The case concerned an Iraqi national whose application for family reunification was rejected by FIS while his appeal against a negative decision on the international protection application was pending before the administrative court.

The Supreme Administrative Court clarified that the fact that the appeal on the international protection procedure was pending it did not prevent the FIS from assessing, in the context of the request for residence permit on family ties, of the conditions for deportation and entry ban. According to the Supreme Administrative Court, the appeal in the international protection procedure had only the effect of being taken into consideration for the actual implementation of the return decision.

The FIS decided on 29 November 2021 to rejected A’s application for family reunification with his spouse B, a Finnish citizen. The FIS decided to return A to his country of origin and ordered a 2 years entry ban to the Schengen area. The FSI conducted an assessment for return and found no impediments related to a potential risk of violation of Article 3 ECHR as referred to in Article 147 of the Aliens Act.

In the section on the implementation of the decision, the FIS referred to section 201 subsection 3 of the Aliens Act, because the applicant had also applied for a residence permit based on international protection.

In the appeal, the administrative court has rejected A's claim regarding the residence permit based on family reunification, but it has annulled the decision of the Immigration Office regarding the return order and the entry ban on grounds related to the pending application for international protection and a risk of violation of Article 3 of the ECHR. The applicant leave to appeal was rejected and the application for leave to appeal of the FIS was allowed with regards to the return and entry ban order.

The Supreme Administrative Court noted that the pending appeal regarding international protection has not prevented the FIS from examining the conditions for removal from the country after it had decided to reject the residence permit application. The Supreme Administrative Court noted that the decision to remove from the country includes an overall consideration and an assessment of the ban on return, and the FIS had taken into account the relevant provisions related to this matter. The Supreme Administrative Court stated that the lower court had not reviewed the content of the decision of the FIS on these aspects and that the administrative court has not had a legal basis to overturn the decision of the FIS regarding the return and the entry ban solely on the basis that an appeal regarding international protection was pending.