigration detention in Rotterdam pending the examination of his asylum application on the ground that he posed a threat to public order.

Before the ECtHR, the applicant complained under Article 5(1)(f) (detention of a person to prevent his effecting an unauthorised entry into the country) of the European Convention on Human Rights, claiming that the detention pending the examination of his asylum application was unlawful and arbitrary.

The court highlighted the general principles regarding detention under Article 5(1)(f), citing the judgments of Saadi and Suso Musa. It noted that states have a sovereign right to control aliens’ entry and residence in their country and that they are permitted under Article 5(1)(f), as an exception to the general rule under Article 5(1) that everyone has the right to liberty, to detain a person who has applied for permission to enter, whether by requesting asylum or not. The court further highlighted that a legal provision that allowed asylum applicants to enter or remain in the territory pending a final decision on their application “did not necessarily require that an individual be granted formal authorisation to stay or to enter the territory, as it might well be that the provision in question was simply intended to reflect international standards to the effect that an asylum-seeker could not be expelled pending the assessment of an asylum claim.”

The court also noted that in order to be lawful, detention under Article 5(1)(f) should not be arbitrary, must be carried out in good faith, must be closely connected to the purpose of preventing unauthorised entry of the person to the country. Furthermore, the place and conditions of detention should be appropriate, considering that the measure is applicable to people fearing for their lives, who have fled from their own country. Finally, the court noted that the length of the detention should not exceed what is reasonably required for the purpose pursued.

On the facts of the case, the court concluded that there was a violation of Article 5(1)(f) as the decision to order the applicant’s immigration detention was not lawful. 

The court noted that Article 5(1)(f) allows the detention of an asylum applicant or other immigrant until the State has granted that person authorisation to enter and that it is de jure entry, not de facto entry, which is relevant. It then looked at Article 9(1) of the recast Asylum Procedures Directive which states that the right to remain on the territory of a State pending the outcome of an asylum application, cannot be equated to an entitlement to a residence permit. The court noted that this article was implemented in Dutch national law through Article 8(f) of the Aliens Act 2000, which provides that an asylum applicant shall not be expelled pending the assessment of the asylum application and does not provide for any formal authorisation procedure in respect of rights of entry or residence, meaning that lawful detention of such a person is permitted under Article 5(1)(f). The court thus concluded that the detention of the applicant had a legal basis (also with reference to Section 59b(1)(d) of the Aliens Act 2000 which transposed Article 8(3)(e) of the recast Reception Conditions Directive) and was within the scope of Article 5(1)(f) to prevent an unauthorised entry.

The court then proceeded to examine if detention was arbitrary. It noted that the applicant did not argue that the conditions of detention were inappropriate or that the length of detention was unreasonable or that detention was not carried out in good faith.

The court thus examined the remaining point, whether there was a sufficiently close connection between the immigration detention and the purpose of preventing unauthorised entry.

The ECtHR noted that Section 59b(1)(d) of the Aliens Act 2000 which transposed Article 8(3)(e) of the recast Reception Conditions Directive provides for detention in case of a threat to public order or national security. It further observed that although Article 8(3)(e) of the recast Reception Conditions Directive allows detention on the grounds of national security or protection of public order, by contrast Article 5(1)(f) of the ECHR only allows immigration detention to prevent unauthorised entry or for deportation.

The court noted that it has previously examined the justification of immigration detention on public order grounds under the second limb of Article 5(1)(f), for the aim of deportation, and it held that detention based on public order grounds, while no removal proceedings were actively ongoing, was considered arbitrary. The court further highlighted that while it could understand legitimate concerns that would exist when an asylum applicant is released from detention following a conviction for terrorism, preventive detention cannot be the consequence and it does not absolve a state to follow its obligations. The court also noted that while the applicant was in pre-trial detention, there were no steps taken to examine his asylum application and to possibly exclude him from international protection based on Article 1F of the Refugee Convention but the interviews took place only when the applicant was in immigration detention.

The court concluded that the immigration detention appeared disproportionate and unnecessary to enable the examination of his asylum claim, and it lacked the close connection between detention and the aim of preventing unauthorised entry. The court further noted that accepting such a situation would be to expand the Convention grounds to justify the deprivation of liberty of asylum applicants and other immigrants.