Date when decision was rendered: 7.9.1993

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

Reference: Report No. 3229; 1270/7/93

Reference to source

KHO 1993-A-30.

Yearbook of the Supreme Administrative Court 1993 A, General Part

Högsta förvaltningsdomstolens årsbok 1993 A, allmän del

Korkeimman hallinto-oikeuden vuosikirja 1993 A, yleinen osa

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1994

Pages: pp. 99-102

Subject

asylum, death penalty, inhuman treatment or punishment,
asyl, dödsstraff, omänsklig behandling eller bestraffning,
turvapaikka, kuolemanrangaistus, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

Section 6 of the Act on Extraordinary Appeal in Administrative Matters; section 34-1 of the Aliens Act

= lag om extraordinärt ändringssökande i förvaltningsärenden 6 §; utlänningslag 34 § 1 mom.

= laki ylimääräisestä muutoksenhausta hallinto-asioissa 6 §; ulkomaalaislaki 34 § 1 mom.

Abstract

The Supreme Administrative Court granted an extraordinary remedy by annulling a decision by the Ministry of the Interior to deny U asylum.U was an asylum seeker from Bangladesh.After asking the opinion of the chairman of the Asylum Appeals Board, the Ministry had classified the case as apparently unfounded, thereby excluding the possibility of review by the Asylum Appeals Board.The Ministry had issued an order that U was to be expelled to Bangladesh.The Supreme Administrative Court stated that U feared political persecution as a political activist and that he had told he had been threatened with capital punishment.In light of existing information on the situation in Bangladesh, the request for asylum could not be considered clearly fraudulent and did not amount to an abuse of the right to seek asylum.Therefore, the request for asylum was not to be regarded as apparently unfounded according to section 34-1 of the Aliens' Act.The decision by the Ministry of the Interior was based on apparently incorrect application of the law.The decision was annulled and the request for asylum returned to the Ministry of the Interior.

26.3.1998 / 11.4.2007 / RHANSKI

Date when decision was rendered: 20.1.1995

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

Reference: Report No. 179; 5307/7/94

Reference to source

KHO 1995-A-33.

Yearbook of the Supreme Administrative Court 1995 A, General Part

Högsta förvaltningsdomstolens årsbok 1995 A, allmän del

Korkeimman hallinto-oikeuden vuosikirja 1995 A, yleinen osa

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1996

Pages: pp. 145-147

Subject

asylum, respect for family life, refusal of entry, aliens,
asyl, respekt för familjeliv, avvisning, utlänningar,
turvapaikka, perhe-elämän kunnioittaminen, käännyttäminen, ulkomaalaiset,

Relevant legal provisions

Section 39-4 of the Aliens Act

= utlänningslag 39 § 4 mom.

= ulkomaalaislaki 39 § 4 mom.

ECHR-8

Abstract

The applicants, family S, were Russian citizens and had arrived in Finland from Russia.As they had not showed that the grounds in section 20 of the Aliens' Act for granting a residence permit existed, or that the country from which they came would not be safe for them to return to, the Ministry of the Interior rejected the applications for residence permits and asylum and made a decision of refoulement of the family.The decision, which was based on sections 20, 30-1, 31, 32-3, 33, 37-3, 38, 39 and 62-1 of the Aliens' Act, also prohibited the family from returning to Finland within two years of the decision.

S appealed to the Supreme Administrative Court, asking, i.a., that the execution of the refoulement decision be stayed until the Court had considered the case.He stated in his application that also other family members had applied for asylum and that his own application for asylum was under consideration in the Asylum Board.He also referred to the right to respect for family life guaranteed in Article 8 of the ECHR.

In its decision, the Supreme Administrative Court concluded that according to section 39-4 of the Aliens' Act, a decision on refoulement cannot be made before a legal decision on an application for asylum has been reached.Taking into account Article 8 of the ECHR, a decision on asylum cannot be made before an application for asylum of another family member has been legally decided.

The Supreme Administrative Court therefore quashed the Ministry's decision as to the refoulement and the prohibition of return to the country and returned the case to the Ministry for renewed consideration.

14.4.1998 / 2.3.2017 / RHANSKI

Date when decision was rendered: 22.2.2000

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

Reference: Report No. 352; 729/3/99

Reference to source

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

asylum, respect for private life, respect for family life, inhuman treatment or punishment,
asyl, respekt för privatliv, respekt för familjeliv, omänsklig behandling eller bestraffning,
turvapaikka, yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, epäinhimillinen kohtelu tai rangaistus,

Relevant legal provisions

sections 30, 31 and 38 of the Aliens Act

= utlänningslag 30 §, 31 §, 38 §

= ulkomaalaislaki 30 §, 31 §, 38 §.

