SECOND SECTION
CASE OF S.F. v. FINLAND
(Application no. 35276/20)
 
 
JUDGMENT
Art 8 • Positive obligations • Family life • Refusal of family reunification request of refugee who failed to fulfil maintenance requirement and applied outside the three-month exemption period • Principles set out in Dabo v. Sweden applied • Lack of objectively excusable reasons for failure to submit family reunification request within that period • Applicant received timely and adequate advice regarding family reunification procedures • Refusal not irreversible • Possibility to make a fresh application invoking exceptional circumstances for a derogation in the event of new circumstances • Fair balance struck between competing interests at stake • Wide margin of appreciation not overstepped
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
8 October 2024
 
FINAL
 
08/01/2025
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of S.F. v. Finland,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Pauliine Koskelo,
 Saadet Yüksel,
 Diana Sârcu,
 Davor Derenčinović,
 Gediminas Sagatys, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 35276/20) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Eritrean national, Ms S.F. (“the applicant”), on 5 August 2020;
the decision to give notice to the Finnish Government (“the Government”) of the application;
the decision not to have the applicant’s name disclosed;
the parties’ observations;
Having deliberated in private on 10 September 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the domestic authorities’ refusal to grant family reunification to the applicant, an acknowledged refugee in Finland who wanted to sponsor her husband to join her, because she did not have sufficient financial resources (hereinafter “the maintenance requirement”), and because the application for her husband’s residence permit on grounds of family reunification was not lodged within a period of three months after she had been granted asylum in Finland, which would have exempted her from the maintenance requirement. THE FACTS
2. The applicant is an Eritrean national who was born in 1982 and lives in Vantaa. Before the Court she was represented by Ms H. Laari, a lawyer practising in Helsinki. 3. The Government were represented by their Agent, Ms K. Oinonen, of the Ministry for Foreign Affairs. 4. The facts of the case may be summarised as follows. Background
5. The applicant, an Eritrean national, and her three minor children born in 2003, 2008 and 2015, respectively, were granted asylum in Finland by a decision of the Finnish Immigration Service of 27 October 2016. They were given refugee status because the Immigration Service found that there were grounds to believe that in her home country the applicant would be persecuted for her political opinions. She was notified of that decision on 8 November 2016. 6. The decision was accompanied by information, in Finnish, on family reunification procedures, including how and where the application should be lodged, and instructions specifying the relevant time-limit. In particular, it was explained that if the sponsor resident in Finland had been granted refugee status and the family had been established before the sponsor resident had come to Finland, a family member could apply for a residence permit without having to meet the maintenance requirement if the application was submitted within three months following the notification to the sponsor of the positive asylum decision (see section 114 of the Aliens Act, quoted in paragraph 32 below). 7. Furthermore, the Government have submitted information recorded in the immigration data system of the Immigration Service, according to which the applicant had discussed the possibility of family reunification with a social worker in November 2016 and January 2017 in meetings where she was assisted by an interpreter from and into Tigrinya, the applicant’s mother tongue. On the latter occasion the applicant was specifically informed about the three-month time-limit and the consequences of exceeding it. At that meeting she was also provided with the application forms for family reunification, with the contact information of the Finnish Embassy in Nairobi, and with information on the possibility of applying for a residence permit online. The application of the applicant’s husband for a residence permit
8. The applicant’s husband is also an Eritrean national. He was granted refugee status in Uganda and lives in Kampala. 9. On 30 January 2018 he applied for a residence permit on the grounds of family reunification in the Finnish Embassy in Nairobi, Kenya. He presented his Eritrean passport, issued on 18 May 2017. In his interview, held on 14 February 2019 at the Finnish Embassy in Nairobi, he stated that he had fled Eritrea in 2014 because he had been penalised for having left military service without permission to visit his family. The applicant and one of her children made written submissions. 10. By a decision of 20 February 2019, the Finnish Immigration Service refused the application of the applicant’s husband for a residence permit. While it was established that he was a member of the applicant’s family, the Immigration Service refused his application as the applicant failed to meet the maintenance requirement provided in section 39 of the Aliens Act (see paragraph 32 below). The three-month exception provided for in section 114(4) of the Act (see paragraph 32 below) was not applied because the applicant had been notified of the decision granting her asylum on 8 November 2016, whereas her husband had applied for a residence permit only on 30 January 2018, nearly fifteen months later (see paragraph 5 above and the previous paragraph). 11. The decision specified that the family should have had at least 2,900 euros (EUR) per month and EUR 34,800 per year at their disposal to secure the subsistence of the applicant’s husband in Finland. However, the applicant’s reported income consisted only of various social security benefits. The applicant had not demonstrated that she had continuous income as required by the Aliens Act that could ensure her own and her husband’s subsistence in Finland. According to the decision, it could instead be assumed that the husband would need social assistance or a corresponding benefit to ensure his subsistence. 