Citizenship by application

[daryl]

Hello,
6months B3 +
2 years B3 +
2 yearsB1 +
1 year A = confusion?

The total time I am living in Finland is almost 5.5 years now. Can I
apply in 2007 for Finnish citizenship, when I reach the 6 year limit?

The reason I got first B3 for 6 months was, the fact that I was really living temporarily in Finland, but for the 2 year B3 permit I got next; I had a permanent work contract as a researcher full-time-paying taxes. They still gave me B3 because I was a "doctoral student" (I already graduated with M.Sc. in IT before coming to Finland). After 2 years of B3, I applied for A2 but I got a B1 for 2 years, not an A2 because "my status was B3 before and they cannot give me A2 after B3", even though my employee supported me for A2 because of the importance of my job. After that new alien's act came and I got an A status after the act; and now I have to wait 4 years for permanent permit according to police and labour offfice. So it will be 9 years! for me just to get a permanent permit? Is this normal; while many working people get it in 5 years max?
When I inquired about it last year, they told me it is impossible to change old statuses because it is an "old decision". What are my chances in changing these by going to court? I strongly believe the decisions were faulty because I had permanent contract in all cases.

But in the mean time I am registered in majistraatti as "permanent resident" since 2001 and I voted in local elections 2003. I also have KELA since 2001. Are these important in citizenship?

Can I, or do you advise going to court for status change before applying to citizenship to clear things and avoid "valohoito"?? (By the way I had been subject to "extreme valohoito" by many officials; so tell me about it, but you can't do anything more than just complaining or can you?)

If you think I have a chance, what would enhance my application? Help greatly appreciated!!

Thanks!:)
tempoman

One obvious point to make here is that nothing prevents you from applying, and then from submitting the matter to the administrative court if you don't like the outcome. The court will then review the case on its objective merits.

Another point is that the officials with whom you spoke do not appreciate when something has been "decided" in administrative law. The administrative courts have confirmed in several cases that the old status codes were not administrative decisions.

Most advice provided by junior officials at service counters in foreign languages is rubbish. The report that "my status was B3 before and they cannot give me A2 after B3" suggests strongly that this case occurred in the Uusimaa Region. The Ministry of Labour has confirmed that the regional policy guidelines for employment offices in Uusimaa were incorrect for some years.

The situation of "working students" under the old Aliens Act was a complex one, and the judgements of the courts and decisions of public authorities were highly inconsistent. The new Act has cleared up this problem at a stroke. Under the old Act, there was a strong presumption that the residence of a university student was always temporary. However, there was also a requirement that the studies should make adequate progress in order for a permit to be issued on this basis. Many "working students" were issued with permits "for studying" despite the fact that their studies had made no progress whatsoever. These permits were not issued in cases where the student was unemployed, so it is quite obvious that the real reason for issuing the permits was work, not studying.

In your individual case I would certainly be inclined to start counting days from the beginning of the first permit issued for the purpose of work alone (the B1 permit). The Uusimaa guidelines were clearly incorrect in these cases and the B1 status was used to classify many decisions in cases where the Ministry of Labour insists that the classification should have been A2. I can provide a copy of the Ministry of Labour decision confirming this if you need it.

What matters in the end, however, is the view that the administrative court takes of the character of your residence based on its objective features. The old status codes are completely irrelevant to this. One recent judgement of the Administrative Court of Helsinki suggests that the court is now applying the "permanence" standards of the new Aliens Act when assessing the character of residence before May 2004. This approach would entail that any permit issued on the basis of an open-ended job was a permit for residence of permanent character.

One further point: it seems to me that you may have been eligible for a permanent residence permit at the time when the first A2 permit was issued. I would argue that eligibility for the permit under the new Act should be reckoned from the date when the first B1 permit began. You can test this at any time (today if you like) by submitting an application for a permanent residence permit and filing an appeal to the court if necessary. In my experience it is a good idea to get copies of all the information held by the authority and review this carefully before submitting the application

daryl

[daryl]

Daryl Wrote:

Under the new Act, the employment authority must examine the facts of the employment and custom and practice in the industry concerned. It cannot simply assume that a migrant worker has come to Finland temporarily because the job has an apparent end-date

Does this mean that all the temporary permits issued (for closed ended contracts) in the old aliens act can be questioned? I was in B1 for two years before I applied for an A permit. By the new act, I see friends of mine (who have closed ended contracts) get A permit directly without any B permits!

The new Aliens Act severely marginalises temporary permits for workers. It requires that the work in such cases must be explicitly temporary (a mere written employment contract is not enough to show this).

