Conformity Study For Finland Directive 2004/38/EC On The Right of Citizens of The Union and Their Family Members To Move and Reside Freely Within The Territory of The Member States

Conformity Study for Finland
Directive 2004/38/EC on the right of citizens of the Union and their

family members to move and reside freely within the territory of the
Member States
This National Conformity Study has been prepared by Milieu Ltd. in consortium with the
Europa Institute, Edinburgh University under Contract No JLS/2007/C4/004-30-CE-
0159638/00-31. The actual conformity checking was carried out in Australia by Heli Askola
and was concluded on 1 August. The study does not take into account any subsequent changes
in EU law and national legislation and/or administrative practice.
The views expressed herein are those of the consultants alone and do not necessarily represent
the official views of the European Commission. The national report reflects that legal
situation as it stands on 1 August 2008. No subsequent changes have been taken into account.
Milieu Ltd. (Belgium), 29 rue des Pierres, B-1000 Brussels, tel: 32 2 506 1000; Fax 32 2 514
3603; e-mail: [email protected]; web address: www.milieu.be
ANALYSIS OF THE LEGISLATION TRANSPOSING
DIRECTIVE 2004/38/EC ON FREE MOVEMENT OF UNION CITIZENS
TABLE OF CONTENTS
EXECUTIVE SUMMARY ......................................................................................................................... 5
SUMMARY DATASHEET ........................................................................................................................ 9
ABBREVIATIONS USED ....................................................................................................................... 11
1 INTRODUCTION ......................................................................................................................... 13
1.1 Overview of the Legal Framework In Finland ....................................................................... 14
1.2 Framework for Transposition and Implementation of Directive 2004/38/EC in
Finland...................................................................................................................................................... 14
1.2.1Distribution of competences according to the national Constitution ......................... 14
1.2.2General description of organisation of national authorities implementing Directive
2004/38/EC in Finland.......................................................................................................... 15
2 LEGAL ANALYSIS OF THE TRANSPOSING MEASURES FOR DIRECTIVE 2004/38/EC................. 15

2.1 Definitions, family members and beneficiaries (Article 2) ................................................. 16
2.2 Rights of exit and entry (Articles 4 and 5) .............................................................................. 18
2.3 Right of residence......................................................................................................................... 19
2.4 Right of permanent residence (Articles 16-21)..................................................................... 23
2.5 Common provisions (Articles 22-26)......................................................................................... 23
2.6 Restrictions on the right of entry and residence on grounds of public policy, public
security and public health (Articles 27-29 and Article 33) ......................................................... 25
2.7 Procedural safeguards against decisions restricting free movement (Article 15 and
Articles 30-31) ......................................................................................................................................... 26
2.8 Final provisions (Articles 34-41) .................................................................................................. 28
ANNEX I: Table of concordance for Directive 2004/38/EC

ANNEX II: List of relevant national legislation and administrative acts
ANNEX III: Selected national case law
ANNEX IV: ID-card for Union citizens and family members
Milieu Ltd & Conformity Study Directive 2004/38/EC for Finland, (13 June 2008) / 3
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EXECUTIVE SUMMARY
1. Introduction
This conformity study analyses in detail the provisions of Directive 2004/38/EC on the free movement
of EU citizens and it compares it with the legislation currently in place in Finland.
As free movement is one of the fundamental freedoms of the internal market, national legislation
should not adopt a restrictive approach to the rights contained in the Directive. Implementation in
Finland should aim to guarantee a uniform approach regarding the formalities imposed on EU citizens
residing in the Finnish territory.
2. Introduction to the main particularities of the legal system of the Member State relating to
the transposition of Directive 2004/38/EC.
Finland is a unitary republic with a continental legal system. Finland has a dual court system (which
derives from the times of Swedish rule); there is no constitutional court. Attitude to sources of law in
the Finnish legal system emphasises the central role of written law (primarily the Constitution and
Acts of Parliament, characterised as “strongly binding”).
Immigration is an area extensively regulated by legislation. The most important piece of legislation on
immigration is the Aliens Act 301/2004 of 2004. The ministry which is generally responsible for
immigration matters is the Ministry of the Interior, headed by the Minister for Internal Affairs who is a
Member of the Government (however, responsibility for visas lies with the Ministry of Foreign
Affairs).
Directive 2004/38/EC has been implemented in Finland by amending the Aliens Act (amendment
360/2007). The amending Act was adopted on 23 March 2007 and entered into force on 30 April
2007. The Ministry of the Interior was the Ministry primarily responsible for preparing the amending
legislation, with other Ministries consulted where the changes touched upon their areas of competence.
Other bodies with relevant responsibilities (such as the Central Criminal Police, the Data Registration
Centre, Finnish Immigration Service and the Minority Ombudsman) were also consulted about the
legislation.
The ministry responsible for implementation and application of the Directive 2004/38/EC is the
Ministry of the Interior. In practice, decisions under the Aliens Act will be made by civil servants
under delegated powers. The role of the Finnish Immigration Service, a body directly responsible to
the Ministry of the Interior, will be central in the practical application of the Directive’s provisions.
Union citizens are likely to come into contact also with the local police, as municipal police
departments are charged with administrative functions in immigration matters.
3. Conclusions of the legal analysis of the transposing measures for Directive 2004/38/EC.
Directive 2004/38/EC has been transposed by amending the Aliens Act (301/2004), in particular its
Chapter 10 which already contained relatively recent (2004) provisions on the treatment of EU
citizens.
The Title of Chapter 10 of the Aliens Act is “Residence of European Union citizens and comparable
persons”. For the most part, the amendments introduced in 2007 fill in matters of detail as opposed to
introducing major changes. Whilst the amendments are largely faithful to the Directive (and there are
thus a limited number of conformity problems), some parts of the Directive have been improperly
transposed, leaving gaps or, more often, undue vagueness which could have been avoided to ensure
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individual freedom is maximised. Both the Table of Correspondence and the Conformity Study
(below) set out these issues in more detail.
For the purposes of this executive summary, the following instances of incomplete transposition and
incorrect transposition are the most relevant:
Incomplete Transposition
The provision transposing Article 3(2)(b) defines “durable relationships” (apart from marriage and
registered partnerships) as involving at least two years cohabitation, or couples that have a child in
their joint custody or those having other “substantial reasons”. Such partners are treated as “spouses”
(in other words, their entry and residence is not merely “facilitated” but they have the same rights as
spouses do) – however, there is no provision for facilitating the entry and residence of those partners
who do not fulfil those conditions.
The last two sentences of Article 5(2) have not been transposed into the legislation. There are,
however, guidelines issued by the Ministry of Foreign Affairs that require authorities to grant such
persons who are required to have a visa “every facility to obtain the necessary visas”, to issue them
free of charge, as soon as possible and on the basis of an accelerated procedure. Regarding Article
5(4), there has been no transposition of the expressions “every reasonable opportunity” and “a
reasonable period of time”.
The last sentence of Article 7(4), regarding the application of Article 3(2) of the Directive to the
dependent direct relatives of a student has not been transposed.
Article 8(4) on not fixing an amount for “sufficient resources” has not been transposed; nor has Article
8(5) regarding documents required by family members who are also Union citizens. (There is a
mandate in the Act to give further provisions on administrative procedures.) Regarding Article 12(2),
the last sentence of the second paragraph has not been transposed (“sufficient resources”). This links
with the non-transposition of Article 8(4).
Article 15 has not been transposed separately, and the related transposition of Articles 30-31 is
inadequate (see below).
Article 18 has not been explicitly transposed – the lack of a guarantee that permanent residence will be
granted could be seen as an instance of non-conformity.
Articles 30 and 31 have not been transposed as separate provisions and indeed some of the guarantees
are not in the Aliens Act itself but in the more general Act on administrative matters. The phrase in
Article 30(1): “In such a way that they are able to comprehend its content and the implications for
them” has not been adequately transposed. The phrase in Article 30(2): “informing, precisely and in
full” has not been sufficiently transposed.
Regarding Article 35, the transposition contains no explicit reference to proportionality or procedural
safeguards.
Finally, it can be added that the Directive was not transposed in time (Article 40).
Incorrect transposition
Regarding Article 3, the transposing provision requires accompanying family members to have resided
with the EU citizen legally and in a non-temporary manner in another Member State. There is some
ambiguity about how the words “accompany or join” in Article 3(1) of the Directive should be
interpreted, and Finland has adopted a relatively narrow interpretation. The insertion of a requirement
of a “legal and non-temporary stay” arguably limits the scope of persons who can benefit from the
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rights guaranteed by the Directive by opening space for authorities to disallow residence claims on
grounds not authorised by Article 3(1).
The phrase “prior to initiation of the divorce or annulment proceedings” has not been transposed as per
Article 13(2) (the end result, however, is more favourable than prescribed by the Directive).
Article 14(3), expulsion not being an automatic consequence of recourse to social assistance, has been
transposed unclearly.
“Imperative grounds of public security” (Article 28(3)) has been transposed in a questionable
(possibly too strict) manner. Imperative grounds of public security exist when an EU citizen is guilty
of an act which is punishable by no less than one year of imprisonment, and he or she, on grounds of
the seriousness of the crime or of continued criminal activity, is considered a danger to public security
or he or she is considered to seriously endanger the national security of Finland or another State. The
requirement of a minimum one year imprisonment seems fairly low as a standard for imperative
grounds. It is required that the person who has been found guilty of an act punishable by no less than
one year is also considered a danger to public security (on grounds of the seriousness of the crime or
of continued criminal activity) or considered a serious danger to national security.
Conclusion
In summary, it is fair to say that the Directive has been for the most part effectively transposed, with
some (apparently inadvertent) oversights and some (intentionally imposed) restrictions (of these, the
latter are clearly the more serious concern). The most obvious issues in relation to Finland’s
transposition of the Directive arise with regard to entry requirements for non-EU citizens who join
Union citizens, the unclear transposition of some of the procedural safeguards and the possibly too
strict interpretation of “imperative grounds of public security”.
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SUMMARY DATASHEET
1. Transposing legislation
Directive 2004/38/EC was transposed in Finland by an amendment (360/2007) to the Aliens Act
301/2004 of 2004 (Ulkomaalaislaki). It was transposed late: the amending act was adopted on 23
March 2007 and entered into force on 30 April 2007.
2. Assessment of the transposition
a) Incomplete transposition or non-transposition
Art.3(2)(b) No provision for ‘durable relationships’ that do not involve at least two years
cohabitation.
Art. 5(2), Not transposed in legislation (only through guidelines by the Ministry of
last two Foreign Affairs).
sentences
Art. 5(4) No transposition of the expressions ‘every reasonable opportunity’ and ‘a
reasonable period of time’.
Art. 7(4), No transposition re: application of Art. 3(2) of the Directive.
last
sentence
Art. 8(4) Not transposed.
Art. 18 Not explicitly transposed.
Art. 30(1) ‘In such a way that they are able to comprehend its content and the
implications for them’ is not explicitly transposed.
Art. 30(2) ‘informing, precisely and in full’ is not transposed explicitly.
Art. 35 No explicit reference to proportionality and procedural safeguards.
Art. 40 The Directive was not transposed in time.
b) Incorrect or imprecise/ambiguous transposition
Art. 3(1) Insertion of a requirement of a ‘legal and non-temporary stay’ in a Member

