Abstract For people on the move, family reunification has become a major ‘channel’ to Europe, and the ‘right to family’ is a widely recognized principle in international human rights protection and domestic legislations. Yet in practice exercising this ‘right’ is often difficult and migration buraucracies leave applicants unsure not only of the outcome of their applications but of the criteria that are relied on in the decisions. In this article we analyze this dynamic via the case study of Finland and a close analysis of 253 appeals on family reunification applications at the Administrative Court of Helsinki between 2003 and 2014. Our sample includes all decisions that mention ‘DNA,’ which has become a routinely utilized biotechnological tool in family reunification applications internationally. Our analysis focuses particularly on the 51 cases in which DNA testing has confirmed the existence of biological family ties but the applications have, nevertheless, been rejected. This article is contextualized in scholarship analyzing the recent spread of biotechnological tools and biometrics in immigration management. Simultaneously we discuss the quest for ‘information,’ ‘certainty’ and ‘truth’ that characterize family reunification applications. Relying on the recently flourished ethnography of documents, this article is ultimately about the indeterminacy and intrinsic superficiality of ‘the law.’ 1. Introduction The applicants’ stories entailed important inconsistencies. According to the plaintiff’s wife water was fetched from a river at a half-an-hours walking distance; according to the plaintiff’s stepmother … from a stream ‘a little further away’, and everyone took turns; according to the applicant’s step-brother … from a well that was within a 6–7 minute walk, and it was the donkeys who carried the water; according to the niece’s child, water came from a well that was in the house next door and this was done by the parents. (Case 1; case number on file with authors to ensure applicant anonymity. Original text in Finnish, translation by the authors.) This is a direct quote from a family reunification appeal processed—and rejected—by the Administrative Court of Helsinki, one of seven regional courts of appeal in Finland that review bureaucratic decisions made at municipal and state levels, including those regarding immigration. Although particular in its details, this appeal exemplifies a crucial characteristic of immigration cases, namely the use of personal narratives to complement such evidence as DNA analysis in the absence of identification documents approved by the Finnish officials. In the proceedings these details acquire thus legal relevance, or more precisely, they sometimes do whereas at other times their significance is dismissed. This article tells the story of how and why this occurs - or more accurately, it tells why it is impossible to know or explain whether such narrative details, or DNA evidence, or something else, will become significant in these proceedings. The appeals processed at the Administrative Court are often the last domestic legal remedy available for applicants seeking entry to Finland: whereas the applicants in principle have the right to lodge an appeal at the Finnish Supreme Administrative Court and at the European Court of Human Rights, in practice permits are very difficult to obtain (see Knuutila and Heiskanen 2014; Pakolaisneuvonta 2015). Thus a lot rides on personal narratives, beginning with whether they are accepted as capable of offering certainty—information (Hetherington 2011; Halme-Tuomisaari 2013) —or whether they are seen as fabrication. Narratives are utilized in Finnish family reunification proceedings in cases where applicants lack the kind of documentation accepted by Finnish immigration procedures. However, their evidentiary weight may also be challenged by data of entirely different kind, namely biotechnological evidence on biological relatedness acquired via DNA testing. Parental DNA testing is today utilized in family reunification cases in Finland in echo with broader international trends of relying on biotechnological tools and biometrics in immigration management (see Fassin and d’Haluin 2005; Aas 2006; Feldman 2011). Since the 1990s, DNA testing has become an established procedure in family reunification cases in at least 25 countries of the Global North, including 21 European countries (European Migration Network 2016, 2017). The importance of DNA testing, in turn, rests on its acknowledged precision and objectivity, which commonly translates it into an indispensable tool in a quest for ‘truth’ by immigration authorities (Helén and Tapaninen 2013; Tapaninen and Helén 2015). Research on German migration proceedings has shown that DNA evidence may trump other types of evidence in the absence of reliable documents (Tapaninen and Helén 2015; Heinemann and Lemke 2014; Heinemann et al. 2015). Importantly our analysis shows that in Finland the evidentiary weight invested in DNA is, by contrast, highly uncertain. In this article we concretize how this is reflected in the outcomes of family reunification decisions. To treat information derived via personal narratives vis-à-vis information derived from DNA analysis appears counter-intuitive as they produce two entirely different types of evidence: one characterized by objective and virtually unchallengeable ‘factualness,’ the other by highly subjective interpretation and personal recollection. How, and under what kind of rationales, are they assigned equal explanatory weight as vehicles of ‘reliable facts’ in the bureaucratic and legal proceedings of immigration management? So far these questions have not been covered extensively in existing literature. The deployment of DNA testing for family reunification has mostly been studied by focusing on the ethical implications of compulsory testing (Taitz et al. 2002; Villiers 2010; Weiss 2011; Dove 2014). Alternatively, studies have focused on differences in legal and administrative structures. DNA analysis has also been approached as a ‘biological lie detector’ in the context of ubiquitous suspicion of fraud in the managing of immigration (Weiss 2011) or as a form of geneticization of the concept of the family (Heinemann and Lemke 2014; Heinemann et al. 2015; see also Lippman 1991; Finkler 2000). Our approach differs from this corpus of studies by extending the question from the demand of DNA information to the intricacies of decision-making. We contextualize the use of DNA analysis by connecting it to other forms of investigation, interviews in particular. The precise questions presented to all family members—exemplified by the location of the well in the opening vignette of this article—is another way of digging up ‘the truth’ to prove and/or disprove the claims presented by applicants. Hence, incommensurable pieces of evidence are set side by side in unpredictable ways. We substantiate our analysis via a close study of 253 appeals concerning family reunification applications to the Administrative Court of Helsinki between 2003 and 2014. The analyzed cases include all decisions of the court from this time frame containing the term ‘DNA’ either in the appeal or in the Court’s decision. Specifically, our analysis focuses on the 51 cases in which DNA testing had already confirmed the existence of biological family ties but the Finnish Immigration Service had, nevertheless, rejected the application. This choice of data was based on our earlier research comparing the role of DNA testing in family reunification in Austria, Finland and Germany (Weiss 2011; Helén and Tapaninen 2013; Heinemann et al. 2013; Heinemann and Lemke 2014; Heinemann et al. 2015). These studies have provided a perspective for discussing the role of biotechnologies in immigration control through the notion of biological citizenship (Helén 2014; Heinemann and Lemke 2014). The broader context for this study is related to the ongoing global ‘refugee crisis,’ which in Europe affects particularly states bordering the Mediterranean. Over the past few years this crisis has started to embody itself increasingly on a continental level, reaching also Northern Europe. Yet, the scale remains very different in these two geographic locations. An overview of immigration in Finland casts it spontaneously as offering almost the polar opposite to what we see currently unfolding in Greece and Italy. The reality of the latter two states is characterized by tremendous numbers of immigrants, many of them undocumented, chaos and confusion, with prolonged processes and uncertain outcomes, a scene discussed for example by Heath Cabot in her work on Greece NGOs (Cabot 2012, 2013, 2014). Finland, by contrast, is characterized by low numbers of immigrants and a highly legalistic and centralized state system. These features apply also to Finnish immigration, and the relevant legal provisions applying to family reunification emphasize the ‘machine-like’ elements of immigration proceedings. Finland is widely recognized as a ‘model human rights country’ in its participation in the international human rights regime (Halme-Tuomisaari 2010), and it has further been an international pioneer in regulating DNA testing by law (Helén and Tapaninen 2013; Tapaninen and Helén 2015). We were expecting that these elements would be visible also in the Finnish family reunification cases we analyzed. We anticipated that our in-depth study of types of evidence utilized by a well-functioning and established bureaucratic immigration setting would enlighten us not only on the kind of outcomes that family reunification appeals produced, but on the kind of evidence that was relied on in making them. We further believed that these cases would shed light on the way DNA evidence is evaluated, and the kinds of definition of true family ties that they played out. Yet as our research advanced, it began to tell a very different story. Consequently, instead of predictability and certainty of process and outcome, this article speaks ultimately of both the intrinsic superficiality (Latour 2004) and the indeterminacy of legal language and proceedings (Tushnet 1984; Boyle 1985; Kennedy 2002; Koskenniemi 2006). Via its analysis of Finnish family reunification appeals this article explores what consequences these features have on the bureaucratic and legal proceedings, which, ideally, would rather produce certainty and closure. Our analysis links up the with recent ethnographic work on documents (Latour 2004; Riles 2006; Strathern 2006; Hetherington 2011; Halme-Tuomisaari 2012, 2013), particularly discussions on their capability to produce (un)certainty (Kelly 2011; Navaro-Yashin 2012). Building on Kregg Hetherington’s discussion of ‘information’ and ‘interpretive stability’ (Hetherington 2011: 5, 9) we focus in particular on processes aspiring to bestow distinct data the status of reliable information (Halme-Tuomisaari 2013); as Hetherington reminds us ‘in a world of confusion and uncertainty … information is certainty itself’ (Hetherington 2011: 5). Thus in this article we analyze the family reunification appeals fundamentally as struggles initiated by the applicants—or in the case of underage children, by their guardians—on whether they are capable of offering information over themselves and thus to make legitimate representations over reality, with the desired end point being certainty over the courses of their own lives and those of their families. Our principal question concerns how and why various forms of data become accepted as ‘factual information’ capable of offering this desired certainty in the legal proceedings we examine. In this aspiration we adhered to a highly quantified ‘objective’ methodology, attempting to dissect our cases as precisely as we could in an almost desperate search of definitive answers. Our conclusions are somewhat unexpected: we suggest that, in fact, one cannot reach certainty no matter how deep one digs. Consequently what our findings ultimately highlight is infinite indeterminacy. The wording of relevant legal provisions is vague, and a general sense of open-endedness is reinforced by the decisions of the Finnish Immigration Service. Our selection of appeals confuses matters further: it shows how the very same factors that may have caused the applicants to leave their families and contexts of origins in the first place—the humanitarian grounds that have pushed them to apply for and receive international protection—may ultimately produce arguments against their applications to be united with family members in their new country of residence. 2. Verifying family ties For people on the move, family reunification has become a major ‘channel’ to Europe: as migration policies have generally tightened, family reunification remains one of the few ways continually open for migrants to enter into Europe (Cholewinski 2002; Kofman 2004; European Migration Network 2008; Pascouau 2011; Ruffer 2011). Yet in recent years family reunification has become continually more difficult due to amendments in relevant legislation as well as to tighter interpretations of existing legislation. The Finnish case exemplifies both these features. The legal code governing Finnish immigration policy is called the Aliens Act (SDK 301/2004), which entered into force in 2004. The previous Acts originate from 1984 (SDK 400/1983) and 1991 (SDK 378/1991) (see Lepola 2000: 76–124). Since then the Aliens Act has been amended over 30 times—a reality that makes examining the relevant legal provisions of individual family reunification appeals extremely complex. The high number of amendments can be linked both to EU legislation and to the recently changed policies of Finnish immigration. Up until the 1980s, Finland was a country of labor emigration and even today the migratory ‘flows’ have been less significant than in the other Nordic countries. In 2014, the last year covered by our sample, less than 4 per cent of the Finnish population comprised foreign citizens, one of the smallest proportions in the EU (Eurostat 2015). Finnish migration has distinct national characteristics due to its historic specificity at the border of ‘East’ and ‘West’ and its three largest groups of foreign citizens have continuously been from the neighboring countries of Estonia, Russia, and Sweden (Statistics Finland 2015). In terms of percentages immigration to Finland has multiplied over the past two decades and growing numbers of asylum seekers have significantly contributed to this development. Simultaneously, historic migration trends have altered, as the country has seen its proportionately largest increases in migrants and asylum seekers, particularly from Somalia, but also China, Thailand, Iraq and Turkey (Statistics Finland 2015). Autumn 2015 saw a sharp shift as an unprecedented number of asylum seekers have fled to the country from Somalia, Iraq, Afghanistan and Syria. Still by international standards immigration numbers remained low, when compared to, for example, Greece.1 This increase in volume, and the changed profiles of new arrivals, have elevated immigration into a momentous political issue in Finland, echoing wider political currents