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.