ECHR-8

Abstract

A had applied for asylum in Finland.During the investigations relating to the application for asylum A had told about his political activities and their consequences in a very general and unspecified manner.A's application was rejected.A appealed against the decision to the Supreme Administrative Court which rejected the appeal.However, when discussing the reasons for its decision, the Court noted that while the asylum application was pending, A had several times received hospital treatment in Finland because of mental problems.Therefore, the Court asked the Directorate of Immigration, when making a decision on deportation, to take into account the condition of A's health, the prohibition of inhuman treatment, Article 8 of the ECHR as well as the possible effect of A's mental problems to the statements made during the investigations in connection with the asylum application.

28.10.2002 / 11.4.2007 / RHANSKI

Date when decision was rendered: 31.10.2002

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

Reference: Report No. 2770; 1866/3/02

Reference to source

KHO 2002:69.

Yearbook of the Supreme Administrative Court 2002 July-December

Högsta förvaltningsdomstolens årsbok 2002 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2002 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2005

Pages: pp. 342-352

Subject

aliens, refugee status, asylum,
utlänningar, flyktingstatus, asyl,
ulkomaalaiset, pakolaisen oikeusasema, turvapaikka,

Relevant legal provisions

sections 20, 30, 31, 37, 38 and 43 of the Aliens Act

= utlänningslag 20 §, 30 §, 31 §, 37 §, 38 §, 43 §

= ulkomaalaislaki 20 §, 30 §, 31 §, 37 §, 38 §, 43 §.

Article 1-D of the Convention relating to the Status of Refugees

Abstract

A was a stateless Palestinian refugee registered in a UNRWA refugee camp in Lebanon.A had applied for asylum and a residence permit in Finland, but the Directorate of Immigration had rejected the application and had ordered that A should be deported to Lebanon.A appealed against the decision to the administrative court and further to the Supreme Administrative Court.Both courts dismissed the appeal.

In its decision, the Supreme Administrative Court referred to Article 1-D of the Convention relating to the Status of Refugees, according to which the Convention does not apply to persons who receive protection or assistance from UN organs or agencies other than the UNHCR.However, when such protection or assistance has ceased for any reason, the person shall ipso facto be entitled to the benefits of the Convention.In assessing the applicability of Article 1-D in A's case, the court referred to statements and interpretation guidelines issued by the UNHCR.In the court's opinion, A had not managed to show that his/her safety and indispensable subsistence would be endangered in Lebanon.When returning to Lebanon, A still had the possibility of receiving assistance from the UNRWA.The court concluded that A was not entitled to the benefits of the Refugee Convention.The Supreme Administrative Court then considered the case on the basis of the Aliens Act.It ruled that A could not be granted asylum and issued a residence permit on the basis of fear of persecution or need of protection as prescribed in sections 30 and 31 of the Aliens Act.Moreover, considering all the circumstances in the case, it could not be concluded that refusing a residence permit would be clearly unreasonable, as prescribed in section 20 of the Aliens Act.The Supreme Court dismissed A's appeal.

6.8.2003 / 11.4.2007 / RHANSKI

Date when decision was rendered: 30.10.2003

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

Reference: Report No. 2640; 1146/3/02

Reference to source

KHO 2003:73.

Yearbook of the Supreme Administrative Court 2003 July-December

Högsta förvaltningsdomstolens årsbok 2003 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2003 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2007

Pages: pp. 287-291

Subject

aliens, children, asylum, refusal of entry,
utlänningar, barn, asyl, avvisning,
ulkomaalaiset, lapset, turvapaikka, käännyttäminen,

Relevant legal provisions

Sections 1c, 37, 38 and 39 of the Aliens Act

= utlänningslag 1c §, 37 §, 38 §, 39 §

= ulkomaalaislaki 1c §, 37 §, 38 §, 39 §.

CRC-3, CRC-7

Abstract

The administrative court had rejected the applications for asylum and residence permit made by spouses A and B and their child C.The Directorate of Immigration had made a decision to deport the family to their home country.The family appealed to the Supreme Administrative Court.They claimed that in their home country they would face the risk of being persecuted on account of their nationality.In addition, the child C had been born in Finland and when the appeal was submitted, B was pregnant.The second child was born in Finland after the decision on deportation had been made.While the case was pending, the deportation was carried out.The family's counsel claimed that this was against the law, as the decision on deportation did not concern all members of the family.The Supreme Administrative Court did not grant leave to appeal as far as the applications for asylum and residence permit were concerned.However, it decided to consider the appeal against the decision on deportation.The Court noted that when making the decision on deportation, the Directorate of Immigration could not take into consideration the child who had not yet been born at that time.No separate application for asylum or residence permit had been submitted on behalf of the child.According to the Court, the position of a child who is born after a decision to deport the child's parents has been made has as such no effect when considering whether the parents are in need of asylum or international protection.It can be assumed that a newborn child travels together with his or her parents.If necessary, the police may provide the child with a separate travel document.The Supreme Administrative Court concluded that it was possible to carry out the deportation of the family after the applications for asylum and residence permit had been rejected.Taking into account the valid travel documents of the family, it was also possible to deport the newborn child who travelled with his/her family.The deportation was thus not in violation of the Aliens Act or the Convention on the Rights of the Child.