Particularly in Uusimaa the behaviour of local employment offices was not consistent with the old Aliens Decree and with Ministry of Labour rules, with the outcome that permits tended to be classified as B1 instead of A2.

There was no such thing, under the old Aliens Act, as an application for a particular "status". The "status code" was merely supposed to describe or classify the grounds for issuing the permit, but was not a decision of the authority.

If the content of your job remained the same throughout and there were no special grounds for the initial temporary employment (e.g. you were substituting for some other employee on study leave etc.), then I would be inclined to argue that the job was permanent and that the grounds for residence were likewise permanent. The eligibility period should then be reckoned from the beginning date of the first permit that was issued under these circumstances.

daryl

[tempoman]

Daryl, thanks very much for your detailed answer.

One point is that, I still argue that even my first 2 years B3 status is wrong and those years I spent here should also be counted to my residence.
(I am not counting my first and first B3 status which I had for 6 months for different grounds, I myself accept it as "temporary by nature")

I don't understand why my 2 years of B3 status not counted? As I mentioned in my previous post, I have a KELA card since 2001 which I was in B3 status. I had a KELA card, the whole time I was in B3 status and of course after that too. According to KELA, to have a KELA card, I have to be living in Finland continuously, or permanently as they say and have a full-time job.
According to KELA, I am a permanent resident since 2001 even though I had a residence permit with B3 status. In this case it seems, two goverment branches do not agree on a resident person's status?

So, according to which side, do courts or UVI (for citizenship) decide? KELA's side or the other one who gave the permits to me

Moreover, nothing has changed in my working conditions or etc. when I was "upgraded" from B3 to B1, evertyhing is same when I had B3 and continued in B1. If all working conditions, contracts etc. is the same, then why not count the time on B3 but count B1 for the purpose of permanent residence?
Why did they give me B3 in the first place?? If I remember correctly, it was written everywhere that, B3 status is for seasonal employees (3months) and "berry pickers" and for real temporary work- How can they decide B3 status in my case and give a B3 status for 2 years?

Thanks!
Tempoman
--
Sing the tune of:....OOOoo.. I am an alien, I am a legal alien.....

[daryl]

Daryl, thanks very much for your detailed answer.

One point is that, I still argue that even my first 2 years B3 status is wrong and those years I spent here should also be counted to my residence.
(I am not counting my first and first B3 status which I had for 6 months for different grounds, I myself accept it as "temporary by nature")

I don't understand why my 2 years of B3 status not counted? As I mentioned in my previous post, I have a KELA card since 2001 which I was in B3 status. I had a KELA card, the whole time I was in B3 status and of course after that too. According to KELA, to have a KELA card, I have to be living in Finland continuously, or permanently as they say and have a full-time job.
According to KELA, I am a permanent resident since 2001 even though I had a residence permit with B3 status. In this case it seems, two goverment branches do not agree on a resident person's status?

So, according to which side, do courts or UVI (for citizenship) decide? KELA's side or the other one who gave the permits to me

Moreover, nothing has changed in my working conditions or etc. when I was "upgraded" from B3 to B1, evertyhing is same when I had B3 and continued in B1. If all working conditions, contracts etc. is the same, then why not count the time on B3 but count B1 for the purpose of permanent residence?
Why did they give me B3 in the first place?? If I remember correctly, it was written everywhere that, B3 status is for seasonal employees (3months) and "berry pickers" and for real temporary work- How can they decide B3 status in my case and give a B3 status for 2 years?

Thanks!
Tempoman
--
Sing the tune of:....OOOoo.. I am an alien, I am a legal alien.....

The old status code system went through many incarnations, but was finally codified in the Aliens Decree that took effect on 1 May 1999. You say that you have been living in Finland for just under 5 and a half years, so this last version of the system should have been applied to you.

Under this version B3 was defined as follows:

B.3 Henkilö oleskelee tai tekee työtä maassa tilapäisesti.

This is obviously a catch-all category for temporary residents not included under B1 (employee or self-employed) and B2 (student). The B3 classification really tells us almost nothing about the grounds on which the permit was issued.

From your case history I guessed that the alleged temporary character of your residence had something to do with your postgraduate studies - which makes it slightly puzzling that the classification was not B2. To know for sure what the grounds were for issuing the permit, I should have to study your application documents.

Leaving all of this aside, I know for a fact that the B1 classification was incorrectly applied to migrant workers in Uusimaa, and quite possibly also elsewhere. For all I know, however, your permits may have also been classified as B3 under circumstances in which A2 was appropriate.