in much of Europe (Andersson 2014a; Horsti and Pellander 2015; Fingerroos et al. 2016). In Finland, applications based on family ties currently amount to up to two fifths of all applications for a residence permit in the years covered by our sample. In recent years family reunification has become increasingly difficult, especially in cases in which the sponsor’s residence permit is based on international protection.2 When analyzed in the abstract, the Alien Act’s definition of ‘the family’ is almost surprisingly permissive. Under specific circumstances, underage siblings of an unaccompanied minor and other relatives such as grandparents and foster children can be eligible for family reunification. In reality, this definition appears almost as too restrictive: as our analyzed cases illustrate, we are dealing with families whose members are dispersed around the world and who commonly reside in conflict-stricken areas. Most of the cases in our sample also relate to applicants who have initially received residence permits in Finland on humanitarian grounds. Simultaneously the actual interpretations of relevant legislation by the Finnish Immigration Service are significantly more restrictive than this permissive wording might suggest, as also scholars have noted (Förbom 2014). A press release by the Finnish Immigration Service from 2008 assists us in understanding the dynamic at stake in the process as it states that ‘(a) purely biological relationship is not ... sufficient for a positive decision on residence permit without the background of a genuine, permanent family life’ (Finnish Immigration Service 2008; italics added). DNA evidence of family ties needs to be accompanied by ‘other’ data, though the precise kind is left unspecified. Aspiring to greater certainty we perused the Aliens Act governing immigration in Finland (SDK 301/2004), examining the definitions of family ties and thus ‘family’ that emerge from it. Contrary to the wording of the press release of the Finnish Immigration Service cited above, their family life may not have been convincingly ‘permanent’—a condition which is, not coincidentally, commonly linked to the root causes of individuals becoming migrants in the first place. When fleeing, and during the application process, contact between family members may become sporadic while, in the course of the years that application and appeal processes take, family members may die or disappear. In the decisions we analyze it is often concluded that the family tie had ceased to exist during the lengthy separation. Our case sample illustrates further how ‘culturally’ predominant notions of ‘the family’ differ between the applicants’ contexts of origin and those embedded in Finnish bureaucracies: in addition to biological parents and under-aged children, relatives such as grandparents, foster parents, aunts, cousins, nieces, nephews, children and siblings of full legal age can be included among family members in these appeals. Cultural considerations do, however, have some resonance in Finnish immigration policies. In the web pages of the Finnish Immigration Service (Finnish Immigration Service, 2015) it is clarified that, ‘[T]he sphere of family members is laid down by law and does not necessarily correspond to general views on what constitutes a family member. The Finnish concept of family is narrower than that of many other countries.’ Here, as can be expected, the legal wording references the predominant nuclear-family model of Finnish society. The reality, therefore, introduces an additional element into the role that DNA testing imposes on notions of the family: when biological relatedness becomes the proof of true family ties the procreative family becomes the standard model, dictating the eligibility of applications by ‘aliens’ for family reunification and thereby establishing a ‘double standard’ for family recognition (Heinemann and Lemke 2014). The use of DNA evidence, however, is less pronounced in Finland than, for example, Germany, since a positive test result is neither a necessary nor a sufficient piece of evidence in Finnish applications (Tapaninen and Helén 2015).3 Although the appeals that we examine relate to family reunification and not asylum applications, it is relevant to note that the background of the sponsors in the cases under appeal is almost always one of international protection. This, in turn, commonly translates into an absence of reliable documentation of family ties such as birth certificates, marriage certificates, or adoption documents. This places applicants at a disadvantage when trying to reunify with their families and DNA testing is often seen as their last resort. This explains the statistical discrepancy between our sample and all sponsors or family reunification: whereas former asylum seekers predominate the appeals of the cases that we examined, they are only a minority among the sponsors of family reunification (Fingerroos et al. 2016).4 In Finland, the importance of genetic relatedness has been a constant since the incorporation of the two sections on DNA testing into the Aliens Act in 2000 (SDK 114/2000). It is also routinely used to provide apparently accurate proof of alleged family ties to complement interview data as outlined above (Tapaninen and Helén 2015). The applicant or the sponsor is provided an opportunity to prove kinship with DNA analysis ‘if no other adequate evidence of family ties based on biological kinship is available and if it is possible to obtain material evidence of the family ties through DNA analysis’ (SDK 301/2004, Section 65(1)). It is thus offered as an opportunity, not a demand by the authorities. Moreover, it is free of charge for the applicants themselves. The provisions imply that DNA analysis is the last resort after other investigations have been deemed inadequate. However, in 51 of the selected cases DNA testing had preceded further investigations into the existence of ‘genuine’ family ties. The Finnish Immigration Service, the office responsible for all applications for asylum, residence permits and citizenship, also coordinates DNA testing in cooperation with the two authorized public labs, Finnish Embassies, the Police and the (municipal) health care centers. The thorough centralization of the system is also evidenced by the fact that, pursuant to Subsection 66(1) of the Aliens Act, the results of the test are sent to the Finnish Migration Service. Applicants are thus neither given the results nor, as explicated in the updated instructions of the Finnish Immigration Service, 2015, can they demand or initiate testing themselves. The applicants can only request it from the Administrative Court in their appeal, a course of action, which actually occurred in 127 cases of our sample. Importantly, neither DNA testing nor biological ties are referred to in the legal wording on family ties. However, in decision-making genetic relatedness verified through DNA analysis may indeed be a necessity, thereby actually defining true relations through biological ties. This applies also in cases that do not, by definition, require genetic relatedness, such as marriage or fosterage. As outlined by Section 37(2), unmarried couples, cohabiting couples and same-sex unions are included in the definition of marriage-like relationships at the level of legal language. Furthermore, this Section does not differentiate between ‘biological’ and ‘social’ affiliation, that is, between biological children, adopted children and stepchildren but refers only to custody. However, the existence of a marriage-like tie can potentially be proven by a joint biological child. In our material, DNA testing was mentioned even though the relatives concerned may have been genetically more distant than immediate family, and it is for the extended use of DNA profiling that as many as 253 cases matched the criteria of our sample. In Finland, there are myriad potential uses of DNA testing, including the testing of credibility (see also Tapaninen and Helén 2015). 