State in order for persons to benefit from the free movement related rights
guaranteed by the Directive.
Art. 13(2) No transposition of ‘prior to initiation of the divorce or annulment
proceedings’ (although this is more favourable than the Directive).
Art. 14(3) ‘not an automatic consequence’ transposed unclearly.
Art. 28(3) ‘imperative grounds of public security’ transposed in a questionable (possibly
too strict) manner.
Art. 30(3) ‘justifiably urgent’ appears to be less exceptional as compared to ‘duly
substantiated cases of urgency’.
c) Minor instances of non-conformity
Art. 27(1) Last sentence not explicitly transposed.
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ABBREVIATIONS USED
AA Aliens Act (2004, as amended by Act 360/2007)
Art. Article
CA Competent Authority
Ch. Chapter
ECJ European Court of Justice
KHO Korkein hallinto-oikeus (Supreme Administrative Court)
s. section
ss. subsection
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1 INTRODUCTION
This conformity study analyses in detail the provisions of Directive 2004/38/EC on the free movement
of EU citizens in its consolidated version, and compares it with the legislation in place in Finland.
Directive 2004/38/EC repealed the earlier directives on free movement of persons (Directives
64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC,
90/365/EEC and 93/96/EEC) as of 30 April 2006.
EU citizenship gives every Union citizen the right to move and to reside freely within the territory of
the Member States. The facilitation and promotion of this right, which is at the same time one of the
fundamental freedoms of the internal market, is the objective of Directive 2004/38/EC. A second
objective of Directive 2004/38/EC was to codify and review the various pieces of legislation and case-
law dealing with this issue.
Free movement as a fundamental freedom of the internal market
Free movement is one of the fundamental freedoms of the internal market and can therefore only be
restricted in a limited number of pre-determined circumstances. Thus, national legislation cannot adopt
more restrictive legislation than provided for in the Directive.
Directive 2004/38/EC introduces, on the one hand, a uniform approach regarding the formalities that
Member States can impose upon EU citizens residing in their territory. These formalities are expressly
established in the Directive and restricted in function of the duration of the stay in the Member States.
• For a stay of less than three months, the only formality a Member State can impose is the
presentation of a valid passport or national identity card.
• For residence of more than three months, a Member State can only require the EU citizen to register
in the population register of the place of residence. This registration needs to be validated
immediately if a certain number of conditions are complied with. The Member State can only
require the EU citizen to present proof that he/she is a worker, self-employed person, student or has
sufficient resources not to become a burden upon the social security system of the Member State.
Member States cannot lay down a fixed amount of what they consider to be “sufficient resources”,
but must always take into account the personal situation of the person concerned. Family members
of the EU citizen will have to present an identity document and proof of the family link to an EU
citizen.
• After five years of continuous residence in a Member State, an EU citizen obtains a right to
permanent residence. The host Member State shall issue a document certifying permanent
residence. A permanent resident has the right to be treated equally to a national of the Member
State.
On the other hand, the Directive also determines and clarifies the only acceptable reasons for
restriction of the free movement of citizens by Member State authorities, namely for reasons of public
order, public security and public health. (For the interpretation and conditions of such exceptions, it is
important to rely upon the case law of the Court of Justice.)
These measures guarantee a strong protection against expulsion for EU citizens who have been long-
term residents in another Member State. Such measures need to be proportionate and shall always look
at the personal conduct of the individual concerned which must represent a “genuine, present and
sufficiently serious threat affecting one of the fundamental interests of society”. In addition, the
Directive establishes some procedural safeguards if an expulsion decision is considered.
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1.1 Overview of the Legal Framework In Finland
Finland is a unitary republic. The Finnish Constitution sets out the system of government for the State.
According to the Constitution legislative sovereignty resides in the people, who are represented by
elected Members of Parliament. The Finnish Constitution also guarantees a set of constitutional rights
for citizens (some of which also apply to non-citizens).
The Finnish legal system is a continental one, and draws heavily from the Swedish legal system
(owing to 600 years of Swedish rule). Finland’s dual court system also stems from this era: there are
general courts, dealing with civil suits and criminal cases, and administrative courts, regulating the
actions of the state’s bureaucracy – including immigration matters. The early establishment of the two
court systems was confirmed by the Constitution in 1919. Like other Nordic countries, Finland has no
constitutional court. Issues dealt with by a court of this kind are usually handled by the Parliament’s
Constitutional Committee.
The attitude to sources of law in the Finnish legal system emphasises the central role of written law,
primarily the Constitution and Acts of Parliament which are characterised as ‘strongly binding’.
Presidential Decrees, Government Decrees, Ministry Decrees and other types of subordinate
regulations which various authorities are allowed to give – based on explicit authorisation in an Act of
Parliament – are also binding, but subordinate to the Constitution and Acts of Parliament. (All Finnish
legislation is published in print in the “Suomen säädöskokoelma”, i.e., the Statute Book of Finland.)
Where there is no written law, custom will play a role, unless it is unreasonable. This is relatively rare
now that statutes cover most areas of law (but custom plays some role e.g., in contract law).
Preparatory materials and judgments of the highest courts are persuasive but not “strongly binding”
sources of law. Preparatory materials give information on the intention of Parliament and are used by
the courts in interpreting Acts, whereas precedents are not legally binding but have practical
significance for ensuring consistency of application in lower courts.
1.2 Framework for Transposition and Implementation of Directive 2004/38/EC in

Finland
1.2.1 Distribution of competences according to the national Constitution
In Finland, immigration control is extensively regulated by legislation (and, supplementing that,

secondary legislation such as administrative decrees). In general, the ministry responsible for
immigration matters is the Ministry of the Interior (although responsibility for visas lies with the
Ministry of Foreign Affairs). Because Finland is a unitary state, there is little potential for conflict of
responsibilities in the implementation of the Directive. The major piece of legislation on immigration,
relevant for the implementation of the Directive, is the Aliens Act 301/2004 of 2004
(Ulkomaalaislaki).
Directive 2004/38/EC has been implemented by amending the Aliens Act (301/2004), especially its
Chapter 10 which already contained recent provisions on the treatment of EU citizens. The Title of
Chapter 10 of the Aliens Act is “Residence of European Union citizens and comparable persons”. The
amending Act, 360/2007, was adopted on 23 March 2007 and entered into force on 30 April 2007. For
the most part, the amendments fill in matters of detail as opposed to introducing major changes, in part
because some of the issues covered in the Directive had already been addressed by Aliens Act
(301/2004) which was adopted when the Directive had only been proposed.
The Ministry of the Interior was the Ministry responsible for preparing the amending legislation, in
cooperation with the Ministry of Justice, Ministry of Foreign Affairs, Ministry for Employment,
Ministry for Trade and Industry and Ministry for Social Affairs and Health. Various other bodies were
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consulted about the amending legislation, including the Central Criminal Police, the Data Registration
Centre, the Office for Corrections, the Ombudsman for Data Protection, the Central Population
Register, the Finnish Customs Authority, the Finnish Immigration Service, the Minority Ombudsman
and the Refugee Advice Centre.
1.2.2 General description of organisation of national authorities implementing