I would like to stress, however, that none of these classifications are administrative decisions that settle the matter. The principle of objectivity in administration requires the authority (and, by extension, the administrative court) to examine the objective facts that form the grounds for any decision affecting the rights of an applicant or other concerned party.

Your reference to Kela is not strictly relevant, as the social insurance system has its own criteria for determining when residence is of permanent character. However, there is an interesting judgement of the Insurance Court from some years back in which a decision of a local social welfare board was cancelled because it was based solely on the status code used to classify a residence permit. That judgement really only underlined the point that the old status codes were not administrative decisions.

If you are convinced that the character of your residence has been permanent for 5 and a half years, then you can test this by filing your citizenship application and arguing any appeal on this basis. This will cost you time, energy and a processing fee, but it is certain to be a highly educational process.

My advice is to get your documents from the authority and review them carefully before filing your application. You should check these documents for any features that support or undermine your opinion. These features include the nature and special circumstances of your work and your own specific claims about the permanence of your residence. If there are relevant entries in the file that came from third parties (e.g. an employer) and were never shown to you, then you may refer to a failure by the authority to hear you properly in respect of these entries.

daryl

[tsuishant]

I also have questions on citizenship by application, though nothing to do with the types of permits.

My question is, whether there is any "hidden rule" in the citizenship application, which is not stated in the Act but could be used as a possible refusal reason?

For instance, does the amount of trips affect the decision, when the total days are not "too much"? In the application form there are only 6 rows to fill out for trips under 1 month, if there are more than 6 trips, frequencty of trips need to be given. To me it feelsl ike, if one has too many trips away from Finland, even short, there is a reason to doubt whether he really lives in Finland..

Besides, the employer info needs to be stated. My employer locates in Holland and does NOT register in Finland, would this imply that I might not live in Finland in practice? (even though I do live here and work/pay tax in Finland)

I ask this, because when I tried to figure out how to pay my tax and how to join Unemployement funds under this kind of special employment relationship, many officials were not able to give suggestions or correct answers to solutions, which makes me wonder if this is also going to be an issue in citizenship application...

Thank you!!

[daryl]

My question is, whether there is any "hidden rule" in the citizenship application, which is not stated in the Act but could be used as a possible refusal reason?

Here is my view of the matter.

If this question refers to laws that are not made by Parliament and published in the statute book, then the answer is clearly no, there are no such laws. This is the meaning of a Constitutional State.

Every public authority has to interpret the laws that are made by Parliament, however, and so the question arises of what happens when an intepretation effectively creates a new legal rule.

The short answer to this is that it is the business of the administrative courts to ensure that the administration does not usurp the legislative authority of Parliament and that it remains within the confines of the general principles of adminstrative law (objectivity, equity, conformity to purpose and proportionality).

This means that the courts review the interpretations of the administration and decide whether these interpretations lie within the authority's margin of discretion. Most interpretations are obvious, but there are some that are genuinely surprising.

In the light of past experience, I think it is fair comment to say that the Directorate of Immigration reads the law like the Devil reads the Scriptures. However, the same cannot be said of the administrative courts and especially of the Supreme Administrative Court.

With newer laws especially, this means that we must be ready to challenge the Directorate's interpretations in the courts.

For instance, does the amount of trips affect the decision, when the total days are not "too much"? In the application form there are only 6 rows to fill out for trips under 1 month, if there are more than 6 trips, frequencty of trips need to be given. To me it feelsl ike, if one has too many trips away from Finland, even short, there is a reason to doubt whether he really lives in Finland.

I don't have much experience of the Nationality Act, but the underlying principle here is quite clear: the qualification periods for citizenship are meant to reflect real and concrete residence and life in Finland. Merely maintaining an address in Finland is not enough.

In other words, you should be prepared to go into as much detail as is necessary to show that you really have been breathing the air of Finland during the qualifying period. This, and only this, is the objective fact that will matter for this purpose.

Besides, the employer info needs to be stated. My employer locates in Holland and does NOT register in Finland, would this imply that I might not live in Finland in practice? (even though I do live here and work/pay tax in Finland)

I ask this, because when I tried to figure out how to pay my tax and how to join Unemployement funds under this kind of special employment relationship, many officials were not able to give suggestions or correct answers to solutions, which makes me wonder if this is also going to be an issue in citizenship application...

Thank you!!

The domicile of your employer is not relevant to your claim for citizenship. What matters is where you have physically been living during the qualifying period.