3. Analytical break-down: searching for quantified certainty This overview of relevant legal provisions governing family reunification contextualizes our analysis of the 253 selected appeals from the Administrative Court of Helsinki. What can we learn from them? What kind of notions of ‘the family’ emanate from these legal proceedings? What do these cases tell us of the weight given to biotechnological evidence? What kind of images of the importance of DNA evidence versus personal narratives do these appeals promote? In fact, we can say very little about any of them. We conducted extensive quantified data analyses with the goal of finding solid ground for these arguments. Yet the deeper we dug, the more amorphous things became. Ultimately we had no choice but to adjust our hypothesis and agree that our data – embedded in legal proceedings – had a different message: it backed up an argument supporting claims of the superficiality (Latour 2004) and indeterminacy (Tushnet 1984; Boyle 1985; Kennedy 2002) of the law and legal proceedings, and the outcomes that this legal reality had on migrant experiences and destinies. Having commenced with a few general observations, we move on to concretizing our findings via analytic details using Atlas.fi, a program designed for qualitative analyses backed up by quantified certainty. All the analyzed appeals had to fulfill two prerequisites: first, the appeal had to be connected to residence permit application on the basis of family ties; and second, the dossier had to include the term ‘DNA.’5 In the first phase of analysis each of the 253 documents were organized by five primary umbrella categories. These categories were then re-examined, and new layers of details were added with the purpose of pinning down the most significant general patterns. By the end of analysis the total number of categories approached 150. Of the five umbrella categories, the first included basic facts about the applicant(s): country of origin, number of applicants and the relationship between sponsor and applicants. The second category focused on elements derived from the Court’s decision: the result of court proceedings, decision date, the identity of the advocate, the composition of the Administrative Court and whether the decision was arrived at via a vote due to diverging opinions. The third category targeted the arguments that the applicant had put forward along with the legal provisions referenced. The role of DNA evidence was examined and organized separately, as will be elaborated below. The fourth category consisted of the legal provisions referenced by the appeals, although it should be noted that these were not elaborated in every case. The fifth category listed the merits that the Administrative Court had singled out from the broader details of the case. In the finalized, quantified analysis these include codes such as ‘inconsistencies in narratives,’ ‘family life has voluntarily ceased to exist,’ and ‘subsistence not adequately guaranteed,’ as well as ‘circumvention of the provisions of entry and residence.’ The applicants come from 27 different countries with an overwhelming majority of cases concerning Somali applicants—181 cases out of 253, or over 70 percent, of all the cases from which our data was drawn. Thus we can conclude that the vast majority of the cases that we discuss in this article address Somali nationals, which returns us to the heart of the changed patterns of Finnish immigration, which were discussed earlier.6 The most common argument used to defend family reunification is biological relatedness, an argument elaborated below alongside with the Court’s responses. Yet this argument was rarely raised alone but instead supported by others, the most common being the best interest of the child, the health of the applicant, proof of active communication during separation and an emphasis that actual family life had ceased to exist because of compelling reasons and not voluntarily. What about DNA evidence—what impact did it have on court decisions, that is, on the 16 percent that were overturned? In the appeals, DNA tests emerge in five different roles: first, a demand for a DNA test had been made by the applicants; second, a DNA test had been done and proven biological relatedness; third, a formal opportunity for a DNA test had been provided but the test had not been realized because of the dangers and expenses involved in the journey to the nearest Finnish Embassy;7 fourth, taking a DNA test had been refused; and finally, a DNA test had shown uncertainties in the nature of biological relatedness. Importantly, in 127 cases, half of all cases, the test had not yet been done. The appellant(s) either demanded DNA testing or gave their consent to testing in advance, which attests to the fact that it was seen as the (only) option that could ensure family reunification. In all its simplicity, this is one of our key findings and is congruent with our interpretation of the rationales of DNA testing: it could combat fraud and/or secure human rights (Helén and Tapaninen 2013; 2014). In the vast majority of cases where a DNA test had not been conducted—in 77 out of 127—the Court had stated that there was no need for one. Further, in almost all of these cases, 74 in total, the Court dismissed the appeal, stating in its decision that it was not necessary to test whether a biological relationship existed because the judicial definition of a family had not been fulfilled due to other factors. The Court is explicit in these cases: ‘A DNA test cannot provide further clarification whether an actual relation of care existed’—argumentation that links to the aforementioned emphasis on ‘genuine family ties.’ In the remaining three cases where a DNA test was not carried out, the Court states that there is no need for one as kinship has been proven adequately by other means. In these cases the decision of the Finnish Immigration Office was revoked.8 3.2 Consistent DNA analyses, inconsistent narratives We selected 52 cases for closer scrutiny. In them a DNA analysis had been carried out and had proved the undoubted existence of biological relatedness—yet the Finnish Immigration Service had rejected the application nonetheless.9 Importantly, this finding, despite its unambiguous ‘factual’ nature, did not translate into certainty over the Court’s decision: the Court dismissed the majority of these cases, 40 in total, overturning only 10 of them; in the remaining two cases the appeal was rejected for some applicants, overturned for others. Why did the Court not overturn these 40 decisions by the Finnish Immigration Service? The Court enlists several types of merits, which have been considered in the decision, but it is impossible to decipher which carry the greatest weight. Often the Court’s arguments overlap. The most frequently recurring argument is that genuine family life had already ceased to exist before the sponsor departed; an argument made in three out of four of the dismissed cases. In three out of five instances the Court mentions inconsistencies in the narratives of the applicants; in two out of five the Court states that family life had ceased voluntarily