The Aliens Act and the Reception Act must be amended to put the child’s best interests first
The best interests of children must be the top priority when laws are enacted and enforced. However, the Aliens Act does not adequately realise this objective. It is, therefore, high time to ensure that the rights of the child are realised in full by codifying them as the top priority in the Aliens Act and the Reception Act.
Placing the child’s best interests first is an internationally recognised obligation that Finland is committed to fulfilling. According to the UN Convention on the Rights of the Child, the best interests of the child must be the primary consideration in all actions affecting children. The principle of prioritising the best interests of the child applies to legislators and law-enforcers. The UN Committee on the Rights of the Child has urged Finland to ensure that the rights of foreign children are respected. At present, the child’s interests are not prioritised.
In recent years, legislative amendments have undermined the status of foreign children in many ways. At the same time, the reform of the EU’s immigration regulation will change the foundations of Finnish legislation on foreigners. The EU reform will strengthen the rights of the child and the consideration of the child's best interests, but the draft legislation in Finland does not adequately incorporate these improvements. From the perspective of the rights of the child, Finland's national implementation of the reform is set to become a missed opportunity.
Over the years, the Non-Discrimination Ombudsman has learned of various situations where the best interests of a foreign child have not been prioritised in practice. Some of these involve Finnish children with a foreign parent.
For example, last year the Ombudsman issued a statement to a court in a case in which the Finnish Immigration Service had decided to refuse entry to a family with children, even though the family had been in Finland for 10 years and most of the children had been born in Finland. The children had friends and a support network in Finland, and some of them were already in school. Their entire life was in Finland. The Non-Discrimination Ombudsman considered that the best interests of the child were not the primary consideration in this case. The decision highlighted that it is in the child’s best interests to be with their parents. However, decisions that affect a child's parents also affect the child. The best interests of the child should take precedence when deciding on matters affecting the child’s parents.
Such failures to act in the best interests of the child are not a matter of isolated incidents. The Ombudsman has monitored negative decisions relating to family ties in families with children. The decisions may state that granting a residence permit to a child or the family member of a child based on the best interests of the child would require an exceptionally serious risk to the best interests of the child due to concrete facts or circumstances related to the individual circumstances of the child in question. This is not prioritising the best interests of the child.
The best interests of the child must be the primary consideration when making decisions
At its simplest, the principle of prioritising the best interests of the child may be realised by first considering what decision would be in the best interests of the child. After this, the parties can determine whether there are grounds for not making the decision that is in the best interests of the child. Such a procedure would ensure that the best interests of the child are the primary consideration and that other criteria are also taken into account.
Many different factors can be taken into account when assessing whether the child's best interests are prioritised. For example, EU regulation can offer support. The regulations state that the possibility of family reunification, the child’s well-being and social development in the short, medium and long term, security aspects, and the child’s views, according to their age and level of development, should be taken into account. The assessment must take into account any other circumstances that increase the child’s vulnerability, such as trauma, special health needs or disability. Particular attention should be paid to the child’s ethnic, religious, cultural and linguistic background, and the need to ensure the stability of social and educational care.
There have long been calls to strengthen the rights of the child. Based on the Non-Discrimination Ombudsman’s previous report to the Finnish Parliament, the Parliament issued a communication requiring the government to examine legislative amendments that would ensure the full realisation of the rights of the child when a child or one of their parents is a foreigner. However, it has not resulted in any significant changes or reports. For this reason, one of the Ombudsman’s key recommendations in the report to the Parliament published this spring is to ensure that the best interests of the child are prioritised in matters involving foreigners. The Ombudsman for Children has also recommended amending the Constitution of Finland to include a provision that prioritises the best interests of the child. Hopefully, the time is ripe for change.
The government will soon submit a proposal to Parliament on the EU immigration reform. As part of the implementation, the government and Parliament have a good opportunity to incorporate provisions into the Aliens Act and the Reception Act to ensure that the best interests of the child receive primary consideration when these acts are enforced. If the rights of the child are not sufficiently safeguarded in this context, this concrete proposal for improvement will hopefully be included in the programme of the next government.
Recommendation of the Non-Discrimination Ombudsman: The Aliens Act and the Reception Act should confirm that the best interests of the child are the primary consideration in accordance with the UN Convention on the Rights of the Child and EU immigration regulation.