Directive 2004/38/EC in Finland
The ministry responsible for implementation and application of the Directive 2004/38/EC is the
Ministry of the Interior, which has general responsibility for immigration matters. The Ministry is
headed by the Minister for Internal Affairs who is a Member of the Government. (Government in turn
bears collective responsibility for the running of the State.)
In practice, decisions under the Aliens Act are made by civil servants under delegated powers. The
role of the Finnish Immigration Service, a body directly responsible to the Ministry of the Interior, will
be central in the practical application of the Directive’s provisions. The immigration officers for the
Finnish Immigration Service perform functions under the Aliens Act as general officers responsible
for operating and enforcing immigration law, including the making of decisions regarding the
provisions that relate to the rights of EU citizens and their family members. Administrative courts,
including the Supreme Administrative Court as the highest court on immigration matters, will play a
role in the appeal process.
In practice many Union citizens are likely to come into contact not only with the Finnish Immigration
Service but also with the local police, as municipal police departments are charged with administrative
functions in immigration matters, such as receiving applications for registering residence, granting
residence cards etc. Finally, the Finnish Border Guard is responsible for passport control at border
crossing points.
2 LEGAL ANALYSIS OF THE TRANSPOSING MEASURES FOR DIRECTIVE

2004/38/EC
This section discusses whether Finland has taken the necessary measures to ensure the effective
application and enforceability of Directive 2004/38/EC.
As mentioned above, Directive 2004/38/EC has been transposed in Finland by amending existing
secondary legislation on immigration (Aliens Act 301/2004, amendment 360/2007). There are no
further legal measures explicitly relating to the Directive’s transposition, although a number of
provisions in other Acts of Parliament or administrative regulations bear some relevance to issues
covered by the Directive (see list in Annex II), and are therefore considered where relevant.
Administrative regulations may also be adopted (and at least one has been adopted to date) to clarify
the practical implications of the Aliens Act.
This section sets out the problems with the transposition of the Directive, drawing on and further
developing the observations of the Table of Correspondence. For the purposes of this discussion, the
provisions are addressed in the order of their numbering. This approach, as opposed to a more
thematic perspective, creates some difficulties in regards to providing a consistent description of
substantive problems that straddle a number of the Directive’s provisions (e.g., those related to the
procedural safeguards). Some reference is made to administrative practice where such information has
been available.
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2.1 Definitions, family members and beneficiaries (Article 2)
Definitions: the concept of family members (Article 2)
The definitions of Article 2 of the Directive are, obviously, key concepts for the implementation of the
Directive. These definitions have been accurately transposed in to national law.
The Aliens Act has a general definition of EU citizens which, in fact, also includes not only citizens of
EU Member States but citizens of Iceland, Liechtenstein, Norway and Switzerland as “comparable
persons” (s.3, ss.1 AA).
The definition of family members is in s.154 of the Aliens Act. Family members of an EU citizen
include the spouse; direct descendants who are under 21 years of age or dependent on him or her, and
the descendants of similar status of his or her spouse; and direct relatives in the ascending line who are
dependent on him or her, and relatives of similar status of his or her spouse. The wording of the Aliens
Act before 2007 used terms “children” and “parents” which was more limited than the formulation of
the Directive, which also includes grandchildren/grandparents. According to the preparatory materials
of the Act, “dependency” means “factual financial dependency” which is to be established in each case
according to its circumstances. It is perhaps worth noting that there is no reference in the Aliens Act or
its preparatory materials to “dependency” being a community concept (see Jia or Lebon – provision of
material support for that family member) which might (or might not) cause problems of interpretation
in the future. (There is no Supreme Administrative Court case law on this point.)
The term “spouses” covers registered partners in accordance with the Law on Registered partnerships
(950/2001). It provides that the registration of partnership has the same legal effect as, unless
otherwise provided. The Aliens Act was amended to remove all specific references and effects to
registered partnerships in reflection of the legal equivalence of registered partnerships and marriage.
Thus, any references to spouses (or marriage) automatically cover registered (partners and registered
partnerships).
The definition of family member is more favourable than that of the Directive regarding
unmarried/unregistered couples. Persons living continuously in a “marriage-like relationship in the
same household”, regardless of their sex, are treated as a married couple if they have lived in the same
household for at least two years (s.154, ss.3 AA). In the application of Chapter 10, the relationship
between them is comparable to a marriage. The requirement of living together for at least two years is
waived if the persons living in the same household have a child in their joint custody or if there are
other substantial reasons for not requiring 2 years cohabitation. This substantially extends the
definition of “spouse”.
The definition of the “host Member State” is not included in the Aliens Act, but it is clear from s.153
(and indeed s.2 AA which limits the jurisdiction of the Aliens Act to Finnish territory) that the ‘host
member state’ is Finland.
Beneficiaries and facilitation of the right of entry and residence (Article 3)
Article 3 deals with the beneficiaries of the Directive and also imposes an obligation on the Member
States to facilitate entry for a secondary class of beneficiaries (essentially, members of the extended
family). Beneficiaries are addressed in s.153 Aliens Act, which has to be read in conjunction with
s.154 AA.
• Requirements under Finish law: legal and non-temporary manner
Section 153 AA states that Chapter 10 applies to EU citizens and comparable persons and their family
members and other relatives (ss.1). According to ss.3 of the section, the Chapter applies to EU citizens
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moving to Finland and their family members who accompany them by moving from another Member
State or join them and who, before moving, have resided in another Member State with the EU citizen
legally and in a non-temporary manner. Subsection 4 specifies the situation of Finnish EU citizens: the
Chapter applies to family members of Finnish citizens if the Finnish citizen has made use of the right
of movement laid down in the Free Movement Directive by moving to another Member State or by
residing in another Member State, and if the family member has accompanied him or her or joined him
or her, and has, before moving, resided in another Member State with the Finnish citizen legally and in
a non-temporary manner.
The wording of s.153 AA therefore excludes family members of the EU citizen who come directly to
Finland from a third country without having resided in another Member State with the EU citizen in a
“legal and non-temporary manner”. According to the preparatory materials of the Act, the requirement
of “legal and non-temporary manner” was introduced to get deal with the Akrich type situation, prior
to the ECJ’s judgment in Jia (the AG’s opinion is discussed in the preparatory materials). “Temporary
manner” is described as “non-permanent stay, with no intention of remaining in the country
permanently” (the form of residence or permit does not matter). This requirement that the EU citizen
and his/her family member must have resided in another MS legally and in a non-temporary manner
could be interpreted to the detriment of a family member who arrives to Finland directly from a non-
EU state or only having resided in another Member State in a “temporary” manner. This seems to
introduce more stringent requirements than Article 3(1) of the Directive, which provides that the
Directive shall apply to all EU citizens who move to or reside in a Member State other than that of
which they are a national and to “their family members as defined in point 2 of Article 2 who
accompany or join them”.
According to officials in the Ministry of the Interior this stance was adopted because Finland interprets
Article 3(1) of the Directive as not applying to family members who come directly from a non-EU
State. Such individuals are not seen to fall within the scope of free movement as guaranteed by the
Directive. They may, however, be given a residence permit based on s.50a of the Aliens Act, which
provides that aliens who are family members of an EU citizen but whose right of residence cannot be
registered or certified based on Chapter 10, will be given a residence permit based on family
connections. The Ministry of the Interior considers this sufficient (but they are aware their
interpretation about the scope of the Directive on this point is different from that of the Commission).
As far as the expert is aware, there have been no court cases in Finland on this issue – but there has
been at least one person who has written a letter to the Commission complaining about Finland’s
application of the Directive on this point. The Ministry is hoping that clarification on this issue will be
provided by some of the cases brought before the ECJ (e.g., C-551/07 Deniz Sahin and C-127/08
Metock).1 Whilst the issue thus appears to remain somewhat open, it can be concluded that the current
provisions of the Aliens Act differ from the interpretation adopted by the Commission. They thus
appear to open the possibility for authorities to disallow residence claims on grounds not explicitly
authorised by Article 3(1) and therefore, in this respect, the Directive might have been improperly
transposed.
• Personal scope of other family members
Article 3(2) appears to have been transposed, in part, more generously than what is required by the
Directive. Regarding Article 3(2)(a), according to s.154, ss.4 which transposes it, other relatives are
treated in the same manner as family members of EU citizens, regardless of their citizenship, if: 1) the
relative is, in the country of departure, dependent on an EU citizen who has the primary right of
residence, or the relative lived in the same household with the EU citizen in question; or 2) serious
