QUESTION ! PERMIT?

[daryl]

I have exact same case, but i have ben holding student visa B type for four years, and i previously another year of short term working visa for a year. Now i am holding second continuous permit A cos of marrige occured a year ago. If a divorce happens (its not fraud though), I still stay for the three extended years? In what circamtances they would qualify it as fraud?

Last things first: permit fraud merely means requesting a residence permit on grounds that do not exist or that no longer exist (and in the full knowledge of this). In the case of a marriage or other family connection, this would mean requesting a permit extension based on the right to family life even though the family life in question has broken down. An example of this arises if the applicant files divorce papers on Monday morning but then on Monday afternoon submits residence permit papers that give the marriage and associated family life as grounds for requesting the permit.

There was never any time limit on revoking a permit obtained by fraud.

The amendment that now seems likely to become law concerns the effects of a change of circumstances (e.g. breakdown in family life, loss of employment, death of a parent or child) occurring after the permit has been issued. Permit revocation was previously only possible in such cases when the foreigner had been living in Finland for a short period only, but this condition will probably now be removed.

In the case that you describe, the authority should examine the circumstances carefully, with particular attention to the ties to Finland that have developed over an extended period of living in Finland. I think the trap in such circumstances is to clutch at some available reason for remaining in Finland temporarily (e.g. an incomplete university studies programme) instead of insisting on a full review of the grounds for remaining in Finland continuously (i.e. permanently).

Local police stations are, in my experience, the absolutely worst place to get advice in cases of this kind. It's important to consult an expert who can ask the right questions and prepare an application strategy that will not exclude judicial review of the claim for continuous residence. Such applications give the local police a major headache, but that is not the applicant's problem. The headache arises because the immigration permit system was not designed to operate flexibly in cases where there are several reasons for granting permission to stay in Finland and the ultimate decision depends on overall discretion.

I could write a long essay on this matter, but it boils down to this: there is a fundamental mismatch between the rules that govern permission to remain (residence permit regulations) and the rules that govern the right to remain (deportation regulations). This results, time and again, in situations where the residence permit is refused but the person in question cannot be forced to leave. It seems to me that the only way out of this situation is to incorporate an explicit inverse test into the residence permit regulations, requiring that a residence permit cannot be withheld from an applicant who cannot be deported. In concrete cases this is exactly what does in fact happen, but we have yet to include a general positive rule of this kind in the Aliens Act. Instead we get bizzarre decisions to issue residence permits on grounds that are flagrantly inadequate (e.g. for the purpose of studying when little or no studying is going on), simply because the unidimensional system does not admit hybrid grounds for issuing permission to remain.

As I keep saying: this one will run and run.

daryl

[Hank W.]

An example of this arises if the applicant files divorce papers on Monday morning but then on Monday afternoon submits residence permit papers that give the marriage and associated family life as grounds for requesting the permit.

Whereas filing for residence Monday morning and divorce Monday afternoon makes the officials believe in "true love" and all that...

[JustInTime]

In the case that you describe, the authority should examine the circumstances carefully, with particular attention to the ties to Finland that have developed over an extended period of living in Finland. I think the trap in such circumstances is to clutch at some available reason for remaining in Finland temporarily (e.g. an incomplete university studies programme) instead of insisting on a full review of the grounds for remaining in Finland continuously (i.e. permanently).

Hi, Daryl,

Still some confusion:
Is this means that the persons in that situation can only request remaining in Finland temporarily if no other ground for living in Finland permanently exist any more?

JIT

[daryl]

An example of this arises if the applicant files divorce papers on Monday morning but then on Monday afternoon submits residence permit papers that give the marriage and associated family life as grounds for requesting the permit.

Whereas filing for residence Monday morning and divorce Monday afternoon makes the officials believe in "true love" and all that...

No, it doesn't, as you well know. However, it's not fraud - just Hollywood.

Glad to see you're reading this stuff.

daryl

[daryl]

In the case that you describe, the authority should examine the circumstances carefully, with particular attention to the ties to Finland that have developed over an extended period of living in Finland. I think the trap in such circumstances is to clutch at some available reason for remaining in Finland temporarily (e.g. an incomplete university studies programme) instead of insisting on a full review of the grounds for remaining in Finland continuously (i.e. permanently).

Hi, Daryl,

Still some confusion:
Is this means that the persons in that situation can only request remaining in Finland temporarily if no other ground for living in Finland permanently exist any more?

JIT

By my reckoning based on the case that you described, you've already been living continuously in Finland for five years plus one year of residence at an earlier time. This already counts as a type of connection to Finland. Unless you've been living in a box for all of those years, there are inevitably ties to Finland of some kind.

