The Supreme Administrative Court of Finland (Korkein hallinto-oikeus) recently decided a case, A v Immigration Service (Subsistence requirement) (KHO:2023:125) involving the EU-Turkey Association Agreement and its Additional Protocol.
At issue was a decision of the the Finnish Immigration Service (Maahanmuuttovirasto) to deny a Turkish national the right of permanent residence in Finland on the basis he did not meet the sufficient subsistence requirement, even though he was an independent tradesperson. The Service consider that his business activity was not profitable.
The applicant appealed the decision that had denied him permanent residence in Finland, eventually reaching the court of final instance in Finland, arguing that the national law being applied, the Aliens Act 1991 (378/1991), which was introduced in Finland prior to the accession of Finland to the EEA Agreement in 1994 and then EU in 1995, nonetheless was a violation of Article 41(1) of the Additional Protocol of 1970 to the EU-Turkey Association Agreement 1963, which prohibits the introduction of ‘new restrictions’ on the freedom of establishment and the freedom to provide services between the parties to the agreement.
The question before the Supreme Administrative Court of Finland, therefore, was whether the subsistence requirement of Act of 1991was a new restriction or not, notwithstanding the fact that Finland was not formally bound by the Additional Protocol of 1970 when that was agreed.
In its ruling, relying on the case-law of the Court of Justice of the European Union on the Association Agreement in question, its Additional Protocol, and decisions of the EU-Turkey Association Council, it ruled that the Act of 1991, notwithstanding the fact that it was pre-accession of Finland to the EU, was that permanent residence could be granted to persons like the applicant, provided that the person’s livelihood has been secured.
Thus, for the Supreme Administrative Court of Finland, the Act of 1991, which had to be read in light of the binding international agreements of the EU as a result of its accession to the EEA Agreement in 1994, was not a ‘new restriction’ which the Additional Protocol of 1970 prohibited. And accordingly, the standstill clause was not violated by Finland.
The judgment of the Supreme Administrative Court of Finland (Korkein hallinto-oikeus) recently decided a case, A v Immigration Service (Subsistence requirement) (KHO:2023:125), can be read here.