Your employer's lack of registration in Finland could become an issue for your employer if certain legislative proposals reach the statute book. At the very least a reputable employer should be entered in the withholding tax register.

I am not surprised that you encountered problems in paying tax, as it is supposed to be the duty of your employer to withhold tax from your earnings at source. It is unclear to me how your employer could forward your withholding tax and pay the employer's social security contribution without an entry in the withholding tax register, as the associated enterprise ID code (Y-tunnus) must be provided in order to credit the payment to the relevant bank account.

You should make sure that the tax authority has not classified you as a self-employed person, as this can lead to technical problems at a later stage over pension coverage. If you are providing services in Finland, then there are also VAT questions to consider.

None of this affects your situation with respect to the residence period qualification for citizenship.

daryl

[Hank W.]

You should make sure that the tax authority has not classified you as a self-employed person, as this can lead to technical problems at a later stage over pension coverage.

I wouldn't worry about pension coverage; I'd worry being reamed with a bignum bill of unpaid pension insurance fees, mandatory social insurance etc. "employer fees", payable in 14 days with no complaint recourse until after you pay and a direct threat of collection procedures...

[tsuishant]

For this matter, it was a Finnish lawer who suggested my Dutch employer doing so.. honestly I have been worried, whether I will end up paying more lots of extra things at later stage.

The Finnish lawer suggested that the Dutch employer can pay social security and my pension coverage directly from their bank account in Holland, by filling out the TEL form of a Finnish insurance company.

In this way, every month my salary was deducted 4.8% as my share of pension insurance.

But as Daryl said without Y-tunnus they can't even do it properly?

As for my tax, instead of withholding my tax, I was suggested to pay it by myself (to avoid employers troubles). I went to the tax service point twice to ask this matter. They just asked me fill out the income by myself and write there: the foreign employer will pay my pension coverage. Then they will make a decision and send me bills several times a year to pay the "ennakkopidatys",

Somehow I don't feel very safe about this, the personnel in tax point wasn't very friendly and I had no idea how they actually see my case.

[daryl]

For this matter, it was a Finnish lawer who suggested my Dutch employer doing so.. honestly I have been worried, whether I will end up paying more lots of extra things at later stage.

The Finnish lawer suggested that the Dutch employer can pay social security and my pension coverage directly from their bank account in Holland, by filling out the TEL form of a Finnish insurance company.

In this way, every month my salary was deducted 4.8% as my share of pension insurance.

But as Daryl said without Y-tunnus they can't even do it properly?

As for my tax, instead of withholding my tax, I was suggested to pay it by myself (to avoid employers troubles). I went to the tax service point twice to ask this matter. They just asked me fill out the income by myself and write there: the foreign employer will pay my pension coverage. Then they will make a decision and send me bills several times a year to pay the "ennakkopidatys",

Somehow I don't feel very safe about this, the personnel in tax point wasn't very friendly and I had no idea how they actually see my case.

What I said was that witholding tax cannot be credited to the relevant tax authority bank account without the Y-tunnus. Pension fund contributions are paid to the private pension company, which AFAIK does not require the Y-tunnus. Employer's social security contributions go to the tax authority, but are not always payable (this is a tricky question that depends on the specific character of the relationship between you and the employer).

Please take a close look at the documents from the tax office and check that it says ennakonpidätys (witholding tax) and not ennakonkanto (tax prepayment). The latter is standardly applied to self-employed persons.

This is definitely a matter on which you should seek the advice of your trade union, as several aspects of your employment relationship could be at stake, depending again on the specific character of the relationship between you and the employer.

daryl

[tsuishant]

Thanks a lot!

For my special case I've visited Työsuojelupiiri, Eläkevakuutuskeskus, Vero to clear out the situation and each of them gave me answer of some parts. Last week I called to two Unions to ask whether I could join them, one of them wasn't sure, another one was sure but wasn't sure if I could join the Unemployment Kassa (eventually the answer was yes.)

I start to feel that even the situation seems alright now, some unpleasant surprises might come along the way.

I will join Union and consult them more on this. Anybody has experience with Erto/Toimihenkilöunioni? I am thinking to join Erto/Tietoalan toimihenkilöt but found that Erto/Toiminhenkilöunion might be quite suitable too. I work as sales in IT component manufacturing company, hope that either Union has good expertises in these matters.

[moon]

thank god i got my nationality a passport its finaly over...took long time a wasent easy
i realy do wish you all good luck
espacialy sy