Under such circumstances I would argue at the hearing stage that the continuous permit should not be revoked, and obviously give the authority the job of justifying any alternative view on appeal. Without some compelling grounds for expulsion (e.g. a serious criminal offence) it's a very long haul from a change of circumstances to an enforceable deportation order. Your case merely requires a zealous and vigorous defence that piles up procedural obstacles in front of the authority.

daryl

[JustInTime]

By my reckoning based on the case that you described, you've already been living continuously in Finland for five years plus one year of residence at an earlier time. This already counts as a type of connection to Finland. Unless you've been living in a box for all of those years, there are inevitably ties to Finland of some kind.

Hi, Daryl,

Actually that's not correct, as I'm not the person who start this post. However, my situation is:
- 4.5 yrs of study (B student residence permit)
- 2.5 yrs of permanent work, still ongoing... (A residence permit, now in the 2nd continuous permit i.e. 3 yr A type RP)

Nothing happened to my work, and it seems that it will still ongoing well, but as being watching the posts here, like to know if in case something happened, how to deal with it.

Also like to know how far am I away from the EC-Long term residence permit?

JIT

[daryl]

By my reckoning based on the case that you described, you've already been living continuously in Finland for five years plus one year of residence at an earlier time. This already counts as a type of connection to Finland. Unless you've been living in a box for all of those years, there are inevitably ties to Finland of some kind.

... my situation is:
- 4.5 yrs of study (B student residence permit)
- 2.5 yrs of permanent work, still ongoing... (A residence permit, now in the 2nd continuous permit i.e. 3 yr A type RP)
...
Also like to know how far am I away from the EC-Long term residence permit?

JIT

Article 4 of the Directive reads as follows:

1. Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application.

2. Periods of residence for the reasons referred to in Article 3(2)(e) and (f) shall not be taken into account for the purposes of calculating the period referred to in paragraph 1.

Regarding the cases covered in Article 3(2)(a), where the third-country national concerned has acquired a title of residence which will enable him/her to be granted long-term resident status, only half of the periods of residence for study purposes or vocational training may be taken into account in the calculation of the period referred to in paragraph 1.

My understanding of this is that the basic qualifying period is five years of legal and continuous residence, excluding residence for certain purposes listed in Article 3(2)(e) and (f) (i.e. au-pair and seasonal worker, posted employee, diplomat), and including no more than half of any period of residence for study purposes (provided that studies are no longer the reason for residence).

By my reckoning, you will be eligible for EC long-term resident status after 2 years and 9 months of residence with a worker's residence permit. In other words, very soon.

Please be aware, however, that the foregoing interpretation will probably not be adopted in Finland's implementation provisions. This means that you will have to invoke the Luxembourg process to get your rights. You can expect the following scenario:

• 1. A lot of scheisse from the local police station about how you "can't apply",
  
  2. A refusal from the local police station, hopefully as quickly as possible, but certainly within no longer than six months,
  
  3. An appeal to the regional administrative court, with a petition calling on the court to refer to the European Court of Justice (the Luxembourg process), and (possibly)
  
  4. An appeal to the Supreme Administrative Court with a petition calling on the court to refer to the European Court of Justice if this has not already been done.

I am keen to see this process launched as quickly as possible after the Finnish implementation provisions take effect, which should be this month. Yours may be one of the first cases to go forward with a challenge to those provisions.

daryl

[network_engineer]

Dear Daryl, all,

Daryl wrote:

This decision is open to appeal to an administrative court, and has no specific impact on the legality of residence. A separate deportation process is then necessary to end legal residence and enable expulsion.

also,

...there is a fundamental mismatch between the rules that govern permission to remain (residence permit regulations) and the rules that govern the right to remain (deportation regulations). This results, time and again, in situations where the residence permit is refused but the person in question cannot be forced to leave.

Now, section 149 says thus:

Section 149 – Grounds for deportation
(1) An alien who has resided in Finland under a residence permit may be deported if:
1) he or she resides in Finland without the required residence permit;

Could you explain how the cancellation of a residence permit would not affect the legality of residence? I.e. just seeking to understand the principle here. Another related question at the same time - would not the authorities be able to expel somebody based on the above section, i.e. residence without the required residence permit?

Kind regards.

[daryl]

Now, section 149 {of the Aliens Act} says thus:

Section 149 – Grounds for deportation
(1) An alien who has resided in Finland under a residence permit may be deported if:
1) he or she resides in Finland without the required residence permit;

Could you explain how the cancellation of a residence permit would not affect the legality of residence? I.e. just seeking to understand the principle here. Another related question at the same time - would not the authorities be able to expel somebody based on the above section, i.e. residence without the required residence permit?

