A, B and C were rejected the application for residence permit based on family ties with D, the reunifier who ahs been granted refugee status in Finland by decision of 30 January 2018. The Finnish Immigration Service based its negative decision on the fact that the applicant’s livelihood in Finland is not secured, according to the Article 39 of the Aliens Act, namely the subsistence requirement. The Administrative Court confirmed the negative decision.

The Supreme Administrative Court allowed the appeal, annulled the negative decision and clarified that the subsistence requirement is not applicable to families formed before the family reunifier came to Finland, if the application for a residence permit has been submitted within three months of the family reunifier being notified of the asylum decision. The Supreme Administrative Court made a thorough analysis of the Family reunification Directive and applied also the CJEU judgement, Case C-380/17 K and B v Staatssecretaris van Veiligheid en Justitie, where the later ruled on the interpretation of Article 12 (1). According to the CJEU, the provision of the Directive does not preclude national legislation which allows an application under more favorable provisions to be rejected on the ground that the application was made more than three months after the sponsor was granted refugee status. However, that condition is that the ground for refusal cannot be used in situations where special circumstances make the late submission of that application objectively excusable.

The family gatherer has been notified of the decision on the residence permit on 8 February 2018. The three-month period for more favorable treatment of refugee family members has expired on 8 May 2018. Applicants have set aside time from the mission to submit applications on 16 May 2018, ie after the deadline. However, the delay in presenting the application was objectively excused by the fact that it was unsuccessful to obtain a certificate to proof residence before the mission in Addis Ababa in due time, and the spouse has received the required document only a few days after the deadline and has made an appointment right after that. The Supreme Administrative Court held that the delay in the application has been objectively excusable in the way intended by the judgment of the Court of Justice described above and sine an acceptable reason for submitting the application after the deadline had been provided in connection with obtaining the required documents, the subsistence condition should therefore not apply.