12. Furthermore, the Finnish Immigration Service did not derogate from the maintenance requirement as the parties had not presented exceptionally serious grounds for such a derogation, as required by section 39(1) of the Aliens Act (see paragraph 32 below). The applicant and her husband had been partly imprecise in stating the reasons why they had not applied for a residence permit for the husband earlier. The husband stated that he had tried to contact the Finnish consular authorities in Kampala several times in the spring of 2017. However, he could not apply for a residence permit in Kampala, because Finland only had an honorary consulate there, which did not deal with matters related to residence permits. He had been advised to apply to the Finnish Embassy in Nairobi but had not done so before January 2018. Even if the husband had already tried to apply for a residence permit at the Finnish honorary consulate in Kampala in the spring of 2017, the difficulties of obtaining one there or the fact of having to go to the Finnish Embassy in Nairobi could not be considered as exceptionally serious grounds for derogating from the requirement for sufficient financial resources under section 39(1) of the Aliens Act. 13. The Finnish Immigration Service further found that the applicant’s husband must have known that he could not lodge a residence permit application in Uganda. Nevertheless, he had not tried immediately to follow the advice given to him but had decided to stay in Uganda and had repeatedly tried to apply for the residence permit at the Finnish honorary consulate in Kampala. 14. What is more, the Finnish Immigration Service were not convinced that the husband had not been able to go to Nairobi and apply for the residence permit in the Finnish Embassy there until more than a year after the applicant had been notified of the asylum decision. Stamps on the husband’s passport indicated that before that time he had visited Kenya and his country of origin, Eritrea. The Finnish Immigration Service took into account the fact that the parties were, by their own admission, in good health and that the applicant’s husband had refugee status and a support network in Uganda. As he had already lived in Uganda for many years before applying for a residence permit, he was considered to have been settled there. 15. The Finnish Immigration Service considered that the Convention did not impose a general obligation on the Government to respect the family’s choice of place of residence. The applicant’s family life in Finland could justifiably be restricted because her husband’s subsistence had not been ensured as required by the Aliens Act. 16. Lastly, the Finnish Immigration Service also assessed the children’s best interests but did not find that those interests warranted granting their father a residence permit. In that context, it took into account the fact that the children lived with the applicant, their mother, in Finland. The oldest child stated, when interviewed, that he had never had any sort of relationship with his father, and the youngest child had been born after their father had left Eritrea. Contact had been established between the children and their father by phone and, in the Immigration Service’s assessment, the children’s best interests did not require that a residence permit be granted to someone who had previously spent little time with them, and not at all in the past five years. Proceedings IN the Administrative Courts
17. On 1 April 2019 the applicant and her husband appealed against the decision of the Finnish Immigration Service to the Administrative Court. 18. In the appeal, they argued, inter alia, that the Finnish Immigration Service had committed a procedural error because it had failed to substantiate its allegation that it had informed the applicant of the possibility of applying for family reunification within the three months and thus be exempted from the maintenance requirement. According to the appeal, the lack of effective opportunity for the applicant’s husband to apply for family reunification before 30 January 2018 should have been considered as exceptionally serious grounds for derogating from the maintenance requirement. He submitted that the stamps on his passport were dated from when his passport had been sent to him from Eritrea. At that time, he had already been living in Uganda, and had not entered Eritrea after having fled that country. 19. In the appeal the applicant and her husband for the first time presented details about his health: he had shortness of breath and lost consciousness from time to time. He needed another person to watch him all the time and had no money to go to the doctor. They further submitted that the Finnish Immigration Service should have also derogated from the maintenance requirement in the children’s best interests. They further argued that during her stay in Finland, she had had sole responsibility for taking care of three minor children and therefore could not work. Only when the youngest child had started daycare in early 2019 had she been able to start learning Finnish in order to get an education and a job in Finland. 20. In its reply before the Administrative Court, the Finnish Immigration Service submitted, inter alia, (i) that when the applicant had been notified of her asylum decision, she had also received instructions on how to apply for a residence permit within three months and be exempted from the maintenance requirement, and (ii) that financial problems per se could not be considered as exceptionally serious grounds for derogating from that requirement. 