health grounds absolutely require the EU citizen in question to give the relative personal care. The
entry and residence of such individuals is thus not only “facilitated” as required by the Directive, but
1
Case C-127/08 Metock was decided after the completion of the first version of this report (on 25 July 2008),
and the ruling seems to indicate Finland’s requirements may now be out of line with the ECJ’s interpretation.
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they are treated as family members in Article 2. This is more generous than the Directive and leaves
Article 3(2) in this respect with little independent meaning.
On the other hand, the other part of Article 3(2) raises a conformity issue. Regarding Article 3(2)(b),
partners in a durable relationship are defined in s.154, ss.3, as discussed above, as those who have
cohabited for at least two years, or who have a child in their joint custody or those who have other
“substantial reasons”. Once they prove these circumstances, they are then treated as “spouses” (in
other words, their entry and residence is not merely “facilitated” but they have the same rights as
spouses do). However, there is no provision for facilitating the entry and residence of those partners
who do not fulfil those conditions, i.e., those who have not cohabited for at least two years (or do not
have a child or cannot provide substantial reasons). It appears such persons are not deemed to be in a
“durable relationship” which appears to be a more restrictive interpretation than that of the
Commission (one year). Presumably these family members will have the right of entry and residence
on the basis of general aliens law, the requirements of which of course depend on whether such family
members are EU citizens (or Nordic citizens) or others. If they are EU citizens, Chapter 10 will be
applied; if not, they might need a Schengen visa and will in most cases have to prove they have
sufficient resources etc.
The requirement that the host Member State undertake an extensive examination of the personal
circumstances and shall justify any denial of entry or residence to these people (last sentence of Article
3(2)) is not explicitly transposed by the Aliens Act but the Administrative Act (434/2003) is relevant
in this regard. It includes general provisions on good governance that apply to all public authorities:
Authorities must make sure that “they conduct sufficient and appropriate examination of the matter at
hand by obtaining all necessary information and explanations” and “any decision must include the
grounds that it is based on”. Grounds must make clear which reasons and explanations have influenced
the decision and which statutory provisions have been applied. There is no explicit obligation to
undertake an extensive examination of “personal circumstances” but the Administrative Act is so
broadly formulated that “all necessary information” would cover this requirement. This appears to be
in conformity, especially as the Directive only demands examination for facilitation purposes.
2.2 Rights of exit and entry (Articles 4 and 5)
Right of exit (Article 4)
Article 4 of the Directive provides a general right for Union citizens and family members to leave the
territory of a Member State (provided they have the required identity card or passport). There is no
provision to this effect in the Aliens Act, undoubtedly because the right to leave the country is a
constitutional right guaranteed by s.9(2) of the Constitution of Finland: “Everyone has the right to
leave the country”. Limitations to this right can be provided for by secondary legislation – but as there
are no provisions in the Aliens Act that could stop an EU citizen from leaving the country, a contrario,
there are no limitations on EU citizens. No formalities are thus imposed either.
Article 4 also requires Member States to issue passports or identity cards and, if no identity cards are
issued, make sure that passports are valid for at least five years. Finland issues both passports and ID
cards (Passport Act (671/2006), Identity Card Act (829/1999)). There are no restrictions as to
countries to which passport holders may travel. The provision has therefore been effectively
transposed.
Right of entry (Article 5)
Article 5 provides a general right of entry for Union citizens and family members. The Aliens Act
(Ch.3, s.18, ss.1 AA) effectively transposes Article 5(1) by allowing EU citizens and comparable
persons may enter and stay in Finland without a visa if they hold a travel document accepted in
Finland. This is specified to be a valid identity card or passport for EU citizens (Ch.10, s.155, ss.1 AA)
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and a valid passport for non-EU family members (Ch.10, s.155a, ss.1 AA). There are no provisions on
visa requirements for EU citizens. Only a valid passport or ID card is required.
Article 5(2) is in part effectively transposed: family members may be required to have a visa if the
family member is a citizen of a country for which, under a Council regulation, a visa is required
(Ch.10, s.155a, ss.1 AA). “A family member who holds a valid residence card as referred to in the
Free Movement Directive, is not required to have a visa, and no entry or exit stamp is placed on his or
her passport” (Ch.10, s.155a, ss.2 AA). The latter provision also effectively transposes Article 5(3).
There is, however, a conformity issue regarding the last part of Article 5(2) which requires Member
States to grant such persons who are required to have a visa “every facility to obtain the necessary
visas”. Such visas should also be issued free of charge, as soon as possible and on the basis of an
accelerated procedure. These requirements are not transposed into the Aliens Act itself. The Ministry
of Foreign Affairs (responsible for visas) has issued guidance to authorities on this, and the expert
managed to get a copy of the document which was delivered on request (it is not available online as it
is intended for the Ministry’s internal use). The guidelines state that a visa shall be free of charge, and
that “reasonable checks” can be made. The procedure is, if the guidelines are followed, faster than the
process for other visa applications. However, because such guidance can easily be changed, it would
have been better to transpose these requirements in legislation; presumably this was not done because
of the level of detail involved in the guidelines.
A conformity issue is also raised with regard to Article 5(4) which provides that persons should be
given “every reasonable opportunity to obtain the necessary documents or have them brought to them
within a reasonable period of time or to corroborate or prove by other means that they are covered by
the right of free movement and residence”. Section 155, ss.2 which transposes Article 5(4) left out the
expressions “every reasonable opportunity” and “a reasonable period of time”. The stated reason for
this (in the preparatory materials of the Aliens Act) was that these expressions are unduly vague and
thus impractical when implementing real-life border controls (which require on-the-spot decisions on
whether entry should be allowed). Section 155, ss.2 AA is now arguably stricter than Article 5(4) as it
gives the person in question only “an opportunity” to obtain the documents or they will be turned
away at the border. Whilst instances of someone turning up without the necessary documents are
characterised by the responsible Ministry as ‘highly exceptional’ (there have been none so far), this is
probably an instance of non-conformity.
Article 5(5) gives Member States the opportunity to require that persons report their presence within a
reasonable and non-discriminatory period of time. There is no such reporting requirement in Finnish
legislation – this is more favourable than the requirements of the Directive.
2.3 Right of residence
2.3.1 Right of residence for up to 3 months (Article 6)
Article 6 grants an initial right of residence for up to three months. The Aliens Act (s.158, ss.1 AA)
transposes this by stating that EU citizens may reside in Finland without registering their right of
residence for a maximum of three months without any conditions or any formalities other than the
requirement to hold a valid identity card or passport. (Nordic citizens have the right to enter Finland
without a passport by virtue of s.157 AA). Section 158, ss.3 of the Aliens Act provides that EU
citizens who are jobseekers can reside in Finland past the 3 month limit without registering their
residence ‘as long as they are still seeking employment and have realistic prospects of getting
employment’. The right to reside in Finland for up to three months also applies to family members of
EU citizens who are not EU citizens and who hold a valid passport (s.158, ss.2 AA). This amounts to
effective transposition.
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2.3.2 Right of residence for more than 3 months (Articles 7-11)
(a) General conditions under Article 7
Article 7 provides for the right of residence to continue after three months where certain conditions are
satisfied. Articles 7(1)-7(3) have been mostly effectively transposed, and regarding Articles 7(2)-7(3)
literally transposed by s. 158a and s. 160 of the Aliens Act.
One thing worth mentioning is Article 7(1)(b) which has been transposed by s.158a, ss.1, point 2
which requires EU citizens (who are not workers or self-employed) to have for themselves and their
family members sufficient funds and, if necessary, health insurance so that, during their time of
residence, they do not become a burden on Finland’s social security system by “resorting repeatedly to
social assistance provided in the Act on Social Assistance or other comparable benefits or in other
similar manner”. Health insurance would rarely be required as most migrants (EU or not) who stay in
Finland more than temporarily are, once resident, allocated to a home municipality with which comes
to right to public health care. However, the issue might be relevant for some jobseekers who stay for
more than 3 months (at present Finland does not require health insurance in such cases – but the issue
is reportedly under consideration at the responsible Ministry). As to sufficient funds, the Act on Social
Assistance provides for everyone’s right to social assistance if they cannot support themselves
otherwise (through work, self-employment, other benefits etc). The Act provides for rough guidance
on estimating the income and living costs of the applicant in individual cases. “Resorting repeatedly to
social assistance” is discussed in the preparatory materials of the Aliens Act: it is said that repeatedly
means “at least repeated” and usually “nearly regular” resorting to such assistance. There are no
specific pecuniary limits (as indicated, the Act on Social Assistance provides the formulas used for
calculating the amount in each individual case). EU citizens can choose how they wish to show they
