ECLI:FI:KHO:2024:15

Immigration affairs – Residence permit – Student – Researcher – University degree – Doctorate
– Postgraduate studies – Right to study – Interpretative effect of the Directive

Taking into account Article 3(3) and Article 11(1)(a) of the Researchers and Students Directive, the appellant, who before his arrival in Finland had completed a Master's degree in his home country and who had a right to study at a Finnish university for a doctoral degree, could not be refused a student's residence permit on the grounds that he would not be considered a student under section 4, subsection 3 and section 7, subsection 1 of the Act on the Conditions of Entry and Residence of Third-Country Nationals on the Basis of Research, Studies, Training and Voluntary Service.

Act on the Conditions of Entry and Residence of Third-Country Nationals on the Basis of Research, Studies, Training and Voluntary Service (719/2018), section 4, subsection 3 and section 7, subsection 1

Directive (EU) 2016/801 of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing, Article 3(3) and Article 11(1)(a)

Judgment of the Court of Justice of the European Communities C-14/83, Von Colson and Kamann (ECLI:EU:C:1984:153)

Judgment of the Court of Justice of the European Communities C 491/13, Mohamed Ali Ben Alaya (ECLI:EU:C:2014:2187)

Decision concerned

Administrative Court of Eastern Finland 22/11/2022 no. 2621/2022

Ruling of the Supreme Administrative Court

The Supreme Administrative Court has granted a leave for appeal and the case shall be reviewed.

The decisions of the Administrative Court and the Finnish Immigration Service are annulled and the case is referred back to the Finnish Immigration Service for reconsideration.

Background to the matter

(1) The Finnish Immigration Service has on 22 February 2022 rejected the appellant's application for an extension of his residence permit on the grounds of studies and decided to deport him to his home country, Turkey. The Finnish Immigration Service has not considered him to be a student within the meaning of the Act on the Conditions of Entry and Residence of Third-Country Nationals on the Basis of Research, Studies, Training and Voluntary Service (719/2018).

(2) The Administrative Court has rejected the appellant's appeal. The Administrative Court has referred to the definition of a student in the Government's proposal for the aforementioned Act (HE 21/2018 vp). In this respect, and taking into account the higher education degree completed by the appellant in his home country and his right to study for a doctorate in Finland, there are no conditions for granting him a student residence permit under section 7, subsection, paragraph 1 of the Act.

The case was decided by Members of the Administrative Court Mari Tarro-Achamyelehe, Henna Paterno, and Maarit Tiihonen, who also presented the case.

Claims and evidence presented to the Supreme Administrative Court

(3) The appellant has in his appeal requested that the decisions of the Administrative Court and the Finnish Immigration Service be annulled. He has also requested that the enforcement of the expulsion decision be prohibited. The claims are based on the following grounds:

(4) The applicant has been living in Finland for more than ten years with a residence permit for researchers and students. He has a Master's degree in his home country and is pursuing a PhD in Finland. As the appellant has not received a renewal of his researcher contract after 2020, he has not been able to apply for a renewal as a researcher. The appellant must be considered a student within the meaning of section 4, subsection 1, paragraph 3 of the Act on the Conditions of Entry and Residence of Third-Country Nationals on the Basis of Research, Studies, Training and Voluntary Service, because he has been admitted to higher education and his right to study is still valid.

(5) The Finnish Immigration Service has issued a statement. The Supreme Administrative Court had requested that the Finnish Immigration Service particularly assess the relevance of the definition of student in Article 3(3) of Directive (EU) 2016/801 of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (hereinafter the Researcher and Student Directive) in relation to the conditions for granting the residence permit of the student applied for by the appellant.

(6) In its opinion, the Finnish Immigration Service has stated the following:

(7) The Finnish Immigration Service's decision is based on the Act on the Conditions of Entry and Residence of Third-Country Nationals on the Basis of Research, Studies, Training and Voluntary Service (719/2018) and its explanatory memorandum. The interpretation adopted by the national legislator is clearly expressed in the explanatory memorandum to the Act and, with the amendment (277/2022) which entered into force on 15 April 2022, also in the wording of the Act. The Researchers and Students Directive does not provide such clear rights for individuals that would have merited departure from the intention of the national legislator.

(8) The appellant has a Master's degree and at the time of the decision of the Finnish Immigration Service he had the right to study for a doctoral degree in Finland. He could not be considered to be a higher education student within the meaning of national law.

(9) The appellant was given the opportunity to submit a response.

(10) It shall be noted that the Supreme Administrative Court, by its interim decision of 11 July 2023 under case number 2179/2023, has prohibited the enforcement of the removal of the appellant until the Supreme Administrative Court has ruled on the appeal or until otherwise is ordered.