21. The Finnish Immigration Service also found the husband’s explanation regarding the stamps in his passport implausible. The passport had been stamped at the Kenyan border on 14 September 2017. According to the appeal, the husband had on that date been at the border with the passport. However, the stamps for entering and leaving Eritrea were dated 13 November and 19 December 2017, that is to say, later than the stamps made at the Kenyan border. The stamps made in Eritrea thus could not have resulted from sending the newly obtained passport from Eritrea to the husband after his arrival in Uganda (see paragraph 18 above). The Finnish Immigration Service thus considered that the husband had had an opportunity to travel to Nairobi before January 2018 to lodge a residence permit application. 22. In reply, the applicant’s husband explained that his passport had been handled by a middleman who had probably forged the Eritrean stamps. He further explained that he had tried to cross the border into Kenya in September 2017 but that he had been refused entry because the border guards had not accepted his passport. After that unsuccessful attempt the middleman had kept the passport. The middleman had travelled with the husband to Kenya in January 2018 when they had successfully crossed the border and had never given the passport back to him. The applicant’s husband stated that he had no idea what the middleman had done with the passport while it had been in his possession. 23. By a decision of 6 September 2019, the Administrative Court dismissed the appeal. It considered it undisputed that the applicant’s husband had applied for family reunification after the expiry of the statutory three‑month time-limit. The maintenance requirement thus had to be applied. 24. Regarding that requirement, the Administrative Court established that the applicant’s subsistence was based on social welfare benefits, and that the parties had not mentioned that they had other income or savings. There were no reasonable grounds to believe that the parties would not need to rely on social assistance or other social welfare benefits. The subsistence of the family had therefore not been ensured, as required by section 39 of the Aliens Act (see paragraph 32 below). 25. The Administrative Court, however, held that the facts and circumstances on account of which the residence permit application had not been lodged within the three-month time-limit could be relevant in assessing the possibility of a derogation from the maintenance requirement. 26. In that connection, the Administrative Court found that the applicant had been given instructions on the family reunification procedure specifying the three-month time-limit, that the application for family reunification had been submitted with considerable delay, and that the reasons for the delay were financial or related to the husband’s passport. In those circumstances the Administrative Court held that the fact that the instructions had possibly been given to the applicant in Finnish was not decisive. 27. The Administrative Court further held that the alleged health problems (see paragraph 19 above), which had not been mentioned earlier and were not substantiated by any evidence, could not be considered as exceptionally serious grounds for derogating from the maintenance requirement. 28. The Administrative Court also assessed the children’s best interests. It considered that their best interests did not require a derogation from the maintenance requirement merely because that requirement could lead to an interruption of family ties. Instead, specific facts or circumstances impacting the children’s best interests had to be presented. The Administrative Court took note that the children were healthy and lived with their mother, that is, were not left without care. In conclusion, it held that there were no specific facts or circumstances having a specific impact on the children’s best interests which would warrant a derogation from the maintenance requirement. 29. A minority of judges in the Administrative Court found that a derogation from the maintenance requirement had to be applied in the applicant’s case. Those judges noted that the applicant and her husband had three children who were minors. According to those judges, the required income per month, EUR 2,900 was not realistic for the applicant to earn in her circumstances even though she was of working age and had started learning Finnish. This minority of judges voted in favour of quashing the decision and referring it back to the Finnish Immigration Service. 30. On 4 October 2019 the applicant applied for leave to appeal to the Supreme Administrative Court. The grounds for seeking leave to appeal were mainly the same as for the appeal to the Administrative Court. The applicant argued, inter alia, that the Administrative Court had applied the Aliens Act in a manner that had led to an unreasonable outcome. 31. On 26 February 2020 the Supreme Administrative Court refused to grant leave to appeal against the Administrative Court’s decision. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Domestic legislation and practice
32. The relevant provisions of the Aliens Act (ulkomaalaislaki, utlänningslag; Act no. 301/2004) read as follows:
Section 39 - Requirement for sufficient financial resources when issuing a residence permit
“(1) Issuing a residence permit requires that the alien has sufficient financial resources unless otherwise provided in this Act. In individual cases, a derogation may be made from the requirement if there are exceptionally serious grounds for such a derogation or if the derogation is in the best interests of the child. The requirement for sufficient financial resources does not apply if a residence permit is issued under chapter 6, unless otherwise provided in section 114(4). (2) When an alien’s first residence permit is issued, the alien’s financial resources are considered sufficient if the alien’s residence is financed through gainful employment, pursuit of a trade, pensions, property or income from other sources considered normal so that the alien cannot be expected to become dependent on social assistance as referred to in the Social Assistance Act or on other similar benefit to secure his or her financial resources. Social security benefits compensating for expenses are not regarded as such a benefit.”