have sufficient funds so that they do not have to resort repeatedly to social assistance. This might have
been better clarified in the Aliens Act but is probably in conformity with the Directive, although there
is no case law yet.
Regarding Article 7(4), its transposition in s.158a, ss.3 is more favourable to the extent that, as
discussed above, the term “spouse” also covers not only registered partners but persons living
continuously in a “marriage-like relationship in the same household”, regardless of their sex (s.154,
ss.3). However, regarding the last sentence of Article 7(4), which requires Article 3(2) to be applied to
dependent direct relatives in the ascending line, the situation is less favourable. As the requirement of
Article 3(2) for “facilitating entry and residence” was not independently transposed (see discussion
above re: Article 3 and s. 154), there appears to be a gap regarding facilitating the entry and residence
of dependent direct relatives of students. This is not in conformity with the Directive and presumably
such family members would have to rely on general aliens law for entry and residence – the
requirements for that depend on whether such family members are EU citizens (or Nordic citizens) or
others. If they are EU citizens, Chapter 10 will be applied; if not, they might need a Schengen visa and
will in most cases have to prove they have sufficient resources etc.
(b) Administrative formalities for Union citizens (Article 8)
Article 8 deals with administrative formalities for Union citizens. These have been mostly effectively
transposed by s. 159.
Section 159 of the Aliens Act requires EU citizens to register their residence if they stay for more than
3 months. One issue to note is that the application for registering the right of residence must be
submitted to the District Police of their place of residence “within three months of the date of entry
into the country”. In other words, the time granted to register is no more than three months but no less
either (the applicant can of course apply earlier) so it appears to conform with Article 8(2) of the
Directive, which requires a period of no less than 3 months.
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Worth mentioning is also the statement in Article 8(2) that failure to comply with the registration
requirement may render the person concerned liable to proportionate and non-discriminatory
sanctions. This is transposed by Ch.12, s.185, ss.1 AA which provides for a fine for violation of the
Aliens Act. Daily fine units (‘päiväsakko’) are calculated in accordance with the Criminal Code and
apply to citizens and aliens alike. The calculation is based on 1 sixtieth part of the accused’s monthly
income (minus taxes, expenses etc). The number of daily fine units that can be imposed varies
between 1 and 120. So the maximum fine would be 120*1/60*monthly disposable income, i.e., 2
times monthly disposable income. This is likely to be deemed to be proportionate.
There are conformity issues raised regarding Finland’s transposition of Article 8(4) and Article 8(5).
Regarding Article 8(4), there is no fixed amount mentioned in the Aliens Act or in other legislation but
nor is there a prohibition to fix such an amount e.g., by an administrative decree. The preparatory
materials of the Act make clear that the idea is that decisions are to be based on the personal
circumstances of each individual but there is no provision on this in the Act itself. This amounts to
incomplete transposition. Regarding Article 8(5), there are no provisions in the Aliens Act on what
documents, apart from a passport or ID card (s.159a) are required to issue a registration certificate to
family members who are themselves Union citizens. There is a mandate in the Act (Ch.10, s.172b AA)
to give further provisions on administrative procedures regarding entry, residence and removal by
government decree but there does not appear to be a decree on this particular issue. Nonetheless, it is
to be presumed that all Union citizens who reside for more than 3 months must register as the first
sentence of Section 159 is unconditional. It is not clear what documents, if any, they would be
expected to present (apart from a passport or ID card). The forms available on the Finnish Immigration
Service indicate that a travel document is always needed for registration, and family members will
need to provide documentary evidence of the family relationship (e.g., marriage certificate,
clarification of cohabitation).
(c) Family members who are not nationals of a Member State (Articles 9-11)
Article 9 is about the formalities related to the issuing of residence cards to the family members of EU
citizens. Finland has transposed this Article effectively in Sections 161 and 161a AA. The only issue
to mention is that time granted to register is, as for EU citizens (see above re: Article 8(2)), no more
than 3 months but no less either. (It is perhaps worth noting that s.157 AA sets out the conditions for
the entry of Nordic citizens which are more lenient than Section 158a.)
Article 10 provides for the rules on issuing residence cards to family members of Union citizens who
are not themselves Union citizens. Finland has transposed this Article effectively by Sections 161a and
161b AA. The form with which residence cards are applied for is fairly flexible regarding means of
proof (a copy of passport must always be presented) – it requires e.g., documentary evidence of the
existence of family relationship/dependency and clarification of cohabitation.
Article 11 relates to the period of validity of residence cards. This provision has been effectively
transposed.
(d) Retention of the right of residence by family members in the event of death, departure, divorces,
annulment or termination of partnership
Article 12 provides for family members retaining the right to reside where the Union citizen dies or
leaves the Member State. Finland has transposed this Article for the most part effectively by section
161d of the Aliens Act. The only minor conformity issue relates to the last sentence of the second
paragraph of Article 12(2): “Sufficient resources” shall be as defined in Article 8(4)”. As stated above,
Article 8(4) has not been transposed.
Article 13 is similar to Article 12: it provides that family members can retain their right of residence in
cases of a divorce, annulment or termination of a civil partnership. Finland has transposed this Article
effectively by section 161e of the Aliens Act. They are few minor things worthy of note. Regarding
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Article 13(2), Finnish family law does foresee annulments (marriages end with either death or
divorce); but to cover both divorce and annulment under another Member State’s law, the Aliens Act
uses the term “marriage dissolution”. This is in conformity with the Directive. Regarding Article
13(2)(a), the Aliens Act does not transpose the words “prior to initiation of the divorce or annulment
proceedings or termination of the registered partnership” which leaves somewhat open how the times
are to be calculated. From the wording of s.161e, ss.2, point 1 AA which refers to marriage
dissolution/ending it appears that the relevant date is the date of the dissolution entering into force.
This interpretation would actually be more favourable to non-EU family members. As in the case of
Article 12, the reference to Article 8(4) and “sufficient resources” has not been transposed.
2.3.3 Retention of the right of residence (Article 14), and Article 15(2)
(a) General aspects
Article 14 provides for the circumstances in which persons retain the rights of residence granted by
Articles 6 and 7 and imposes a number of important restrictions on expulsions. Regarding
“unreasonable burden” in Article 14(1), the Aliens Act again refers to “resorting repeatedly to social
assistance’ “(see discussion re Article 7(1)). This would normally not be available to EU citizens in
the first three months anyway since Finland has made used of the option given by the Directive in
Article 24(2) (see discussion re Article 24(2)) so it is unlikely they could be an unreasonable burden in
the first three months. This is in conformity with the Directive.
A related issue has to do with Article 14(3) – the requirement that expulsion shall not be an automatic
consequence of recourse to social assistance. Section 167, ss.1, point 2 AA, which sets out the grounds
for “turning someone away” (preventing an alien from entering at the border or removing someone
who has arrived into the country without a residence permit), states that EU citizens (who are not
workers etc) can be turned away if they repeatedly resort to social assistance provided in the Act on
Social Assistance or other comparable benefits or in another similar manner during their short-term
stay, become an unreasonable burden on Finland’s social security system. The wording (“can” rather
than “will”) implies that it is a discretionary measure and thus arguably not “automatic”. According to
the preparatory materials of the Act the unreasonableness of “resorting repeatedly to social
Assistance” is to determined on a case-by-case basis – there is a reference to recital 16, Trojani and
Grzelczyk and it is stated that such expulsions are likely to be very rare. Nonetheless, the wording of
the Aliens Act seems to define “not automatic” more in the sense of there having to be some
evaluation rather than as a specific guarantee that someone will not be turned away solely because of
lack of funds. This may be a matter of interpretation but does raise the possibility of non-conformity.
(a) Article 15(2)-(3) expiry of document not a ground for expulsion
Article 15(1) is about the procedural safeguards for all decisions that relate to restricting free
movement. This has not been transposed separately. See below the discussion accompanying Articles
30 and 31 (the procedure and guarantees of the Administrative Act and Administrative Judicial
Procedure Act apply across the board, as do the problems associated with these).
Article 15(2) states that expiry of the identity card or passport cannot constitute grounds for expulsion.
Expiry is not one of the listed grounds for expulsion in s.168 Aliens Act (listed grounds include not
fulfilling the conditions of Ch.10, public health, public security, public policy). This is in conformity
with the Directive.
Article 15(3) states that a ban on entry cannot be imposed in situations of 15(1). This has been
effectively transposed – section 170 AA sets out the only circumstances under which a ban on entry
can be imposed.
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2.4 Right of permanent residence (Articles 16-21)
2.4.1 General rule for Union citizens and their family members (Article 16: eligibility)
Article 16 relates to eligibility for permanent residence. This provision has been effectively transposed
by Section 161g of the Aliens Act.
2.4.2 Acquisition of the right of permanent residence for workers/self employed

