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Finland has room for improvement in protecting the best interests of the child in immigration policies

The old adage “To throw the baby out with the bathwater” dates from an era when water usage did not cause climate anxiety. Water was heated over open fire, poured into a tub, with the entire family taking turns bathing in it. The children came after adults, small infants the very last. At that point, the water would be so soapy and grey that you could easily lose a baby in it. 

The rights of the child have improved from those days and Finland, quite rightly, feels pride for many of the achievements it has made in this area. In addition to national legislation, the children’s rights are protected in Finland by the UN Convention on the Rights of the Child. Under the Convention, all measures and policies that concern children must be adopted with the child’s best interests as a priority. 

This year, the UN Committee on the Rights of the Child issued its first ever condemnatory decision to Finland in a matter concerning a decision to return a family with a child seeking asylum to Russia. The Committee found that Finland neglected its duty to ensure that the child will not face a real risk of serious harm such as violence or harassment. In the Committee’s view, Finland must take all necessary measures to prevent similar violations in the future and, in particular, to ensure that the priority of the best interests of the child is in all eventualities effectively and systematically protected in the asylum process.

The best interests of the child is a priority in immigration policy

Milka Sormunen, who has researched legal practices and the concept of the best interests of the child, noted in her doctoral dissertation that the Supreme Administrative Court tends to consider the best interests of the child selectively, depending of the case category. She maintains that relying on different presumptions in similar legal questions, such as whether it is in the best interests of the child to live with their parents, may lead to discriminatory outcomes. 

While governments have the right to control immigration, they are obliged to prioritise the best interests of the child even when issuing residence permits. Here, prioritisation means that the first thing to consider must always be which solution in each situation will produce the best outcome for the child.

According to the UN Convention on the Rights of the Child, a child shall not be separated from their parents unless such separation is necessary for the best interests of the child. The Ombudsman has in recent years received information of many, and of an increasing number of cases in which a foreign national who has led family life in Finland for several years has been found to have violated the immigration rules, either on entering or while staying in the country. 

In these cases, the breach of the rules committed by a parent several years earlier has been considered a factor that overrides the right of a 4-year-old Finnish child to live together with their father. In other words, many children in Finland have been or are at risk of being separated from their parent even if this is against the best interests of the child. In similar cases, many other EU Member States, for example, have chosen to respect the rights of the child and a person’s right to family life more than is the case in Finland.

Practices more punishing that the law and the Supreme Administrative Court’s yearbook decisions prescribe 

International law and legal practice do not, as a rule, oblige a decision-making to emphasise the right of a state to cancel a parent’s residence permit instead of adopting a decision that would better support the best interests of the child. However, at the moment, the policy adopted by the Finnish Immigration Service and the Administrative Court appears to be stricter that what the law and the Supreme Administrative Court precedents would require. 

The Supreme Administrative Court noted in summer 2020 (KHO:2020:63, KHO:2020:64) that the actions taken by the complainant, which can be seen as having had the intent of evading immigration rules, could lead to a negative decision in a matter pertaining to family ties even if the family ties were genuine. 

However, these cases were related to family life between two spouses, not between a child and a parent. Further in another case, the Supreme Administrative Court took the view that regardless of the parent taking action that indicates intent to evade immigration rules, the protection of family life must take priority in the matter.

The Aliens Act needs a reform

The rights of the child have evolved over the years, but as the Non-Discrimination Ombudsman has pointed out, the significance of the father in the growth and development of the child is not assessed or acknowledged in practical decision-making. The importance of the child’s right of access to both parents is a self-evident in a Finnish divorce. Yet, in a matter related to immigration, a parent’s residence permit can be cancelled and the parent of a Finnish child may be suggested that “they keep in touch with their child from abroad through video calls”. This is a direct quote from a recent court decision, for which the Supreme Administrative Court did not grant a leave to appeal. While there is plenty of room for improvement in the practices and processes of decision-makers, as described above, it is clear that legislative reforms are also called for. 

To improve the situation, the Non-Discrimination Ombudsman recommended in her report on the reunification of families of children receiving international protection that the provision on the evasion of immigration rules be amended. The provision should be reformed so as to take better account of the rights of the child and the right to family life in the future. The Ministry of the Interior is currently coordinating a project on family reunification, which assesses the needs for legislative reform in line with the government programme and based on the recommendations presented in the Ombudsman’s report. 

As it stands, Finland seems more interested in preserving its immigration policies and principles than in protecting the fundamental rights of children who are growing up in Finland or, indeed, are Finnish. Despite the rather brutal-sounding proverb, I doubt that any babies were actually thrown out with the bathwater in the 16th century Finland. But in the Finland of the 21st century, it has become reality. We must take the condemnatory decision issued by the UN Committee on the Rights of the Child, the latest scientific research and the desperation of the families living in Finland seriously – and act accordingly.