upon the applicant’s departure, thereby inadvertently indicating an understanding that departure must have been voluntary. This appears grossly contradictory since in all of these cases the sponsor has been given some form of humanitarian protection, in other words, protective status because she or he had compelling reasons to depart from the context of origin. What does the Court mean when it refers to ‘inconsistencies’ in narratives? Personal narratives refer to data derived via interviews, which in the absence of acceptable documents on family ties are gathered from all applicants. This data are highly problematic in its nature: often evidence sought by the interviews is very specific, as was illustrated by the opening vignette of this article. Various family members may be asked about the location of a water source; other cases query the colors of doors, schools, the material of a roof or fence, details about clothing and food at a wedding ceremony, questions and descriptions of the types of products family members sold at local farmers’ markets, how and where family members were killed, and who attended their funerals. Furthermore, the applicants are expected to know details of the sponsor’s life in faraway Finland. More importantly, these and similar details that were in numerous instances highlighted as embodying ‘inconsistencies in narratives,’ collectively comprised a category that then trumped actual biological relatedness that had been verified via DNA analysis. Yet the interviews may be carried out after lengthy family separations and after periods of time characterized by chaos, shared trauma and displacement, factors not considered in assessing the veracity of personal narratives. Consequently they do not amount to acceptable explanation for why interviewees—including children—might struggle to recall minute details of their everyday lives in the past. The quest for truth also extends to details of traumatic experiences—killings, disappearances, deaths and separations—which must have influenced recollections. In one case, a mother residing in Finland wanted to reunify with her son, whom she had lost when fleeing an armed attack. When hearing through a radio broadcast that his mother was alive and looking for him, the son could make contact after two years of separation. He had first lived with a couple in the countryside but then moved to Addis Ababa to an acquaintance for the application process. The decision details that ‘his father had been killed in a missile attack in 2002, 2005 or 2007. In the same attack his sister called XX had also been killed, but she [the mother] does not remember the year of birth of her daughter.’ There are several temporalities (Andersson 2014b) at work here. Failing to recollect traumatic dates stands in stark contrast to the long separation that the application process further extended by two years. The immutable proof of DNA analysis evidenced that the applicant is the sponsor’s son but as he turned 18 during the process he was no longer a child in need of custody. In some of the appeals the diverging figures are explained by referring to illiteracy or to the fact that the interviewee ‘was only ten and did not understand the difference between a week, a month and a year.’ Various sources indicate that inconsistencies in narratives are actively sought by interviewing all the applicants including children over 12 years of age or even younger if they are considered mature enough. The interviews exemplify the criteria of effectiveness pursued through ‘detailed and unexpected questions’. In the making of facts, the questions that can be answered with numbers seem to count the most: dates and years, the number of rooms in the family home, the sums of money sent by the sponsor—and the distance to the water source as in the opening vignette of this article. Personal narratives can also be viewed as too consistent, which again raises doubts of artificiality. This is indicated by a recent memorandum on family reunification (Maahanmuuttovirasto 2013: 4). In our material, no such doubts were expressed, although in one case it was noted that a child had admitted to the interviewer that his mother had told him to give a particular answer. It must be remembered, though, that the facts that make a difference are the outcome of multiple translations, both concrete linguistic translations and those of the form: the questions sent by the Finnish Immigration Service to the Embassies and the Police, the questions and answers formulated via interpreters, the inscriptions of the notes, the interpretations by the Finnish Immigration Service and thereafter at the Court. Moreover, they also include the inscriptions made by the Border Guard or the Police at the asylum interview. Ultimately, inconsistencies in narratives—which appear as the most recent category in the Court’s argumentation—seem to carry more weight than a proven biological relationship. In seven cases the Court does not mention the DNA result at all in the decision, and in 16 decisions it is acknowledged but it had no impact on revoking the earlier rejection. Hence, why were—and are—DNA tests done? Inconsistencies are themselves further interpreted in two alternative ways, which sometimes overlap: the Court may state that these inconsistencies testify that the applicant has intentionally given wrongful information in order to circumvent the provisions of the Aliens Act. In these instances the Court then refers to Section 36(2) of the Act, which states: ‘A residence permit may be refused if there are reasonable grounds to suspect that the alien intends to evade the provisions on entry into or residence in the country.’ Alternatively the Court may conclude that differences in narratives signal that a genuine family has not existed at all prior to the family reunification application. All of these factors increase the uncertainty that applicants face as their family re-reunification applications are processed. Even if all applicants are genetically related, their application may be rejected because of inconsistencies—or, ironically, too great a degree of consistency—in the narratives. This analysis suggests that Finnish immigration procedures have an inbuilt tendency to assume that applicants attempt to circumvent immigration laws by offering fradulent data via personal narratives. In some cases the absurdity of the reliance on this premise can even be seen in the way dates of entry into Finland are expressed by stating that ‘according to the sponsor, she had applied for asylum on [the date]’—as if this were not officially registered. 