persons and their family members (Article 17)
Article 17 sets out exemptions for persons no longer working in the host Member State and their
family members. Finland has transposed this Article effectively by Section 163 of the Aliens Act.
2.4.3 Acquisition of the right of permanent residence by certain family members

who are not nationals of a MS (Article 18)
Article 18 allows family members of EU citizens who retain a right of residence under Article 12(2) or
Article 13(2). This provision has not been literally transposed and there is no provision to this effect in
the Aliens Act. However, both s.161d, ss.2 AA and s.161e, ss.3 AA both include the phrase: “before a
family member is granted permanent residence” (emphasis added), which implies permanent residence
will or at least can be granted in cases where the person can satisfy the requirements of s.161d AA and
s.161e AA. It would have been clearer to transpose this provision explicitly and the lack of a guarantee
that permanent residence will be granted could be seen to be an instance of non-conformity.
2.4.4 Documents certifying permanent residence for Union citizens (Article 19)
Article 19 deals with the permanent residence certificate for Union citizens. It has been effectively
transposed by Section 161h AA.
2.4.5 Permanent residence card for family members who are not nationals of a MS
(Article 20)
Article 20 provides for the permanent residence certificate for family members who are not Union
citizens by Section 162 AA. This too has been effectively transposed.
2.4.6 Continuity of residence (Article 21)
Article 21 relates to continuity of residence. This has not been specifically transposed as there are no
provisions on how to prove continuity of residence so the normal means applied in general will apply
here also. Finnish law starts from a presumption that parties can use any means of proof they choose.
The Administrative Act (section 31) merely states a party must give clarifications or explanations as to
the basis of their claim but does not specify how; so it is up to the applicant to decide how they wish to
prove what they wish to prove. This is probably in conformity with the Directive.
2.5 Common provisions (Articles 22-26)
2.5.1 Article 22 territorial scope
Article 22 is about the territorial scope of the Directive (the whole of the Member State) and states that
restrictions on movement may only be imposed where the same restrictions apply to nationals of the
Member State itself. This is adequately transposed as there are no provisions on this in the Aliens Act,
i.e., no restrictions on what the right of residence covers. In any case, the Constitution of Finland
(Section 9 subsection 1) guarantees that Finnish citizens and foreigners legally resident in Finland
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have the right to move freely within the country and to choose their place of residence. The only
exceptions to this – which apply equally regardless of nationality – would be cases of serious
harassment or domestic violence where a restraining order can be issued (on application) to protect the
life, health or freedom of another person. For those reasons a person may be ordered by a District
Court not to contact the harassed person.
2.5.2 Article 23 Related rights
Article 23 guarantees the right to take up employment by family members. Finland has effectively
transposed this provision by Section 164 AA.
2.5.3 Article 24: equal treatment
Article 24 provides for the principle of equal treatment. Apart from one exception, there has been no
explicit implementation of this provision. The only specific transposition of the equal treatment
provision is a change introduced to the Student Support Act (65/1994). Its s.1 (which includes a list of
persons with access to student support) was changed to include persons with a right to permanent
residence to comply with Article 24. The Act on Student Support also entitles EU citizens and their
family members to student support before acquiring permanent residence if their right of residence is
not based on studying (but e.g., family reunion). They need to have been granted a residence card or
residence certificate.
It was deemed that otherwise Article 24 was well-covered by existing law: Finland’s EU obligations,
including the obligation of equal treatment in Article 12 EC Treaty, were implemented by the Act
1994/1540 on Finland’s accession to the European Union (later Acts have implemented: Amsterdam
and Nice) so EU citizens are treated equally within the scope of the Treaty based on primary law. The
general Equality Act (21/2004) which bans any discrimination on nationality without objective
justification (covers e.g., employment) applies to everyone, not just EU citizens; unjustified on
nationality discrimination is also prohibited by the Criminal Code. Whilst this seems sufficient
certainly for EU citizens who, in practice, appear to encounter few problems, it might be less clear-cut
for some non-EU family members who might, in practice, encounter instances of discrimination. Such
instances are difficult to assess at an abstract level, however.
Just as a clarification regarding Article 24(2), as indicated above, the minimum sustenance support
based on the Act on Social Assistance (so-called “toimeentulotuki”) is available to all who need it for
survival, regardless of their nationality. However, the recipient would have to be ordinarily resident in
Finland, which would not usually be the case prior to having been in the country for three months. In
other words, sustenance aid would usually not be available in the first three months (except for
workers and self-employed persons who are engaged in a genuine economic activity but still need
social assistance). For residence beyond three months, sufficient funds are usually required (as above)
but social assistance can be resorted to in certain cases (see above); repeatedly resorting to social
assistance can lead to losing the right to residence (see above).
2.5.4 Article 25: general provisions concerning residence documents
Article 25 contains general provisions concerning residence documents. Regarding Article 25(1), there
are no provisions that include this type of requirement in the Aliens Act or elsewhere in legislation. As
indicated above, Finnish law is flexible about the means of proof. It is impossible to vouch for
administrative practice in all cases – it is at least possible that there might be instances where a person
could be asked to produce their residence certificate/card as the easiest, if not necessarily the only way
to prove their rights. For that reason it would have been good to transpose this requirement.
Regarding Article 25(2), the Act on Grounds for Payments in Administration (150/1992) sets out the
conditions for charging for documents issued by state authorities – the grounds therein are neutral and
make no reference to nationality. In the preparatory materials for the Aliens Act it was stated that the
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appropriate comparators for documents issued to EU citizens and their family members are the
payments charged for a Finnish passport/identity card and the payment charged for the residence
registration/residence card. This is a valid comparison. There are two implementing regulations
(Sisäasiainministeriön asetus ulkomaalaisviraston suoritteiden maksullisuudesta 1164/2006 and
Sisäasiainministeriön asetus poliisin suoritteiden maksullisuudesta 1254/2004, as amended) which
contain the current charges: a Finnish passport costs €46, an identity card €40 and a residence
registration/card costs €40. This is in conformity with the Directive.
2.5.5 Checks (Article 26)
Article 26 provides that Member States may perform checks to ensure that beneficiaries of the
Directive carry their residence certificates/cards in the same way as nationals carry their identity cards.
Finnish law imposes no obligation on Finnish nationals to carry any form of identification with them;
nor is there any obligation on non-citizens to do so. This optional Article has thus not been transposed.
2.6 Restrictions on the right of entry and residence on grounds of public policy,
public security and public health (Articles 27-29 and Article 33)
2.6.1 General principles (Article 27)
Article 27 sets out the general principles on restricting the rights given in the Directive. There have
been some cases in the courts which indicate that the Supreme Administrative Court is aware of, and
applies principles from ECJ case law (e.g., case KHO 2004:88 where the Court said restrictions must
be based on the individual conduct of the defendant that poses a real threat and emphasised that
previous convictions in themselves are not enough. Regarding Article 27(1), the transposing
provisions (s.156, ss.1 and s.156a, ss.1 AA) leave out the requirement that the grounds shall not be
invoked to serve economic ends. The wording of the Aliens Act seems to imply these grounds must be
substantive and not ostensible, as they provide an exhaustive list of grounds under which entry and
residence may be limited, and can be read to be in conformity. However, it could equally be argued, as
the Commission does, that this is an essential guarantee that ought not to have been left up to
interpretation, so this could also be interpreted to be an instance of inadequate transposition.
As to Article 27(2), it should be noted that although there is no proportionality requirement in Ch.10
AA, there is a general proportionality requirement in Ch.1, s.5 AA which applies throughout the Act,
regardless of whether or not the alien in question is an EU citizen. This is likely to be in conformity
with the Directive.
Article 27(3), on the other hand, is an example of non-conformity. The provision has not been
transposed in the AA. It is possible to adopt an implementing regulation on the exchange of
information – but none has so far been adopted on this issue.
2.6.2 Protection against expulsion Article 28
Article 28 sets out a number of protections against expulsion decisions. These have been mostly
adequately transposed by Finland by s.168 and s.168b AA.. The only non-conformity issue is raised
with regard to “imperative grounds of public security”, i.e., Article 28(3). Imperative grounds of
public security is defined in Ch.10, s.168, ss.5 AA as existing where an EU citizen is guilty of an act
which is punishable by no less than one year of imprisonment, and he or she, on grounds of the
seriousness of the crime or of continued criminal activity, is considered a danger to public security or
he or she is considered to seriously endanger the national security of Finland or another State. The
preparatory materials of the Act refer, in this regard, to ECJ case law in Bouchereau, Van Duyn, Calfa
and Orfanopoulos. The requirement of a minimum one year imprisonment seems fairly low as a
standard for imperative grounds. It does, however, actually include a rather limited number of serious
offences, mostly offences against the person (e.g., rape, aggravated sexual abuse of a child, aggravated
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assault, aggravated drug offences, and more serious terrorism-related offences). It also always requires
that the person who has been found guilty of an act punishable by no less than one year is also
considered a danger to public security (on grounds of the seriousness of the crime or of continued
criminal activity) or considered seriously to endanger national security.
There is some case law from the Supreme Administrative Court on this point, including two recent
cases (KHO 2006:83 and KHO 2006:82) which rely on the Directive (even though it had not been
transposed at the time). Both concerned Estonian nationals who had become EU citizens in 2004 and
had resided in Finland for over ten years. In the first case the applicant’s deportation and exclusion
order were upheld. He had been convicted of 4 aggravated drug offences in 1999 and a further offence
in 2003. He had two children in Finland with his Finnish ex-wife. The Supreme Administrative Court
held that he could not be deported on the grounds of the crimes themselves, but that the fact that he
was guilty of crimes both in 1999 and 2003 showed disregard for the prohibitions of the criminal law
and the danger posed by the importation of dangerous drugs. Thus there were “imperative grounds of
public security” that could justify his exclusion, despite his long period of residence in Finland. In the
second case, the applicant’s appeal was allowed and his deportation order and exclusion order
revoked. Unlike the applicant in the first case, this applicant had slightly stronger family ties to
Finland (wife and 2 children) and was economically active (with his wife); moreover, his crime, albeit
serious (manslaughter) was a one-off and the applicant had since then behaved in a manner that
showed he posed no threat to the safety of others. Therefore, there were no imperative grounds of
public safety.
It appears from these cases, and indeed from prior jurisprudence of the Supreme Administrative Court
that they take a strict stand toward individuals who are seen to persist in criminal activity (e.g. KHO
2004:89) and, especially with regard to drugs offences, even individual acts of criminality (e.g., the
early case of KHO 7.3.1997/557 which involved one serious drug offence with a conviction of 2,5
years – deportation order was upheld). In light of the ECJ’s case law, it appears possible that this
approach, which officially prohibits expulsions/deportations solely on the grounds of a conviction but
then finds an element of “dangerousness” from the nature of the crimes, especially regarding
imperative grounds, complies with the communication, but this by no means certain.
2.6.3 Public health (Article 29)
Article 29 relates to expulsions on public health grounds. Finland has effectively, indeed almost
literally, transposed this provision by Section 156a AA.
2.6.4 Expulsion as a penalty or legal consequence (Article 33)
Article 33 provides that an expulsion order cannot be issued as a penalty or a legal consequence of a
custodial penalty, unless the public health, security or policy grounds are met. This requirement has
been effectively transposed by Ch.10, s.168 AA. It is clear from this provision, which contains an
exhaustive list of grounds that expulsions may not be ordered just because of a custodial sentence.
(See also discussion above regarding the case law of the Supreme Administrative Court.) This is
exceptional as aliens who are not EU nationals and their family members covered by Chapter 10 may
be deported simply because of criminal convictions (by virtue of s.149 AA).
2.7 Procedural safeguards against decisions restricting free movement (Article 15

