Help--Victim of Directorate of Immigration Incompetence.

[upariya]

Congratulations!!!!!

[daryl]

Hooray! Finally...
Visa approved - after many stuff ups and 'um... we don't know' moments - its approved and ready for my passport.
Its the 'Native English teacher' part which got the visa.. however, if my employer hadn't kicked up a stink.... It would still be in limbo.
Quite depressing... I mean, if I hadn't had my employer to bat for me - what would have happened? It seems to be a very unjust (or misinformed?) system.

It's not a visa, it's a residence permit, and it was obviously issued locally. Specifically, it's a worker's residence permit issued pursuant to chapter 5 of the Aliens Act. It should be of continuous type (jatkuva - A) and not temporary (tilapäinen - B), and it should be valid for 12 months. It should specify the kind of work that you do, but not the employer. You have 30 days to appeal if these minimum conditions have not been met, counted from the day when you receive the decision and appeal instructions.

While your work continues (for any employer), you will be eligible to extend the permit for a further three years. After four years you are eligible for a permanent residence permit. After five years you will become eligible for a residence permit for a long-term resident third-country national. This gives you access to the labour market in most of the European Union (EU25 minus UK, Eire and Denmark).

Your employer will probably lay you off at the end of May and possibly also at the end of December. You are eligible for unemployment benefit at these times. Ask your employer for a lay off notice and a certificate of earnings to show the employment office. You would be well advised to join an unemployment fund, such as the fund attached to your union.

PAM-Lingua is your union

http://www.pam-lingua.tk

[Hank W.]

Hooray! Finally.

What you mean "finally", that was fast a s a lightning...

It seems to be a very unjust (or misinformed?) system.

Try immigrating to Australia

[Pilvii]

Try immigrating to Australia

Ha! I just got out of the place... Don't wish it on me!!
Anyhow, that will happen with my bf when we move back... I can't imagine its much easier. However, I was given information by the Australian embassy in Berlin for what steps he must take.... I will know not to believe anything... even if its information from the people meant to be 'in the know'.

When I said finally - its better than the police telling me that it would take 6 months to process and then the outcome would be negative. I wonder if they might be better off saying nothing until something has actually been processed

[Pilvii]

It's not a visa, it's a residence permit, and it was obviously issued locally

That may be, but the police referred to it as a 'visa' during the phonecall. And in my passport, it is the Visa which will be replaced. It was issued locally only once the Employment Office became involved. And, like I said, the UVI and local police were duking it out.....

Your employer will probably lay you off at the end of May and possibly also at the end of December.

No.. I will be lucky for the May period - I am teaching short-courses over the summer holidays. December... might be back in Australia by then - who knows.

Thanks for your help Daryl, will get onto that union as soon as possible. I know how good its been to be part of my local union at home

Btw... whats the työttömyysvakuutusmaksu I am currently paying? 'Unemployment insurance'? What does that mean exactly?

[Hank W.]

Walk down the street and see a yob with a bottle . Thats what you're paying for. Thats obligatory non-negotiable earmarked sum going to the dole monies.

[Pilvii]

Yay. So... I must remember to kick my unemployed friends in the head next time I see them Thanks for the heads-up

[daryl]

It's not a visa, it's a residence permit, and it was obviously issued locally

That may be, but the police referred to it as a 'visa' during the phonecall. And in my passport, it is the Visa which will be replaced. It was issued locally only once the Employment Office became involved. And, like I said, the UVI and local police were duking it out.....

The law refers to the permit that you had and the permit that you are about to get as "residence permits". There is absolutely no question as to the terminology used. The local employment office is involved because a worker's residence permit is (at least in theory) based on an assessment of the regional labour requirement. The local employment office issues an administrative decision on the labour-related aspects of the permit. That decision is open to judicial review.

The dispute between the local police and the Directorate of Immigration illustrates only that the former had not read the law. In fact, the police were relying on administrative regulations issued under the previous Aliens Act. These regulations expired when that Act was repealed in 2004.

Your employer will probably lay you off at the end of May and possibly also at the end of December.

No.. I will be lucky for the May period - I am teaching short-courses over the summer holidays. December... might be back in Australia by then - who knows.

Thanks for your help Daryl, will get onto that union as soon as possible. I know how good its been to be part of my local union at home

A lay off is a temporary suspension of regular work and wages due to market behaviour or other factors that are beyond the employer's control. Employment continues through a lay off until work is resumed. The summer courses to which you refer will depend on course enrolments, which can often be highly unpredictable. If the enrolment rates are too low, then the employer will not be eligible for the adult education subsidies that finance these courses. In my experience, it is highly unusual (and not cost-effective) for employers to budget for this risk so that they can continue to pay their employees despite a fall in revenues. Periodic layoffs are a significant feature of language training in the private and semi-public sector.

The fact that a shortfall of work is likely at certain times of year does not give the employer the right to hire staff on a temporary basis. The tendency of employers to assume this right is one of the matters that keeps the union on its toes.