4. Ambiguous criteria and perpetual uncertainty What have we learned of the ability of specific types of information to assist applicants in their quest for certainty, to return to Hetheringtons’ analysis on information (Hetherington 2011)? What is the role of DNA information in these appeals? What is its weight as evidence when compared to information derived via personal narratives? What kind of notion of the family is embedded in these legal proceedings? To phrase these questions differently: if we were approached by claimants hoping to overturn unfavorable family reunification decisions by the Finnish Immigration Service via an appeal at the Helsinki Administrative Court, what would we tell them? What would we instruct them so as to pass through this particular phase of migration proceedings and free themselves of the state of ‘stuckedness’ (Hage 2009)? What kind of information would we instruct the applicants to include in their dossiers in their quest for certainty: DNA evidence of biological relatedness, uniform narratives of everyday life, or something else? We fear that we would have few instructions to give. First, we would have to be realistic and point out that if a family reunification case is rejected by the Finnish Immigration Service, this decision is most likely to be upheld in the appeal process. Curiously, there is a clear statistical deviation that characterizes our data: in cases where DNA is mentioned, the percentage of cases that are not overturned is notably greater than in other immigration appeals. Thus, whereas 40 per cent of all cases related to immigrants were overturned by the Administrative Court of Helsinki, the percentage for our sample, selected on the basis of using ‘DNA’ as the identifying feature, was much lower, only 17 per cent. This discrepancy has a likely identifiable cause linked to particular features of Finnish immigration discussed above: most of the cases in our sample deal with Somali applicants and, to date, no official documents from Somalia are acknowledged by the Finnish authorities; investigations, therefore, are based a priori on interview data and DNA evidence. Overall statistics of the Finnish Immigration Service show that it is much more difficult for Somali applicants than those originating from other contexts to receive positive decisions on their applications (Maahanmuuttovirasto 2015b). Our findings indicate that the same applies in the decisions of the Administrative Court. These factors are directly linked to the prolonged crisis in Somalia that acquires relevance in our analyzed cases as it has commonly affected the everyday life of the applicants’ families prior to the departure of the sponsor. Thus in these appeals this fact often translates into evidence against the applicants. In many appeals it was concluded that the family had not enjoyed the kind of ‘permanence’ of family life required by the Finnish Immigration Service prior to the sponsor’s departure. Alternatively, these facts were interpreted to mean that real and effective family ties had ceased to exist, and thus there were not sufficient grounds for family reunification. As a consequence, it is extremely difficult for Somali applicants to convince the authorities of the ‘genuine’ nature of their family ties. What kind of common features characterize the 17 per cent of appeals in our sample that have been overturned by the Administrative Court after a negative decision by the Finnish Immigration Service? Curiously, despite our detailed analysis we have been unable to identify firm criteria. This much appears uncontested: conforming to all relevant legal provisions at both the Finnish and European level was a prerequisite for a successful appeal, but again brought no certainty of outcome. Such certainty was neither offered by proof of regular contact with, or financial support to, family members while they resided outside their context of origin. Having small children for whom family reunification was sought, or a high level of education among applicants, improved the odds of having a negative decision overturned. By contrast, virtually all cases where applicants attempted to be united with a large number of family members were rejected, either for all or some of the applicants. Genetic relatedness with those with whom one seeks to be reunited is a practical prerequisite—yet as we have discussed, this element alone is insufficient for a positive decision on an initial family reunification application or appeal. Curiously our sample includes cases in which not having a biological relationship has not mattered either, as a negative decision by the Finnish Immigration Service has been overturned by the Court irrespective of this fact. Surprisingly, time also trumped DNA evidence of biological relatedness: in numerous cases the prolonged period that had elapsed since the sponsor had departed was interpreted as having severed the kind of genuine and close family ties that are increasingly interpreted by both the relevant Finnish bureaucrats and judges to be required by the various, frequently modified provisions of relevant legislation. Very unexpectedly this argument also emerged in cases where the prolongation of the period between the departure of the sponsor and the decision delivered by the Finnish Immigration Service was directly caused by a prolonged processing period by the Immigration Service itself. Time emerged as a significant factor when a sponsor or the applicant was under-aged when initiating family reunification processes, but had reached the age of 18 during the course of it—an age when a person is legally considered to be an adult and thus not eligible for family reunification according to a strict interpretation of the Aliens Act. Again, this argument was also raised in cases when the delay in processing was the direct result of prolonged legal proceedings. It is both noteworthy and anomalous that the argument of prolonged time is utilized against the applicants even though most sponsors in our cases are under some type of international protection. Such an interpretation almost suggests that applicants are being punished for the situation in their home country or for their insecure family life as these legal proceedings translate their most profound tragedies into an insurmountable hindrance to restoring normal life in the future. 5. Firm conclusions on legal uncertainty How do we understand these findings and what is fundamentally at stake in these appeals? One could argue that the diverse patterns illustrated here speak of systematic anti-immigrant prejudice that has become embodied in the subtle details of immigration bureaucracies and legal practices: the interview setting geared toward exposing the possible fraudulence of applicants; the continually changing provisions of the Aliens Act which almost appears to be in constant movement just to confuse applicants and make it impossible for their claims to prevail; the infinite shifting in preference between different types of information which makes compiling persuasive appeals virtually impossible. Various elements of these proceedings illustrate a systemic tendency by Finnish immigration officials to view immigrants as cheaters who are actively attempting to circumvent migration regulation, thus aiming to find entry into Finland on false grounds. This interpretation is supported by interview data with migrants themselves as well as lawyers who handle immigration applications (see Tapaninen and Helén 2015). According to a survey by the Refugee Advice Centre on the best interest of the child, it has practically become impossible for unaccompanied minors arriving in Finland to be later reunited with their family members because sending the child—an alleged ‘anchor child’—to safety is read as a form of circumvention of the provisions (Pakolaisneuvonta 2015). This was actually spelled out in a memorandum on family reunification by the Finnish Immigration Services (Maahanmuuttovirasto 2013). A highly critical view of systemic anti-immigration sentiments was also promoted by a study by Jussi Förbom (2014) who claims that in its restrictive interpretation of the Aliens Act, The Finnish Immigration Service has decreased the discretionary scope of legislation, thus effectively diminishing the Act’s application.10 However, this answer is only partial for, ultimately, what we have shown does not support an interpretation of anything this systematic. This point is crucial as it also departs from what we thought we would find, namely a clearer understanding of the role that DNA information plays in immigration policies and the consequent shifts in notions of biological citizenship (see Helén 2014)—issues that motivated the research behind this article in the first place. Why did we not find answers to these questions from the case data that we examined? We link an answer to the distinct quality of our data—namely, its intrinsic nature as part of the law and legal proceedings. Here we have to remind ourselves of a basic tenet of ‘the law’ and one of its primary qualities: through it one is never connected with ‘real reality,’ but always, rather, with ‘legal reality.’ Although the two may—and ideally should—have a strong resemblance to one another, in actuality they always remain distinct. It is on this foundation that we also must place our analysis. In this reality one of the dominant features of ‘the law’ is its conceptual open-endedness—the very element that simultaneously captures the most fundamental function of legal processes as an instrument via which opposing arguments can be put forward (Kennedy 2002; Koskenniemi 2006). This reflects a characteristic both more profound and, ironically, more superficial which links up with another classic definition of positive law most aptly summarized by Hans Kelsen: a positive legal system effectively creates its own reality, and thus there is no point in attempting to locate a ‘deep structure’ or an ‘original norm’ that guides the stipulations of right and wrong that the law promotes (Kelsen 2009). Bruno Latour advances a similar argument in his analysis of the French Administrative Court, demonstrating that the biggest challenge for the ethnographer is not to grasp the full complexity of the processes at hand, but rather to understand and accept their simplicity. As he phrases it: There is no point in studying the law in depth! The relationship between appearances and reality which is so important in science, politics, religion and even art is meaningless here: appearances are everything, the content is nothing. This is what makes law so difficult to comment on for the other professions intoxicated by their desire for depth… The legal truth is so light, so flat that it could not to be grasped by minds that want to get to the bottom of things. (Latour 2009: 265) He continues by discussing the consequences of these fundamental characteristics of legal proceedings to ‘knowledge’ or ‘factual information,’ noting: ‘Unlike scientific information, the law constructs no model of the world that, via a series of transformations, would make it possible to revert to the original situation by foreseeing their nature from far away.’ (Latour 2009: 268) We can only conclude that all attempts to locate a ‘profound’ logic—either of notions of the family, of biological citizenship or of the assumed characteristics of applicants—with which we could explain our findings, result in filling gaps that in light of close scrutiny cannot be filled or explained. Indeed, the relevant facts of our analysis in light of the legal decisions that we have examined amount to the following: that the wording of the Aliens Act has continually changed; that the weight given to different types of evidence is in flux; that the 18th birthday of a child will cause an individual to be considered an adult; that inconsistencies in personal narratives will likely result in a case being dismissed. If we examine these findings from the viewpoint of the law, there emerges little uncertainty or controversy. First, it is only to be expected that legal decisions must be rendered according to legislation that is in effect at the time of making the decision. Here it is technically irrelevant to consider what kind of legal provisions were in place when the proceedings were initiated, or how they may have changed since. In theory, should such changes be so dramatic as to compromise the integrity of the legal proceedings as a whole, one could assume that a case might on some technicality be sent back for further consideration. As mentioned, our case sample does include some such cases in which the Administrative Court overturned the decisions by the Finnish Immigration service, but their number is limited. Thus—from a strictly legal point of view—the conclusion becomes that the relevant legislation, namely the Aliens Act, has changed repeatedly and legal decisions must be made on the basis of legislation that is in place at the time. It may be possible, of course, that these legislative changes are caused by deep-seated racist attitudes or anti-immigrant sentiments. Recent political debates in Finland on the subject of migration support the view that anti-immigrant sentiments have grown more pronounced in the country in recent years. Yet on the basis of legal documents we cannot pursue these questions. What about the argument that prolonged separation of family members has severed the kind of family ties that might otherwise have been deemed acceptable in the eyes of the law? Again, when approached from a strictly positivistic angle, the matter appears straightforward, and can be assessed on the basis of the requirements of sufficient evidence for making legal decisions. Here the time that has elapsed has made the gathering of sufficient and admissible evidence for proper legal proceedings impossible. It is true that ultimately in such instances the elapsed time comprises an argument against the individual’s claim even when everything about the person’s departure has been involuntary. In ‘real reality’ this is a valid concern, yet one can understand how in the eyes of the law this is insufficient: from a legal viewpoint the problem is one of insufficient evidence—and here the time that has elapsed acts as a relevant factor as it may have effectively hindered gathering such evidence. The list could be continued, but the main message has been established: from the viewpoint of the law alone the issues discussed in this article appear less dramatic, while the processes for rendering these legal decisions echo the superficiality of the law described by Latour. However, this superficiality advances a more profound message on the limits of the law as a regulatory instrument, and it is with this finding that we wish to conclude our analysis. Quite simply, what our analysis demonstrates is that, when applied to a highly complex ‘real reality,’ ‘legal reality’ simply lacks the capacity to tackle it, with the outcome that ‘legal reality’ ends up shifting continuously away from what is ‘right’ or ‘just’ in ‘real reality.’ Thus our conclusions convey a paramount message: in dealing with the kind of complexity that migrant destinies and their pleas to be united with their family members represent, even when operating exactly as a properly functioning legal system should operate, it remains a flawed, even incapable tool for guaranteeing certainty for immigrants in their quest to become the masters of their destinies. 