and Articles 30-31)
Articles 30 and 31 foresee certain procedural protections which apply when decisions are taken to
restrict the free movement of EU citizens and their family members (Article 15 makes reference to
these guarantees regarding procedural safeguards for all decisions that relate to restricting free
movement). As noted above, Article 15(1) has not been transposed separately in Finland. In order to
transpose Articles 30 and 31 Finland has modified the existing provisions of the Aliens Act to some
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extent, but these Articles have not been transposed as separate provisions. Regarding the transposition
of Articles 30 and 31 reference must thus also be made to the procedure and guarantees of the
Administrative Act and Administrative Judicial Procedure Act which apply across the board in
administrative matters. This makes it difficult to verify whether the legislation is in complete
conformity, and some concerns over conformity have to be raised.
2.7.1 Notification of decisions (Article 30)
Article 30 deals with the issue of the notification of decisions. According to Article 30(1) persons
ought to be notified in writing of any decision taken “in such a way that they are able to comprehend
its content and the implications for them”. The act that applies to these issues is the Administrative Act
(434/2003) which specifies that administrative decision should be given in writing (s.43) (in doing so,
the Act implements the constitutional requirement that “the principle that decisions should contain the
grounds should be implemented through law” (s. 21 of the Constitution). Because of this general
provision, the only amendment in the Aliens Act deemed necessary to transpose Article 30(1) was to
modify the rules on informing of a refusal of a visa. Section 155a, ss.3 AA now provides the applicant
must be notified of the refusal of a visa in writing and grounds must be given for the refusal unless this
is contrary to the security interests of Finland or another EU Member State. (N.B. “State security”
refers to both the Finnish state and any other EU Member State. A contrario this provision seems to
mean that the only reason for not giving the grounds for refusal is State security). The part “In such a
way that they are able to comprehend its content and the implications for them” has not been explicitly
transposed, and probably should have been, just to be clear on the standard required. The Aliens Act
does provide for a general obligation to translate in matters related to refusal of entry or deportation if
the alien does not understand Finnish or Swedish (Ch.14, s.203 AA), but it would have been clearer to
transpose this provision more faithfully to indicate that comprehension relates to both the content and
the implications.
Similar issues are raised with regard to Article 30(2) which requires that the persons concerned be
informed “precisely and in full of the public policy, security or health grounds on which the decision
taken is based”. Again, the general rule is in the Administrative Act which states that any decision
“must include the grounds that lead to it” and that those grounds “must make clear which reasons and
explanations have influenced the decision and which statutory provisions have been applied” (s.45).
The Aliens Act again only contains the specific provision on notifying the grounds for visa decisions
(Ch.10, s.155a, ss.3 AA, above). The Aliens Act also does not have specific provisions on “informing,
precisely and in full”. For all decisions not related to visas, the applicant would have to rely on the
provisions on good governance in the Administrative Act. The drafters of the amendments to the
Aliens Act seem to have assumed this is enough – it is possible to disagree, considering the
importance of these guarantees to individuals. It would have been far better to make these guarantees
explicit even if it impacts on the structuring of the Aliens Act.
A related conformity issue is also raised with regard to Article 30(3), which demands that the
notification shall specify the court or administrative authority with which the person concerned may
lodge an appeal and the time limit for the appeal. The general rule is once again in the Administrative
Act (s.47). The second sentence of Article 30(3) states that “save in duly substantiated cases of
urgency, the time allowed to leave the territory shall be not less than one month from the date of
notification”. In this respect the Aliens Act was changed with the aim of complying with Article 30(3):
s.172, ss.1 AA allows a decision on “turning away” (refusing entry at border or removal of someone
who has arrived in the country without a permit) to be enforced immediately regardless of any appeal
unless otherwise ordered by an administrative court “if the matter is justifiably urgent,” and s.172, ss.5
AA states that a decision on turning away or deportation (removal of someone who resides in the
country with a permit/whilst registered as required/after permit or registering has expired) must
provide for at least one month for the person to leave the country, unless “urgent justified grounds for
leaving the country exist”. “If the matter is justifiably urgent” and ‘urgent justified grounds’ are
clearly intended to refer to ‘duly substantiated cases of urgency’ – the wording of the provisions leaves
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it open whether “justifiably urgent” is exactly the same as “duly substantiated cases of urgency”. If so,
the provisions would be in conformity. There is not yet any case law on this.
2.7.2 Procedural safeguards under Article 31
Article 31 raises similar difficulties although the provisions appear to be largely in conformity. Article
31(1) provides for administrative redress procedures. In this regard, reference can be made, first of all,
to the Constitution which guarantees everyone the right to have their case heard appropriately and
without undue delay by a court or other public authority and the right to judicial review (s. 21).
Chapter 13, s.190 of the Aliens Act provides that appeals under the Aliens Act go to an administrative
court as provided in the Administrative Judicial Procedure Act and the appeal prohibitions do not
remove this right so this appears to be in conformity. Regarding Article 31(2), the grounds for turning
away (refusal of entry) are in Ch.13, s.172 appear to mostly cover the three requirements of Article
31(2), as a decision on turning away (refusal of entry) can always be suspended by an administrative
court (ss.1-2) and deportation can only take place after a final decision, in other words after all appeal
channels have been exhausted (ss.3).
Article 31(3) and (4) have not been explicitly transposed as Finnish law places no relevant limits in
these regards. There is nothing in the Administrative Judicial Procedure Act or the Aliens Act that
would prevent an examination of the legal as well as the factual grounds of the decision (Article
31(3)). The appeal procedure does not foresee excluding a person from the territory whilst the
deportation appeal is ongoing so there is no provision in the Aliens Act regarding Article 31(4). There
is no case law on this point.
2.7.3 Exclusion orders (Article 32)
Article 32 of the Directive deals with the duration of exclusion orders. Finland has effectively
transposed this provision by section 170 AA
2.8 Final provisions (Articles 34-41)
2.8.1 Article 34: publicity
Article 34 is about publicity. The changes to the Aliens Act because of the Directive were publicised
in the media and there has been training for immigration officials on the changes, provided by the
Ministry of the Interior. As stated above, the Aliens Act was largely in conformity prior to 2007
because it had been reformed in 2004 (when the Directive was already being negotiated and could be
taken into account in drafting the legislation). The Finnish Immigration Service publicised the most
recent changes when they took effect in 2007 and provides accurate information on EU citizens’ rights
on its website (http://www.migri.fi). All information is available in English (as well as Finnish and
Swedish) – some information is also available in other languages.
2.8.2 Abuse of rights (Article 35)
Article 35 relates to abuse of rights. This provision was transposed by s.172a AA (misuse of rights)
which contains no mention of proportionality or procedural safeguards. As discussed above, there is a
general proportionality requirement in Ch.1, s.5 AA which applies throughout the Act. The same
problems relating to imprecision discussed above regarding Articles 30-31 are raised here.
Considering the importance of free movement it would have been clearer to transpose these in s.172a.
There is no case law from the Supreme Administrative Court on this point.
2.8.3 Sanctions (Article 36)
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Article 36 allows Member States to lay down sanctions for breach of offences. This is transposed by
Ch.12, s.185 AA, which provides for a violation of the Aliens Act. Such violations may involve
residing without the required travel document, visa or residence permit and negligent failure to register
residence or apply for a residence card or permanent residence card. Violation of the Aliens Act is a
relatively minor offence punishable by a fine only (see discussion above regarding how fines are
calculated) and convictions are rare.
2.8.4 More favourable provisions (Article 37)
Article 37 on more favourable provisions has not been individually transposed but the Aliens Act does
contain more favourable provisions relating to Nordic citizens (because of the Nordic Passport Union)
which have been retained (one of the conditions for Finland joining the EU was to preserve the Nordic
Passport Union intact). It is perhaps worth noting that in one notable instance the Directive appears to
have resulted in the adoption of lower standards: under the 2004 Aliens Act Finland gave EU citizens
the right to permanent residence to after 4 years – now that has been changed to 5 years as in the
Directive. The change, it was argued, was justified in the ‘interests of harmonisation’ – without any
reference to Article 37.
2.8.5 Transposition
Article 40 sets out the transposition requirements. As stated above, Directive 2004/38/EC was
implemented in Finland by amending the Aliens Act (amendment 360/2007). The amending Act was
adopted on 23 March 2007 and entered into force on 30 April 2007 and was thus transposed nearly a
year late.
The Aliens Act makes reference to Directive 2004/38/EC and a table of correspondence was submitted
to the Commission by the Finnish government on national transposition.
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BIBLIOGRAPHY:
Barnard, C. The Substantive Law of the EU, 2nd ed. (Oxford University Press, 2007)
Carrera, S. ‘What Does Free Movement Mean in Theory and Practice in an Enlarged EU?’ 2005
European Law Journal 11(6), 699–721
Chalmers, D. et al. European Union Law (Cambridge University Press, 2006)
Craig, P. and de Burca. G. EU Law: Text, Cases and Materials, 4th ed. (Oxford University Press,
2007)
Elsmore, M. and Starup, P. ‘Case C-1/05, Yunying Jia v. Migrationsverket, Judgment of the Court
(Grand Chamber), 9 January 2007’ 2007 Common Market Law Review 44(3), 787–801
Kuosma, T. Uusi ulkomaalaislaki (Multikustannus, 2004)
Maahanmuuttovirasto, Vuosikertomus 2007 (Maahanmuuttovirasto, 2008)
Martin, D. ‘Comments on Jia v. Migrationsverket (Case C-1/05 of 9 January 2007), Hartmann v.

