Date when decision was rendered: 29.12.2016

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein haliinto-oikeus

Reference: Reports no. 2337/4/16 and 2389/4/16; 5634

Reference to source

KHO 2016:220.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, asylum, refusal of entry, armed conflict,
utlänningar, asyl, avvisning, väpnad konflikt,
ulkomaalaiset, turvapaikka, käännyttäminen, aseellinen selkkaus,

Relevant legal provisions

secions 88-1, 88c, 88e and 147 of the Aliens Act; section 9-4 of the Constitution Act; Articles 2-f and 15-c of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted

= utlänningslag 88 § 1 mom., 88c §, 88e § och 147 §; grundlagen 9 § 4 mom.; Europaparlamentets och rådets direktiv 2011/95/EU on normer för när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationellt skydd, för en enhetlig status för flyktingar eller personer som uppfyller kraven för att betecknas som subsidiärt skyddsbehövande, och för innehållet i det beviljade skyddet artikel 2-f och artikel 15-c

= ulkomaalaialaki 88§ 1 mom., 88c §, 88e § ja 147 §; perustuslaki 9 § 4 mom.; Euroopan parlamentin ja neuvoston direktiivi 2011/95/EU vaatimuksista kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelemiseksi kansainvälistä suojelua saaviksi henkilöiksi, pakolaisten ja henkilöiden, jotka voivat saada toissijaista suojelua, yhdenmukaiselle asemalle sekä myönnetyn suojan sisällölle artikla 2 alakohta f ja artikla 15 alakohta c.

ECHR-3; Article 19 of the Charter of Fundamental Rights of the European Union

Abstract

X was from Yemen and had applied for asylum in Finland.He claimed that if returned to Yemen, he would be persecuted because of his membership in a political party which pursued independence for South Yemen.The Finnish Immigration Service denied asylum and subsidiary protection.However, it found that because of the security situation in Yemen, X could not be returned to Yemen.Internal relocation was also not an option.X was issued with a residence permit for one year on humanitarian grounds.X appealed to the administrative court which held that X should be granted a residence permit on grounds of subsidiary protection.X wished to appeal further to the Supreme Administrative Court requesting asylum, but the court did not grant him leave to appeal.Instead, the court considered the appeal submitted by the Immigration Service.In the opinion of the Immigration Service the intensity of the conflict in the southern parts of Yemen had not reached such a high level that a person would, solely on account of his presence in the region, face a real risk of being subjected to a serious and individual harm.X was not eligible to subsidiary protection because he had failed to show that he would be specifically targeted by reason of factors particular to his personal circumstances.

In its decision, the Supreme Administrative Court referred, e.g., to the case law of the CJEU (C-465/07 Elgafaji; C-285/12 Diakité).The CJEU has held that in assessing the qualification for subsidiary protection the individual circumstances of the applicant must be taken into account.If the intensity of indiscriminate violence in an armed conflict in a country has reached such a high level that substantial grounds are shown for believing that the applicant would, solely on account of his presence on the territory of that country, face a real risk of being subjected to a serious threat to his life or person, it is not required that the applicant adduces evidence that he is specifically targeted by reason of factors particular to his personal circumstances.The Supreme Administrative Court also reviewed the case law of the European Court of Human Rights, in particular concerning the assessment of the security situation in a country involved in an armed conflict as well as the option of internal flight (J.K. v Sweden, judgment of 23 August 2016; Sufi and Elmi v the United Kingdom, judgment of 28 June 2011).

The Supreme Administrative Court noted that in assessing the leval of indiscriminate violence in Yemen at least the following indicators should be taken into account: the form and intensity of violence, the nature and geographical scope of the conflict and the parties to the conflict, the number of civilians killed, injured and displaced, and the daily circumstances of the people living in Yemen.The court continued that in assessing the eligibility for subsidiary protection the level of indiscriminate violence must be evaluated particularly considering the circumstances of the local population.In addition to the country information that the Immigration Service had relied on, the Supreme Administrative Court studied some more recent reports on the situation in Yemen.It found that the intensity of the conflict in Yemen has increased during the past year.Particularly the bombing of civilian targets has raised the level of indiscriminate violence during the past few months to such a high level that anyone present on that territory can be considered to be at risk of serious and individual threat to his life or person.Internal relocation was not possible in the current situation.The Supreme Administrative Court concluded that, based on the information available at the time of its decision, X was eligible for subsidiary protection.The court thus upheld the decision of the administrative court.