15.1.2004 / 2.3.2017 / RHANSKI

Date when decision was rendered: 4.3.2003

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

Reference: Report No. 467; 1996/3/02

Reference to source

KHO 2003:8.

Yearbook of the Supreme Administrative Court 2003 January-June

Högsta förvaltningsdomstolens årsbok 2003 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2003 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2005

Pages: pp. 61-73

Subject

respect for family life, asylum, deported persons, deportation,
respekt för familjeliv, asyl, deporterade personer, utvisning,
perhe-elämän kunnioittaminen, turvapaikka, karkotetut henkilöt, karkottaminen,

Relevant legal provisions

Sections 20, 30, 31, 37, 38 and 43 of the Aliens Act; section 10 of the Constitution Act

= utlänningslag 20 §, 30 §, 31 §, 37 §, 38 § och 43 §; grundlagen 10 §

= ulkomaalaislaki 20 §, 30 §, 31 §, 37 §, 38 § ja 43 §; perustuslaki 10 §.

ECHR-8

Abstract

The Directorate of Immigration had rejected A's application for asylum and residence permit.A was to be deported to his home country and he was also refused entry to Finland for two years.Both the administrative court and the Supreme Administrative Court rejected A's appeal.

In his appeal to the Supreme Administrative Court, A referred to Article 8 of the ECHR.At the reception centre for asylum seekers A had met another asylum seeker, B, and had lived together with her for nine months.B was then deported to her home country and was refused entry to Finland for two years.After two years she returned to Finland for a few days with a tourist visa.She applied for asylum in Finland again and told then that she was pregnant.A claimed that under the circumstances his deportation would infringe with his right to private and family life as prescribed in the Constitution Act and in the ECHR.

The Supreme Administrative Court found that the definition of a "family tie" under Article 8 of the ECHR did not include a situation in which a couple lives together in a reception centre for asylum seekers, after having previously lived together for a short period of time and having thereafter been separated for over two years.The Aliens Act or the ECHR do not grant an asylum seeker who has no residence permit and no other ties to Finland the right to choose Finland as a place of residence for himself/herself or his/her family.The Court concluded that A's deportation was not in violation of Article 8 of the ECHR.

See also N. v.Finland (Application no. 38885/02), judgment of the European Court of Human Rights, 26 July 2005.

16.4.2004 / 2.3.2017 / RHANSKI

Date when decision was rendered: 14.10.2009

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

Reference: Report no. 2506; 3146/1/08

Reference to source

KHO 2009:87.

Yearbook of the Supreme Administrative Court 2009 July-December

Högsta förvaltningsdomstolens årsbok 2009 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2009 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 588-598

Subject

asylum, freedom of religion, aliens,
asyl, religionsfrihet, utlänningar,
turvapaikka, uskonnonvapaus, ulkomaalaiset,

Relevant legal provisions

sections 87, 88, 88a and 88b of the Aliens Act; section 11 of the Constitution Act

= utlänningslag 87 §, 88 §, 88a § och 88b §; grundlagen 11 §

= ulkomaalaislaki 87 §, 88 §, 88a § ja 88b §; perustuslaki 11 §.

General reference to freedom of religion as prescribed in international human rights conventions binding on Finland.

Abstract

X, who was a Sunni Muslim and a Kurd, had sought asylum and residence permit in Finland.The Immigration Service rejected X's application and decided he is to be returned to his home country Iran.The administrative court rejected X's appeal.In his appeal to the Supreme Administrative Court, X told that after the administrative court had given its decision, X had renounced Islam and had been baptized and had adopted the Christian faith.The Supreme Administrative Court granted X leave to appeal and ordered a stay of enforcement of the decision to remove X from the country.In its decision, the Supreme Administrative Court considered freedom of religion and the right to change one's religion or convictions, the implementation of Council Directive 2004/83/EC on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees, and the UNHCR guidelines on religion-based refugee claims (2004).The Court noted that the circumstances had changed as far as X's religious convictions were concerned.In the Court's view, it could not be excluded that renouncing Islam and converting to Christianity would cause a risk of persecution and inhuman treatment in Iran.Moreover, the recently adopted Penal Code in Iran made renouncing Islam a punishable offence.The Supreme Administrative Court revoked the decisions of the Immigration Service and the administrative court.It referred the case back to the administrative court and ordered the court to hold an oran hearing in which the circumstances and genuineness of X's conversion are examined.