Grounds for the ruling of the Supreme Administrative Court

Questions before the Court

(11) The issue in the case is whether the Finnish Immigration Service could consider that the appellant is not a student within the meaning of section 4, subsection 3 of the Act on the Conditions of Entry and Residence of Third-Country Nationals on the Basis of Research, Studies, Training and Voluntary Service (719/2018), to whom a student residence permit may be granted under Article 7 of the same Act.

Applicable legal provisions

(12) The Finnish Immigration Service's decision was made on 22 February 2022, at a time when the Act 719/2018 was applicable.

(13) Pursuant to section 4, subsection 3 of the Act, student means a third-country national who has been accepted by a higher education institution and is admitted to the territory of a Member State to pursue as a main activity a full-time course of study leading to a higher education qualification.

(14) Pursuant to section 7, subsection 1, paragraph 1 of the same Act, a residence permit for studies requires, among other things, that the applicant has been accepted as a student at a higher education institution in Finland.

(15) The Government's proposal for the Act (HE 21/2018 vp) states in its general explanatory memorandum that a researcher's residence permit would be granted uniformly for post-master's studies, regardless of the legal relationship and funding. With the amendment to the Act (277/2022), which entered into force on 15 April 2022, the wording of section 7, subsection 1 of the Act has, according to its preamble (SiVL 4/2022 vp), been clarified without changing the previous legal situation so that the applicant must be accepted as a student in an education leading to a lower or higher university degree.

(16) Pursuant to section 1 of the Act, the Act implements the Researcher and Student Directive (EU) 2016/801. Article 3(3) defines what is meant by "student" in the Directive. Article 7 concerns the general conditions of admission and Article 11 the specific conditions for students (for Articles 3 and 11, see paragraphs 18 and 19 below).

Legal evaluation and conclusions

(17) Before coming to Finland, the appellant has completed a Master's degree in his home country. During his stay in Finland, he has pursued postgraduate studies towards a doctorate degree at a Finnish higher education institution and has applied for a student residence permit in a situation where the right to study granted to him by the higher education institution has been valid, but his researcher contract has not been renewed.

(18) Pursuant to Article 3(3) of the Researchers and Students Directive, ‘student’ means a third-country national who has been accepted by a higher education institution and is admitted to the territory of a Member State to pursue as a main activity a full-time course of study leading to a higher education qualification recognised by that Member State, including diplomas, certificates or doctoral degrees in a higher education institution.

(19) Pursuant to Article 11(1)(a) of the Directive, the applicant shall provide evidence that the third-country national has been accepted by a higher education institution to follow a course of study.

(20) It follows from the interpretative effect of a directive in Union law that, when applying national legislation, and in particular the provisions of a national law expressly adopted to implement a directive, national legislation must be interpreted in accordance with the wording and purpose of the directive in order to achieve the result intended by the directive (e.g. C-14/83, Von Colson and Kamann, paragraph 26).

(21) In Case C 491/13, Mohamed Ali Ben Alaya, the Court of Justice held, with regard to Directive 2004/114, which pre-dates the Researchers and Students Directive, that a Member State must admit to its territory a third-country national who wishes to reside there for more than three months for the purpose of studies, if that national satisfies the conditions for admission laid down exhaustively in Articles 6 and 7 of that directive and if the Member State concerned does not invoke any of the grounds for refusing him a residence permit expressly listed in that directive (paragraph 36 of the judgment).

(22) The Supreme Administrative Court holds that, in the light of the abovementioned judgment of the Court of Justice, it follows not only from Article 11 of the Researcher and Student Directive and other provisions on the admission of third-country nationals, but also from Article 3 (3) of the Directive, that section 4, subsection 3 and section 7, subsection 1 of the Act cannot be interpreted and applied in a manner contrary to the relevant provisions of the Directive by excluding studies leading to a doctorate. This assessment is not affected by the fact that the amendment to section 7 of the Act (277/2022) explicitly sought to establish a legal situation contrary to the Directive, whereby postgraduate students could only be granted a residence permit as a researcher but not as a student.

(23) If sections 4, subsection 3 and section 7, subsection 1 of the Act are interpreted in accordance with Articles 3(3) and 11(1)(a) of the Researchers and Students Directive, a third-country national who has been admitted to a higher education institution and has been granted the right of access to the territory of a Member State in order to follow a full-time course of study leading to a doctorate must also be regarded as a student within the meaning of that Act.

(24) It follows from the above that the appellant's application for a student residence permit could not be rejected on the grounds that he should not be considered a student within the meaning of the Act.

(25) Therefore, and taking into account the claims made before the Supreme Administrative Court and the evidence in the case, the decisions of the Administrative Court and the Finnish Immigration Service must be annulled and the case referred back to the Finnish Immigration Service for reconsideration.

The decision in the matter was made by Supreme Court justices Anne E. Niemi, Janne Aer, Petri Helander, Joni Heliskoski and Juha Lavapuro. The Referendary was Kristina Björkvall.