Aliens Act – translation outdated

[Ralf Grahn]

It is commendable that Finnish authorities publish general information to interested persons in English and other languages in addition to the national languages, Finnish and Swedish.

In many cases short and timely information on the web is all a person needs to get started with, for instance, his or her visa application.

But there are always those cases which do not fit neatly into general descriptions. More detailed information is required, and one of the means to this end has been the publication of unofficial translations of legal acts. A host of these translations can be found on http://www.finlex.fi > English.

The Aliens Act 301/2004 is fundamental for foreign nationals and has been translated, but the present translation is rapidly becoming outdated. Only the amendment 653/2004 is included in the translation; eight subsequent amendments are not.

These are 581/2005, 34/2006, 49/2006, 380/2006, 420/2006, 619/2006, 673/2006 and 849/2006.

I hope that the Ministry of the Interior quickly updates the translation of the Finnish Aliens Act. At the same time the new translation could be fitted into a more compact format, considerably less than the present 176 pages.


Ralf Grahn

[Ralf Grahn]

I warned that the English translation of the Aliens Act does not include the latest amendments.

In addition to the amendments already made, there are four government proposals pending concerning the Aliens Act, namely 31/2006, 94/2006, 156/2006 and 205/2006.

The latest proposal (205/2006) concerns EU citizens and their family members since it proposes to transpose the Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

The directive should have been brought into force by 30 April 2006, so Finland is a bit late.

Since the time for transposition has passed, some EU citizens and their family members might be interested in perusing the directive and demanding its direct application, especially if they reside or plan to reside in Finland as plain citizens or dependants (not as economic actors such as workers, self-employed etc.).


Ralf Grahn

[daryl]

I warned that the English translation of the Aliens Act does not include the latest amendments.

In addition to the amendments already made, there are four government proposals pending concerning the Aliens Act, namely 31/2006, 94/2006, 156/2006 and 205/2006.

The latest proposal (205/2006) concerns EU citizens and their family members since it proposes to transpose the Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

The directive should have been brought into force by 30 April 2006, so Finland is a bit late.

Since the time for transposition has passed, some EU citizens and their family members might be interested in perusing the directive and demanding its direct application, especially if they reside or plan to reside in Finland as plain citizens or dependants (not as economic actors such as workers, self-employed etc.).


Ralf Grahn

It would appear that late implementation of Community Law is becoming a trend as the Finnish Presidency of the European Union progresses.

Government bill no. 94 of 2006 is intended to implement a Directive with an implementation deadline that expired last January. A couple of members of this forum submitted applications last spring based on this Directive, leading to a merry comedy of maladministration at local police stations and the Directorate of Immigration. The fallout from this includes complaints pending at the offices of the Parliamentary Ombudsman and the Attorney General, and an appeal pending at the Administrative Court of Helsinki. As part of this highbrow entertainment, the Ministry of the Interior has argued (IMO unconvincingly) that the provisions of the Directive do not have "vertical direct effect".

On the other hand, in written advice given to another client seeking immigration clearance for a relative the Directorate of Immigration recommended that the application should be withdrawn and resubmitted "because a new Community Directive has taken effect". In UVI's view this Directive (which I think is the one that Ralf is talking about) has evidently managed to gain direct effect, i.e. to become enforceable despite the absence of national implementing provisions.

It is difficult to escape the conclusion that in UVI's view Community Law gains direct effect only when it limits the rights of an applicant, but not when it enlarges those rights. Anyway, one or two troublemakers (who shall remain anonymous) are eager to see how the administration wriggles out of this particular non sequitur, as the Finnish government's official position appears to be the polar opposite of several rulings of the European Court of Justice.

daryl

[Ralf Grahn]

Quite right, Daryl, it is hard to argue that a directive has no effect when the period for transposition has expired.

I do not suppose that running late has to do with malicious intent, but simply with too few persons drafting legislation in the Ministry of the Interior.

The result, however, is problematic, both for UVI and police officials who should have up-to-date legislation to apply and for applicants who should be able to trust that the written Act is the law on the subject.

For all concerned the pace of amendments is a stress factor.

And the translation of the Aliens Act is, as said, falling even further behind.

[daryl]

Quite right, Daryl, it is hard to argue that a directive has no effect when the period for transposition has expired.

It depends on the Directive and on the special circumstances of individual cases. The European Court of Justice has confirmed the doctrine of vertical direct effect. According to this doctrine, a term of a Directive gains effect in vertical relationships by no later than the implementation deadline of the Directive. In other words, it becomes enforceable in relationships between the individual and the Member State (including its agencies). Even after the deadline for implementation has passed, A Directive does not affect relationships between one individual and another until it has been implemented in national law.

In order to exert vertical direct effect, a term of a Directive also has to be sufficiently clear and absolute. It is here that the Finnish government has argued that the terms of Council Directive 2003/109/EC fail to gain vertical direct effect. However, as this argument offered by the police bureau of the Ministry of the Interior comes in a letter that also clearly misunderstands the content of the Directive in question, I am even less likely to accept it at face value. We shall see what the European Commission has to say about this.

I do not suppose that running late has to do with malicious intent, but simply with too few persons drafting legislation in the Ministry of the Interior.

The project to draft legislation implementing Council Directive 2003/109/EC was announced on 17 June 2005 http://www.hare.vn.fi/mHankePerusSelaus.asp?h_iId=10736 with a view to submitting a bill to Parliament in the autumn session of that year. Despite this tight deadline, the Ministry of the Interior has now admitted that government bill no. 94 of 2006 (submitted to Parliament on 21 July 2006) includes at least one proposal that has nothing to do with implementing Council Directive 2003/109/EC, even though the bill claims to be about national implementation of Community Law only. The preparatory process at the Ministry of the Interior therefore overstepped its terms of reference and its timetable to create a legislative proposal that is misleading to the point of deliberate deception.

No representatives of immigrants were consulted during the year-long process of drafting the legislative proposal.

The result, however, is problematic, both for UVI and police officials who should have up-to-date legislation to apply and for applicants who should be able to trust that the written Act is the law on the subject.

Two local police stations (Espoo and Nurmijärvi) got themselves completely tied up in knots about how to deal with applications submitted in the spring pursuant to Council Directive 2003/109/EC, not least because of a complete failure to understand the most fundamental administrative laws of Finland. These authorities were completely unprepared to deal with a situation in which the deadline for implementing Community Law has expired but national legislation is either late or incorrect.

daryl