Kind regards.

Take a look at the last paragraph of section 40 of the Aliens Act. Also take a look at the latest report of the Parliamentary Committee for Administration, which discusses this very point.

I think an interesting situation may arise when a residence permit is revoked but the expulsion process fails on appeal for some fundamental reason, depending on how bloody-minded the victim chooses to be at this point.

My primary instinct in such circumstances is to submit an extraordinary appeal to the Supreme Administrative Court against the decision of that very court declining to quash the decision to revoke the original residence permit, and citing the decision to quash the expulsion order as the sole grounds for that appeal. This effectively puts the argument that a person who cannot be deported must always be given permission to remain. It is simply gibberish to hold that such a person has permission to remain without a residence permit, as the expression "residence permit" simply means "permission to remain".

Then simply sit back and watch as the court wrestles with its own contradictory judgements. In the meantime, the victim's residence remains entirely legal throughout. Any further problems of rights (citizenship applications, right to travel and return, right to social benefits, right to EC long-term resident status etc. etc.) can be forced into the same meat grinder.

Unfortunately, very few victims have the sheer balls to do this, but a case of this kind is really necessary to illustrate that we have two (or now maybe even three), fundamentally disharmonious systems that draw on the same body of facts.

Daryl

[Hank W.]

Unfortunately, very few victims have the sheer balls

Victims don't have the balls, but the people appealing against deportation do

[daryl]

Unfortunately, very few victims have the sheer balls

Victims don't have the balls, but the people appealing against deportation do

That case is not really relevant to the present discussion, as there is no obvious question of revoking a residence permit on grounds of a change in circumstances. Even if security considerations arise that might influence the decision to extend a fixed period residence permit or to issue a permanent residence permit, such considerations would not mean that the specific grounds for issuing the current permit (e.g. a job, family ties etc.) had ceased to exist.

Instead in a case of this kind deportation proceedings begin while the residence permit continues (at least until the end of any fixed period), and if the deportation order becomes enforceable, then the residence permit expires automatically.

One interesting aspect of the case that you referenced is that UVI's deportation order was obviously based on the conviction from 2005, and not on the latest conviction (which is probably not yet even legally final). I would be interested in knowing a bit more about the circumstances of this person after he was paroled, and particularly whether he had the right to work. Job placement has to be an important aspect of any rehabilitation measures for parolees, and I would suggest that any bureaucratic obstacles to this increase the risk of recidivism. This is also a question that I would ask on behalf of the latest victims. Prisoner discharge on probation presupposes effective supervisory measures, which obviously failed in this case.

daryl

[Hank W.]

Now of course on a level of principle it escapes my logic why would a parolee have somehow more of a "right to work" than decent people who are not criminals, as we all know theres 28 000 immigrants who cannot *find* work who should be "rehabilitated" into the society *first*. But that of course is the most important thing in the flower-hatted- aunties' minds that the poor criminals have all the rights.

Though this case, - this is the case of the "limping man" AFAIK , so apparently the bloke had some sort of disability to start with.

Prisoner discharge on probation presupposes effective supervisory measures

yeah, in Finland, yeah...

the latest conviction (which is probably not yet even legally final).

A pity it won't end up into the Eastern Finland appeals court, they would probably hand down a verdict of innosence as the guy had a short member or something like they usually come up with...

[daryl]

Now of course on a level of principle it escapes my logic why would a parolee have somehow more of a "right to work" than decent people who are not criminals, as we all know theres 28 000 immigrants who cannot *find* work who should be "rehabilitated" into the society *first*. But that of course is the most important thing in the flower-hatted- aunties' minds that the poor criminals have all the rights.

I don't think my observation was in any way obtuse. A foreign parolee who is prevented from working due to the lack of a work permit, which in turn is due to uncertainty over the success of a deportation effort, should not be released into the community in the same way as somebody who can take a job. That should be obvious, even as a matter of principle.

daryl

[Hank W.]

Well yes, but the flower-hatted-aunties would then have a spiritual orgasm in EU Court of Human Rights over the treatment of the poor downtrodden person.

And I don't see the difference though, as who would be giving him a job? Like in reality? So he's going to be sitting and counting the trees any way be there work permit or not. See theres this "need of workers" in Finland and "we need immigrants" in Finland and nobody coming here gets a bloody job because they don't speak Finnish.

[nothingelse]

Hi Daryl, given I was divorced after I got the second A resident permit, and I had no job right now, is it possible for me to get a permanent resident permit if I register a company here and self-employed?