Btw... whats the työttömyysvakuutusmaksu I am currently paying? 'Unemployment insurance'? What does that mean exactly?

This is part of the financing system for unemployment benefits. The fact of paying the contribution does not by itself make you eligible for these benefits. For a detailed description of the Finnish social security system download this book:

http://www.tela.fi/tela/telaweb.nsf/kuv ... penElement

For more general advice about working in Finland the following booklet is probably still the best source:

http://www.mol.fi/mol/fi/99_pdf/fi/04_m ... ma_eng.pdf

daryl

[gistroud]

Congratulations!

[áberstan]

UVI got terribly hot and bothered about these cases trying to bully people into leaving, but in the end all you had to do was stand your ground. It was simply not possible for UVI to approve an application filed abroad and then turn down the one subsequently filed on exactly the same grounds in Finland, nor were they willing to face the situation that would arise if they refused to notify the applicant in Finland of a decision taken in Finland otherwise than through some local office of another ministry on the other side of the planet. Normally it was their policy to approve the second application and declare that the first had lapsed. It was also their policy to keep VERY quiet about this loophole.

Well I had an Egyptian friend married to a Finn who did this back in 2002 and his 2nd application was approved finally and was told that he had to go to fetch his visa at the Finnish embassy in Cairo and that they were droping the visa in the mail that day. When he expained that he could pick it up personally in Helsinki, the clerk laughed and said we are not going to make it this easy for you. He tried to expain that he didn't ahve the money to buy a return ticket to Egypt on such short notice and the response was "Thats your problem!"

Now, based on the fact that I was married to a Finn, I had the legal right to move to Finland. I didn't quite get the point of making our lives that much harder by seperating us for at least 6 months, for no good reason.

For the record, you did not have the "legal right" to move to Finland.

The Aliens Act 301/2004 is the Finnish legislation that provides the legal basis for granting residence permits.

A person who wishes to come to Finland and live in the same household with a family member residing here must have a residence permit. The permit can be granted on the basis of family ties.

The circle of family members is defined in the law and may not correspond to those whom people generally think of as family members. The Finnish idea of family is more restricted than in many other countries.

So, correct me if I'm wrong...If Finnish legislation sets the criteria for a family member of a Finnish national and their elgibility for a residence permit and I meet the established criteria, doesn't that entitle me to a "legal right" to a residence permit.

[Hank W.]

Tecnically no, as it says "can", not "will". This means getting married is not an automagical residence permit.

[daryl]

UVI got terribly hot and bothered about these cases trying to bully people into leaving, but in the end all you had to do was stand your ground. It was simply not possible for UVI to approve an application filed abroad and then turn down the one subsequently filed on exactly the same grounds in Finland, nor were they willing to face the situation that would arise if they refused to notify the applicant in Finland of a decision taken in Finland otherwise than through some local office of another ministry on the other side of the planet. Normally it was their policy to approve the second application and declare that the first had lapsed. It was also their policy to keep VERY quiet about this loophole.

Well I had an Egyptian friend married to a Finn who did this back in 2002 and his 2nd application was approved finally and was told that he had to go to fetch his visa at the Finnish embassy in Cairo and that they were droping the visa in the mail that day. When he expained that he could pick it up personally in Helsinki, the clerk laughed and said we are not going to make it this easy for you. He tried to expain that he didn't ahve the money to buy a return ticket to Egypt on such short notice and the response was "Thats your problem!"

From the way you describe the situation, it sounds like an application was first filed in Finland and then another was filed abroad. The first was refused and the second was approved only after the applicant had again travelled to Finland, and there was no application in Finland pending at the time of approving the second application. This is not quite the situation that I described in my earlier posting, though it does have certain similarities.

Just in passing, UVI did not "drop the visa in the mail" in 2002. Under the 1991 Aliens Act both residence permits and visas (properly so called) were issued by Finnish consular and diplomatic missions abroad. These missions lost the right to issue residence permits when the new Aliens Act took effect in 2004.

Assuming that another application was pending in Finland when the overseas application was approved, I would approach your friend's case by invoking the freedom of information laws. The notification sent to Cairo became a public document at the time when it was sent. As the concerned party, your friend was entitled to receive a copy of that notification from the Directorate of Immigration on request. The notification was nothing more than a recommendation of the Directorate to issue the requested permit. This recommendation (which was meant to be the outcome of a process of deliberation) could not be expediently withdrawn once sent, so the Directorate was then left in an invidious position if it failed to approve the other application that remained pending in Finland. Furthermore, there was no acceptable excuse for failing to process this application immediately, as all of the necessary information was available and the file was open on the official's desk.

The legal standard here is Article 8 of the European Convention on Human Rights, and the key issue is lawful and necessary interference:

ARTICLE 8

1. Everyone has the right to respect for his ... family life ....
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The standard defence of Member States in immigration cases arising under Article 8 is that the Article does not confer the right to live in any particular country. However, in your friend's case an expert authority had already concluded that there were no objections of national security, public safety etc. to immigration. Article 8 clearly does not allow interference in family life solely for the purpose of mere administrative formalities (i.e. issuing a permit at one office rather than another).