26.1.2017 / 6.6.2017 / RHANSKI

Date when decision was rendered: 5.5.2017

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 782/4/17; 2029

Reference to source

KHO 2017:71.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, residence permit, refusal of entry, armed conflict,
utlänningar, uppehållstillstånd, avvisning, väpnad konflikt,
ulkomaalaiset, oleskelulupa, käännyttäminen, aseellinen selkkaus,

Relevant legal provisions

sections 88(1), 88c, 88d and 147 of the Aliens Act; section 9(4) of the Constitution Act; Articles 2(f) and 15(c) of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted

= utlänningslag 88 § 1 mom., 88c §, 88d § och 147 §; grundlagen 9 § 4 mom.; Europaparlamentets och rådets direktiv 2011/95/EU om normer för när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationellt skydd, för en enhetlig status för flyktingar eller personer som uppfyller kraven för att betecknas som subsidiärt skyddsbehövande, och för innehållet i det beviljade skyddet artikel 2(f) och 15(c)

= ulkomaalaislaki 88 § 1 mom., 88c §, 88d § ja 147 §; perustuslaki 9 § 4 mom.; Euroopan parlementin ja neuvoston direktiivi 2011/95/EU vaatimuksista kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelemiseksi kansainvälistä suojelua saaviksi henkilöiksi, pakolaisten ja henkilöiden, jotka voivat saada toissijaista suojelua, yhdenmukaiselle asemalle sekä myönnetyn suojan sisällölle artikla 2(f) ja 15(c).

ECHR-3; Article 19 of the Charter of Fundamental Rights of the European Union

Abstract

X, Y and their child, who were all from Uruzgan province in Afghanistan, had applied for international protection in Finland.While the Immigration Service denied both asylum and subsidiary protection, the administrative court found that the applicants were eligible for subsidiary protection because there were substantial grounds for believing that they would face a real risk of being subjected to serious harm as a result of indiscriminate violence in the internal armed conflict which was taking place in their home province.The administrative court referred the case back to the Immigration Service, in order for the Immigration Service to assess whether there was a relocation possibility available for the applicants.The Immigration Service appealed against the decision to the Supreme Administrative Court and claimed, among other things, that the armed conflict in Uruzgan was severe but not exceptional or indiscriminate and the applicants had not managed to show that there was an individual threat to their life or person and that they were specifically targeted by reason of factors particular to their personal circumstances.

The Supreme Administrative Court noted it should first consider whether the degree of indiscriminate violence characterising the armed conflict in Uruzgan province had reached such a high level that the applicants as civilians, returned to the region, would, solely on account of their presence on the territory of the region, face a real risk of being subject to a serious threat to their life or person.If this was not the case, the court should take into account not only the general security situation and its impact on the population in the region in general but also the personal circumstances of the applicants for subsidiary protection.The Supreme Administrative Court based its decision on country information already presented in the case as well as more recent country reports by the UN Office for the Coordination of Humanitarian Affairs (OCHA) and the European Asylum Support Office (EASO).The court also referred to the case law of the European Court of Human Rights (Sufi and Elmi v the United Kingdom, judgment of 28 June 2011; S.H.H. v. the United Kingdom, judgment of 29 January 2013; A.M. v the Netherlands, judgment of 5 July 2016; J.K. et al. v Sweden, judgment of 23 August 2016) and the CJEU (C-465/07 Elgafaji; C-285/12 Diakité).

The Supreme Administrative Court held that, based on country information, presently in the conflict in Afghanistan the level of regional armed incidents at their most intense can at certain times and in certain regions reach such a high level that anyone present in that area is subject to serious and individual threat as a result of indiscriminate violence, as prescribed in the Aliens Act and the Qualification Directive 2011/95/EU.The court noted that the regional conflict in Uruzgan province could not be considered to have reached such a high level in all parts of the province.However, the security situation in the province, and more specifically in the applicants' home district, was unstable to the effect that the personal circumstances of the applicants must be given due weight.Y had told that she had be subjected to threats and ill-treatment because she had been teaching children.X and Y were taking care of a small child.The fact that the applicants were Hazaras was also of relevance, although according to the country information and the case law of the European Court of Human Rights, it could not be concluded that the applicants would be specifically targeted by the Taliban solely on account of their Hazara origin.The court concluded that, taking into account the country information concerning Uruzgan province and the personal circumstances of the applicants, substantial grounds had been shown for believing that the applicants would face a real risk of being subjected to serious harm if returned to their home province Uruzgan in Afghanistan.According to country reports, there was no effective and non-temporary protection available in Uruzgan province.The Supreme Administrative Court did not change the decision of the administrative court.

6.6.2017 / 6.6.2017 / RHANSKI

Date when decision was rendered: 5.5.2017

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 196/4/17 and 446/4/17; 2030

Reference to source

KHO 2017:72.

Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, residence permit, refusal of entry, armed conflict,
utlänningar, uppehållstillstånd, avvisning, väpnad konflikt,
ulkomaalaiset, oleskelulupa, käännyttäminen, aseellinen selkkaus,

Relevant legal provisions

section 88(1)(3) and 147 of the Aliens Act; section 9(4) of the Constitution Act; Article 15(c) of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees for persons eligible for subsidiary protection, and for the content of the protection granted

= utlänningslag 88 § 1 mom. 3 punkten och 147 §; grundlagen 9 § 4 mom.; Europaparlamentets och rådets direktiv 2011/95/EU om normer för när tredjelandsmedborgare eller statslösa personer ska anses berättigade till internationellt skydd, för en enhetlig status för flyktingar eller personer som uppfyller kraven för att betecknas from subsidiärt skyddsbehövande, och för innehållet i det beviljade skyddet artikel 15(c)

= ulkomaalaislaki 88 § 1 mom. 3 kohta ja 147 §; perustuslaki 9 § 4 mom.; Euroopan parlamentin ja neuvoston direktiivi 2011/95/EU vaatimuksista kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelemiseksi kansainvälistä suojelua saaviksi henkilöiksi, pakolaisten ja henkilöiden, jotka voivat saada toissijaista suojelua, yhdenmukaiselle asemalle sekä myönnetyn suojan sisällölle artikla 15(c).

ECHR-3; Article 19 of the Charter of Fundamental Rights of the European Union

Abstract

X, who was originally from Afghanistan, had sought international protection in Finland on grounds that he was at risk of being persecuted by the Taliban because of his Hazara origin.The Immigration Service denied both asylum and protection on subsidiary grounds and decided that X is sent back to Afghanistan.The administrative court found that X was eligible for subsidiary protection, because he could not travel safely from Kabul to his home district.The court referred the case back to the Immigration Service, in order for the Immigration Service to consider whether there was a relocation alternative in Afghanistan available for X.The Immigration Service appealed against the decision to the Supreme Administrative Court.The Immigration Service pointed out that section 88(1)(3) of the Aliens Act specifically refers to serious and individual threat as a result of indiscriminate violence in an armed conflict as requirements for subsidiary protection.It also held that possible threats along the way from Kabul to the proposed safe area can be taken into consideration but this requires an assessment of the applicant's personal circumstances, unless it is concerning an exceptional situation where any civilian is in danger solely on account of his or her presence in that particular area.

The Supreme Administrative Court noted, based on the country information available to the court, that in X's home district, where the Hazara were a majority, the general security situation was peaceful and stable to the extent that there were no substantial grounds for believing that X would face a real risk of being subjected to serious harm there.Therefore, the main issue was whether X had a safe passage from Kabul to his home district and whether this assessment was of relevance when considering the requirements for subsidiary protection.

Section 88 of the Aliens Act does not include any explicit provision concerning the significance of access to safe areas when assessing the requirements for subsidiary protection.However, in accordance with the principle of non-refoulement, as provided for in the EU Charter of Fundamental Rights, the ECHR, the Constitution Act and the Aliens Act, a person cannot be returned to an area where that person could be subject to a violation of the principle of non-refoulement when travelling to that area.The Supreme Administrative Court concluded that subsidiary protection can be granted if it is unsafe for the applicant to travel to the proposed destination in the home country.

Quoting the decision of the CJEU in the Elgafaji case (C-465/07), the Supreme Administrative Court noted that the requirements for subsidiary protection are met when the degree of indiscriminate violence characterising the armed conflict in a specific region has reached such a high level that civilians, returned to the region, would, solely on account of their presence on the territory of the region, face a real risk of being subject to a serious threat to their life or person.If this is not the case, the court, in assessing the conditions for subsidiary protection, must take into account not only the general security situation and its impact on the population in the region in general but also the personal circumstances of the applicant.The more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.When the assessment of the requirements for subsidiary protection is based on the security situation en route, and not on the situation in the applicant's home area, the personal circumstances of the applicant are accentuated.

The Supreme Administrative Court held that, taking into account the country information presented in the case and the case law of the European Court of Human Rights (e.g., A.M. v the Netherlands, judgment of 3 July 2016) it could not be established that X would be specifically targeted by the Taliban solely because of his Hazara origin when travelling from Kabul to his home district.According to country reports, persons, such as the applicant, who have ties to and knowledge of their home area, are generally able to travel in that area without incident.Violent incidents against civilians travelling by road in Afghanistan have been reported and there are security risks also on the roads between Kabul and X's home district.On the other hand, there are several alternative land routes and also the possibility to travel by plane.The Supreme Administrative Court concluded that taking into account the country information and X's personal circumstances there was no reason so suppose that X would face a real risk of being subjected to serious harm when travelling to his home district in Afghanistan.Though the alternative routes may be longer and more difficult to travel, this did not justify a different approach.The Supreme Administrative Court quashed the decision of the administrative court and upheld the decision of the Immigration Service.

9.6.2017 / 9.6.2017 / RHANSKI