Frustrated rights at the end of childhood: - A study of the nexus between prolonged procedures and effective access to family reunification for unaccompanied minors in Finland

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http://urn.fi/URN:NBN:fi:hulib-201903221499
Title: Frustrated rights at the end of childhood: - A study of the nexus between prolonged procedures and effective access to family reunification for unaccompanied minors in Finland
Author: Vartio, Elias
Contributor: University of Helsinki, Faculty of Law
Thesis level: master's thesis
Abstract: What happens to the rights of a child, that are dependent on his or her status as an under-age person? Does the international protection based on the best interest of a child simply cease once the child turns 18? Or is the issue more complex? In this thesis I attempt to answer these questions based on EU legislation, domestic legislation, as well as rights protected in the ECHR and CRC. The purpose of the study is 1) to explore the scope of the material protection of family life for minors approaching or passing the transition to the age of legal adulthood, and 2) to determine to what extent there exist effective procedural guarantees for making these rights effective and real. On a theoretical level, this study will focus on the nexus between procedural rules, institutional solutions and the realization of material rights in the context of family reunifications between children and parents. While the actual theme is frustration of rights and analysis of technical mechanisms of exclusion, the issues will be grounded in practical challenges and selected policy choices by the Finnish law makers and migration authorities. While the right to family reunification can be restricted both materially and technically, I will focus in this thesis focus more on the purely “technical” procedural rules. The specific rules I refer to are the migration system’s requirements on how the application for a residential permit based on family ties should be initiated. Especially the procedural rules relating to time and space and the impact of these rules on to access to rights. In the thesis I first explore and question to what extent the protection of family life is a well-established norm in public international law. The reason for the questioning is the highly restrained right to family reunification and the surprisingly limited impact of the best interest of the child enshrined in the CRC. In the fourth chapter I analyse the relationship between the family reunifications directive, the qualification directive, as well as the implications of migration being a shared competence. Currently the ECJ has only made an intervention for the benefit of a stronger and more foreseeable access to family reunification for refugees and those who have been granted asylum proper. However, I also conclude that there would be certain grounds for the ECJ to justify an intervention using the implied powers doctrine in order to extend the improved protection of refugees also for those receiving subsidiary protection. In chapter five I review the current Finnish legal set-up as well as recent developments. Here I find that Finland does not appear to actively disseminate information on the enhanced access to refugees and has not yet extended the enhanced protection to those that are benefiting from only subsidiary protection. Likewise, I demonstrate that there are numerous obstacles prolonging or hindering the procedures, likely leading to a loss of rights. In chapter six I analyse the Finnish institutional framework and practises from a non-discrimination perspective. One of the findings is that the institutional set-up of the consular services network seems to be biased against citizens from war-torn regions. Also, based on statistical analysis, there is a clear pattern suggesting a tendency to grant only subsidiary protection as opposed to asylum proper for unaccompanied minors. This was true when comparing both general decisions as well as decisions for minors arriving with their families. Somewhat ironically, one could thus argue that the system has a built-in bias towards the vulnerable persons it ought to protect, effectively denying or frustrating their right to family life. While a relatively fair balancing has been made in the former case related to access to embassies, there appears to be very few proper and sufficient justifications to deny minors arbitrary access to family reunification due to prolonged procedures. In the conclusion I find that while he recent decisions by the ECJ are welcome steps towards more effective access to family reunifications, many flaws in the system still remain from an access to rights- and non-discrimination perspective. Lastly, I propose that the protection against discrimination in international law, if taken seriously, can be used for the benefit of dynamically levelling rights to acceptable standards, even when the rights have originally been reserved only for a limited group.
URI: URN:NBN:fi:hulib-201903221499
http://hdl.handle.net/10138/300338
Date: 2019
Discipline: Kansainvälinen oikeus
International law
Folkrätt


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