I had this standoff with UVI at least three times and in every case UVI backed away from the argument by approving the second application. There is simply no way to frame a legal argument that justifies even minor intereference in family life (e.g. a round trip to Cairo) under these circumstances. I was actually rather keen to get such a case into the court, but UVI never gave me the chance.

Under the new law the situation is even more clear, as UVI issues the decision itself. The applicant can use the publicity laws to force UVI to notify the applicant of that decision. Furthermore, a formal deportation procedure becomes necessary as soon as the decision has been issued, so even its withdrawal is far from simple. This logic forms part of the background to the new arrangements, whereby Finnish consular and diplomatic missions abroad lost the authority to issue residence permits.

Now, based on the fact that I was married to a Finn, I had the legal right to move to Finland. I didn't quite get the point of making our lives that much harder by seperating us for at least 6 months, for no good reason.

For the record, you did not have the "legal right" to move to Finland.

The Aliens Act 301/2004 is the Finnish legislation that provides the legal basis for granting residence permits.

A person who wishes to come to Finland and live in the same household with a family member residing here must have a residence permit. The permit can be granted on the basis of family ties.

The circle of family members is defined in the law and may not correspond to those whom people generally think of as family members. The Finnish idea of family is more restricted than in many other countries.

So, correct me if I'm wrong...If Finnish legislation sets the criteria for a family member of a Finnish national and their elgibility for a residence permit and I meet the established criteria, doesn't that entitle me to a "legal right" to a residence permit.

The short answer is obvious from the sections that I have emphasised in boldface.

The longer answer goes to the very core of immigration policy and the distinction between citizens and aliens:

Perhaps it would help to draw a distinction here between "absolute" and "conditional" or "derived" rights. Obviously it is axiomatic in a constitutional State that a subject is entitled to everything for which he qualifies. By this token I am entitled to drive a combination vehicle on a public highway. All I have to do is take the necessary courses and pass the necessary driving and aptitude tests. In other words, my entitlement to drive a combination vehicle is subject to various conditions. These conditions are ultimately set by Parliament.

By contrast, I am entitled to life. I do not have to satisfy any conditions in order to enjoy this entitlement. It is enough to be human and alive. The right to life is "absolute"; it does not depend on satisfying any further conditions and it is not derived from any other rights or administrative arrangements.

What you describe as your "legal right" to a residence permit (in other words, permission to live in Finland) is a conditional matter. It is only absolute in the case of a Finnish citizen (and even this is arguable). The question of whether you satisfy the applicable conditions is up to various public authorities to settle (UVI and the administrative courts). The very fact that you have to request permission already indicates that you do not enjoy that freedom as of right. The fact that permission cannot be arbitrarily refused (in a constitutional State) does not amount to a right to permission. Furthermore, the State is free to withdraw the permission, for example by Act of Parliament.

The freedom to impose conditions on the residence of aliens is normally viewed as an expression of national sovereignty. That sovereignty is not diminished by exercising this freedom. The entire question of immigration policy arises from the interaction between national sovereignty and the rule of law. Permission to live in a dictatorship or absolute monarchy depends on the unfettered discretion of the ruler, which may change from moment to moment. By contrast, the rule of law essentially requires the ruler to apply standards of impartiality: corresponding cases must be treated alike. It is up to the legislator to set the standards. The executive then applies the standards and the judiciary verifies that the standards have been correctly applied.

daryl

[daryl]

Tecnically no, as it says "can", not "will". This means getting married is not an automagical residence permit.

Even if it said "will" (myönnetään/on myönnettävä), this would not alter the fundamental point that permission is still required. Things get a bit more complicated when the formulation is "ei tarvitse oleskelulupaa" etc., as in the case of citizens of other Nordic countries. We then have to look at the conditions under which such aliens can be expelled from Finland.

daryl

[Alejandro_Lorenzo]

You have to "go by the rules" if you try to have some initiative or imagination everybody gets angry and totally confused. Applies to anything, student handouts, KELA whatever. Finnish bureaucracy at its best.

So true.

I my case (I don't bother to write the story now) I've been replying for 1.5 year to Kela sinnce I don't agree with their sentece (karenssi) of 580€ they say I have to pay back to them.

The most stupid of this is how, at the end, it costs more to the state to follow their own system (I keep on replying) than those 580€ I'll never pay.

Anyhow, my "success" in my case would never be possible without being lucky and having someone to tell me what to do.
So much people is undefendant against the system that even if they (kela, police...) are wrong people may fail often.

[sammy]

Finnish bureaucracy at its best.

Well, you know what they say about government officials being a bit like flags...

...they hang about, clinging to their posts - but when they get the wind up, they flap like mad.