Freistaat Bayern (Case C-212/05 of 18 July 2007), Geven v. Land Nordrhein-Westfalen (Case C-
213/05 of 18 July 2007) and Hendrix v. Raad van Bestuur van het Uitvoeringsinstituut
Werknemersverzekeringen (Case C-287/05 of 11 September 2007)’ 2007 European Journal of
Migration and Law 9(4), 457–71
Olivier, B. and Reestman, J.H. ‘European Citizens’ Third-Country Family Members and Community
Law (Yunying Jia v. Migrationsverket)’ 2007 European Constitutional Law Review 3, 463–75
Spaventa, E. ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and Its
Constitutional effects’ 2008 Common Market Law Review 45(1), 13–45
Spaventa, E. ‘Case C-109/01, Secretary of State for the Home Department v. H. Akrich’ 2005
Common Market Law Review 42(1), 225–39
Uusikylä, P. et al. Uudistuva ulkomaalaisvirasto (UVI, 2001)
Ward, I. A Critical Introduction to European Law, 2nd ed. (LexisNexis UK, 2003)
Responses from Finnish authorities to EC Commission questionnaire on the application of Directive

2004/38/EC, received on 17 July 2008.
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ANNEX I: Table of concordance for Directive 2004/38/EC
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ANNEX II: List of relevant national legislation and administrative acts
• Aliens Act 301/2004, as amended by Act 360/2007 (this Act is the principal transposing
instrument) http://www.finlex.fi/fi/laki/ajantasa/2004/20040301
• Law on Registered partnerships (Laki rekisteröidystä parisuhteesta) 950/2001

http://www.finlex.fi/fi/laki/ajantasa/2001/20010950
• Administrative Act (Hallintolaki) 434/2003 http://www.finlex.fi/fi/laki/ajantasa/2003/20030434
• Constitution of Finland (Suomen Perustuslaki) 1999/731

• Passport Act (Passilaki) 671/2006 http://www.finlex.fi/fi/laki/ajantasa/2006/20060671
• Identity Card Act (Henkilökorttilaki) 829/1999

• Act (1994/1540) on Finland’s accession to the European Union

• Equality Act (Yhdenvertaisuuslaki) 21/2004 http://www.finlex.fi/fi/laki/ajantasa/2004/20040021
• Act on Social Assistance (Laki toimeentulotuesta) 1412/1997

• Act on Student Support (Opintotukilaki) 65/1994

• Act on Grounds for Payments in Administration (Valtion maksuperustelaki) 150/1992

• Administrative Judicial Procedure Act (Hallintolainkäyttölaki) 586/1996

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ANNEX III: Selected national case law
Supreme Administrative Court (Korkein hallinto-oikeus):
• KHO 2006:83 (9.11.2006) http://www.kho.fi/paatokset/37639.htm
• KHO 7.3.1997/557 (7.3.1997) http://www.finlex.fi/fi/oikeus/kho/muut/1997/199700557
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ANNEX IV: ID-card for Union citizens and family member
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Conformity Study For Finland Directive 2004/38/EC On The Right of Citizens of The Union and Their Family Members To Move and Reside Freely Within The Territory of The Member States

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Conformity Study for Finland

Directive 2004/38/EC on the right of citizens of the Union and their

EXECUTIVE SUMMARY ......................................................................................................................... 5

SUMMARY DATASHEET ........................................................................................................................ 9

ABBREVIATIONS USED ....................................................................................................................... 11

2 LEGAL ANALYSIS OF THE TRANSPOSING MEASURES FOR DIRECTIVE 2004/38/EC................. 15

ANNEX I: Table of concordance for Directive 2004/38/EC

2. Assessment of the transposition

a) Incomplete transposition or non-transposition

b) Incorrect or imprecise/ambiguous transposition

Art. 3(1) Insertion of a requirement of a ‘legal and non-temporary stay’ in a Member

c) Minor instances of non-conformity

Art. 27(1) Last sentence not explicitly transposed.

AA Aliens Act (2004, as amended by Act 360/2007)

ECJ European Court of Justice

KHO Korkein hallinto-oikeus (Supreme Administrative Court)

Free movement as a fundamental freedom of the internal market

1.2 Framework for Transposition and Implementation of Directive 2004/38/EC in

1.2.1 Distribution of competences according to the national Constitution

In Finland, immigration control is extensively regulated by legislation (and, supplementing that,

1.2.2 General description of organisation of national authorities implementing

2 LEGAL ANALYSIS OF THE TRANSPOSING MEASURES FOR DIRECTIVE

Definitions: the concept of family members (Article 2)

Beneficiaries and facilitation of the right of entry and residence (Article 3)

• Requirements under Finish law: legal and non-temporary manner

• Personal scope of other family members

2.2 Rights of exit and entry (Articles 4 and 5)

Right of exit (Article 4)

Right of entry (Article 5)

2.3 Right of residence

2.3.1 Right of residence for up to 3 months (Article 6)

(a) General conditions under Article 7

(b) Administrative formalities for Union citizens (Article 8)

(a) General aspects

(a) Article 15(2)-(3) expiry of document not a ground for expulsion

2.4.2 Acquisition of the right of permanent residence for workers/self employed

2.4.3 Acquisition of the right of permanent residence by certain family members

2.4.6 Continuity of residence (Article 21)

2.5 Common provisions (Articles 22-26)

2.5.1 Article 22 territorial scope

2.5.2 Article 23 Related rights

2.5.3 Article 24: equal treatment

2.5.4 Article 25: general provisions concerning residence documents

2.5.5 Checks (Article 26)

2.6.1 General principles (Article 27)

2.6.2 Protection against expulsion Article 28

2.6.3 Public health (Article 29)

2.6.4 Expulsion as a penalty or legal consequence (Article 33)

2.7 Procedural safeguards against decisions restricting free movement (Article 15

2.7.1 Notification of decisions (Article 30)

2.7.2 Procedural safeguards under Article 31

2.7.3 Exclusion orders (Article 32)

2.8 Final provisions (Articles 34-41)

2.8.1 Article 34: publicity

2.8.2 Abuse of rights (Article 35)

2.8.3 Sanctions (Article 36)

2.8.4 More favourable provisions (Article 37)

Chalmers, D. et al. European Union Law (Cambridge University Press, 2006)

Kuosma, T. Uusi ulkomaalaislaki (Multikustannus, 2004)