Section 114 – Issue of residence permits to family members of beneficiaries of international or temporary protection
“(1) A residence permit is issued on the basis of family ties to a family member of a refugee or an alien who has been issued with a residence permit on the basis of subsidiary protection, or who has enjoyed temporary protection if:
1) the sponsor lives in Finland or has been issued with a residence permit for the purpose of moving to Finland; and
2) the applicant is not considered a danger to public order or security or public health.
... (4) Issuing a residence permit referred to in this section requires that the alien has sufficient financial resources. However, the requirement for sufficient financial resources does not apply if:
1) the application for a residence permit on the basis of family ties has been submitted within three months of the date on which
a) the sponsor was notified of the decision that he or she has been granted asylum; or
b) the sponsor was notified of the decision that he or she has been admitted to Finland under the refugee quota;
2) the sponsor’s family was established
a) before the sponsor arrived in Finland in cases where he or she has been granted asylum; or b) before the sponsor was admitted to Finland under the refugee quota; and
3) family reunification is not possible in a third country to which the sponsor or family member has special ties.”
33. In a decision rendered in another case, dated 7 July 2021, the Supreme Administrative Court assessed whether there were special circumstances in that case which made the late submission of the application objectively excusable and therefore meant that the maintenance requirement should not apply. In the decision the following was noted:
“A residence permit application on the basis of family ties was submitted nearly a year after the time-limit for an application entitling the person concerned to more favourable treatment had expired. The closing of the border between Eritrea and Ethiopia was presented as a reason for the delay. According to the Supreme Administrative Court the applicant did not lodge the application as soon as the obstacle ceased to exist despite having a particular interest in doing so. There were no particular circumstances in the case as a whole that would render the late submission of the application objectively excusable. Therefore, the requirement for sufficient financial resources was to be applied in the present case.”
European Union law AND international law and materials
34. Relevant European Union law and relevant international law and materials are set out in Dabo v. Sweden, no. 12510/18, §§ 50-64, 18 January 2024. THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
35. The applicant complained that the domestic authorities’ decision to deny the application for family reunification that would have allowed her husband to join her had violated her right to respect for her family life as guaranteed by Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Admissibility
36. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

37. The applicant submitted that the authorities had ignored her individual circumstances, together with those of her husband and their children, and their vulnerability as refugees. She had not received timely and adequate advice with regard to the family reunification procedures. She maintained that the case concerned the right of the children to continue family life with their father in a situation where family life had been disrupted for compelling reasons and could only be resumed in Finland. 38. The Government submitted that it was undisputed that the family could not return to their country of origin. The applicant’s husband was healthy and settled in Uganda. The applicant was not without any education. The children were at the time of the Government’s observations 19, 14 and 7 years old. Their best interests had been taken into account and those interests had not warranted granting a residence permit to their father with whom they had barely shared family life in their country of origin and not at all during the five years leading up to the refusal decision. They lived in Finland with the applicant as their primary caregiver and were not dependent on their father’s care.

Outcome for Article 8: no_violation