5. Conclusion As we have shown via our analysis of the Finnish legal system and its elaborate bureaucracies developed to address immigration, we are dealing with a Western European country that is internationally distinguished by its low number of immigrants as well as by the elaborateness of its administration. Everything that we have discovered in our research suggests that in many respects this state-directed machinery forms close to a textbook example of how immigration issues should be handled according to proper administrative processes—save the commonly exceeded time limits (of 9 months) for application processing. Our case study concerns a country with one of the lowest corruption rates in the world, as well as an elaborate and well-functioning legal system where immigrants applying for family reunification not only have access to these proceedings, but are also given state sponsorship for legal counsel. Appeals are processed with great precision without charges of corruption or blatant bias. Yet, despite all the external markers which tick the boxes of ‘rule of law proper’, the reality is one of considerable uncertainty: applicants remain unsure not only about the course of their appeals, but also about the evidence and criteria that will be relied upon as their appeals are processed. Or put even more starkly, in the case of the Somali applicants in our sample they face great probability of a negative decision, but will remain uncertain as to why this decision will be made, even in cases where DNA evidence offers supports their claims for nuclear family relations. What kind of conclusions can be drawn from these findings? What can we identify as a root cause for the indeterminacy characterizing our analysis? One possibility is to argue that our findings speak of a deep-seated desire to turn down certain kind of applicants—particularly Somali nationals—and that our case study illustrates how these desires have found embodiment in unpredictable institutional policies geared toward producing negative decisions. Recent research that has shown that actual interpretations of relevant legislation by the Finnish Immigration Service are significantly more restrictive than the permissive wording of legislation itself could be seen to support such a conclusion. Indeed, our case study does make such an interpretation possible. However, ending with such conclusions, at least alone, would appear as too restrictive and deterministic as it would overlook a paramount element of our analysis: the indeterminacy that characterizes our query in general, making such clear-cut interpretations of systemic bias very difficult to sustain. Rather we suggest that an answer needs to be sought elsewhere, namely the fundamental ambiguity that characterizes such multi-faceted proceedings, and finds in our case study its articulation in the superficiality of the law. Thus, so we argue, our case study ultimately testifies of the limits of the law to produce certainty over outcome, both in cases concerning family reunification and also more generally. In family reunification cases the issues at stake are just too complicated, the relevant facts too many, fluid and complex, and the people involved too numerous. Metaphorically, we are left with an image of these legal proceedings as forming a maze that terminates at a gate that the applicants must pass through in order to be united with their families. As applicants enter the maze, they equip themselves with varying kinds of information, including that carried by their bodies in the form of their DNA, hoping that this will allow their applications to prevail. Yet each step of the way presents new surprises—new demands and criteria for information which eternally confuse the desired goal of certainty. Ultimately they either successfully reach the gate by having their family reunification appeals upheld by the Administrative Court of Helsinki—or have to face disappointment. However, despite the difference in these outcomes, they bear a significant commonality: because of the complexity of the legal processes that we have described here, the applicants will never know why or on what basis their cases were decided in their favor or against them—whether knowing ‘where the well was’ held any significance or not. Thus even in those cases where ‘the law’ is able to offer the outcome that they set out to reach, the applicants will forever remain in the dark as to exactly what kind of information allowed them to enter through the gate. Their experience, as well as the outcome of this research, remains one of uncertainty and ambiguity. Conflict of interest statement. None declared. Funding This article has been created under the auspices of the research project, ‘Bodies of evidence: interplay of documents, narratives and biotechnologies’, funded by the Kone Foundation, Finland, and directed by Professor Ilpo Helén (2014-2016). Statutes cited Ulkomaalaislaki SDK 400/1983; Ulkomaalaislaki SDK 378/1991; Laki ulkomaalaislain muuttamisesta SDK 114/2000; Aliens Act SDK 301/2004; Laki ulkomaalaislain muuttamisesta SDK 549/2010; Laki kotoutumisen edistämisestä (SDK 1386/2010). Footnotes 1. Updated statistics on migrants and asylum seekers are available at Statistic Finland, http://statistics.migri.fi/#decisions/23330?start=540&end=551. 2. The success rates varied according to the status of the sponsor. In 2014, for family members of beneficiaries of international protection it was 48%, whereas it was 86% for family members of Finnish citizens and 84% for others (Maahanmuuttovirasto 2015a). After recent amendments to the Aliens Act (SDK 549/2010) and the new Act on the Promotion of Immigrant Integration (SDK 1386/2010) there was a significant drop both in the success rates and in the number of applications. These years also witnessed a considerable backlog of Somali applications that was ‘cleared’ in January 2015. From 2012, family reunification applications have to be filed in person in a Finnish mission, and the travel arrangements must be paid for by the applicants. The cases in our sample were mostly filed during the period of congested applications and long processing times. 3. It must be emphasized, however, that we do not know how often the option of DNA analysis is not provided by the Finnish Immigration Service or how often a negative test result is used as a basis of rejection that nevertheless is not appealed against. Neither do we know whether the unexpected results are ‘discreetly’ omitted in the decisions as argued by the authorities (see Tapaninen and Helén 2015: 48–49). 4. As the status of the sponsor is not always made clear in the decisions, we cannot give exact numbers. 5. To contextualize this data, the total number of appeals handled by the Administrative Court of Helsinki during the same period was 101,245. Of these, 20,641, or approximately 20%, addressed issues related to immigration. The number of appeals rejected on the grounds of family ties is 3,602. To give an understanding of the success rate of appeals: in this category the Administrative Court overturned the decision of the Finnish Immigration Service in circa 40% of the cases, and thus in the majority the decision was upheld. Of the cases under scrutiny, 205 appeals (81%) were rejected and 41 (16%) revoked. In addition, in seven cases the appeal was rejected for some applicants and revoked for others. One case had become void due to the death of the sponsor/applicant. 6. This emphasis becomes even more predominant when we note that the second most common country of origin is the Democratic Republic of Congo with only 17 cases, followed by Afghanistan and Iraq with five cases. 7. In 18 cases a formal opportunity for a test had been provided but, according to the appeals, the journey to the nearest Finnish Embassy had been an insuperable obstacle. However, all of these appeals were dismissed—with only one exception in which the court found that the health of the applicant was too fragile for the journey to have been made, consequently overturning the decision of the Finnish Immigration Service. 8. 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Migration Studies – Oxford University Press
Published: Mar 28, 2018
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