24.11.2009 / 21.10.2010 / RHANSKI

Date when decision was rendered: 22.6.2015

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

Reference: Report no. 1743; 3727/1/13

Reference to source

KHO 2015:100.

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, inhuman treatment or punishment, best interests of the child,
utlänningar, asyl, avvisning, omänsklig behandling eller bestraffning, barnets bästa,
ulkomaalaiset, turvapaikka, käännyttäminen, epäinhimillinen kohtelu tai rangaistus, lapsen etu,

Relevant legal provisions

section 147 of the Aliens Act; section 9-4 of the Constitution Act; Council Regulation 343/2003/EC establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II Regulation).

= utlänningslag 147 §; grundlagen 9 § 4 mom.; Rådets förordning 343/2003/EG om kriterier och mekanismer för att avgöra vilken medlemsstat som har ansvaret för att pröva en asylansökan som en medborgare i tredje land har gett in i någon medlemsstat (Dublin II -förordningen).

= ulkomaalaislaki 147 §; perustuslaki 9 § 4 mom.; Neuvoston asetus 343/2003/EY niiden perusteiden ja menettelyjen vahvistamisesta, joiden mukaisesti määritellään kolmannen maan kansalaisen johonkin jäsenvaltioon jättämän turvapaikkahakemuksen käsittelystä vastuussa oleva jäsenvaltio (Dublin II -asetus).

ECHR-3; Articles 4, 18 and 19-2 of the Charter of Fundamental Rights of the European Union

Abstract

A and her child B had applied for asylum in Finland.A was a Nigerian citizen and had arrived in Italy in 2005.B had been born in Italy in 2012.Since 2012 both A and B had a long-term residence permit for third-country nationals in Italy.A claimed that the reception conditions for asylum seekers in Italy did not correspond to the EU minimum standards.She referred to economic problems and felt she and her child had no future in Italy.She also claimed she had been a victim of human trafficking in Morocco before coming to Italy.The Finnish Immigration Service rejected the asylum application and decided that A and B are transferred back to Italy.According to the Dublin II Regulation, Italy was the country responsible for examining the application.The Supreme Administrative Court assessed the question whether Finland should assume the examination of the application by applying the derogation in Article 3(2) of the Dublin II Regulation.The court also examined whether the applicant's deportation to Italy was against the principle of non-refoulement as prescribed in Article 3 of the ECHR, Article 4 of the EU Charter of Fundamental Rights and section 147 of the Aliens Act, taking also into account the best interests of the child.

With reference to a UNHCR report on refugee protection in Italy (2013), among other sources, the Supreme Administrative Court found that there were no systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum applicants in Italy which would provide substantial grounds for believing that the applicant would face a real risk of being subjected to inhuman or degrading treatment, within the meaning of Article 4 of the EU Charter of Fundamental Rights.In the court's view, this finding was supported by the decision of the European Court of Human Rights in the case of Tarakhel v.Switzerland (judgment of 4 November 2014, Reports of Judgments and Decisions 2014) in which the human rights court found that the reception arrangements in Italy cannot in themselves act as a bar to all removals of asylum seekers to Italy, despite doubts as to the capacity of the system.Furthermore, the EU Commission had not initiated proceedings against Italy for failure to fulfill its obligations under the relevant EU directives on minimum standards (2003/9/EC, 2004/83/EC and 2005/85/EC).The Supreme Administrative Court concluded that there were no grounds pertaining to the asylum procedure and the conditions for the reception of asylum applicants in Italy that would prevent it that A and B are returned to Italy.

Regarding the applicant's individual circumstances, the court noted that both the mother and the child were in good health and the child had been duly cared for.The alleged human trafficking had taken place in Morocco several years before A's arrival in Italy.Both A and B had long-term residence permits in Italy by which they were guaranteed more extensive fundamental rights as compared to the rights of asylum seekers.Their situation was thus not comparable to that of asylum seekers entering the EU for the first time.The court concluded that there was nothing to indicate that because of the applicant's individual circumstances, transferring A and B back to Italy would mean they would be likely to be subjected to inhuman or degrading treatment or the risk thereof, or that their deportation would be against the best interests of the child.The court concluded that in this case Article 3 of the ECHR or section 147 of the Aliens Act did not prevent deportation and that there were no grounds to apply the derogation prescribed in section 3(2) of the Dublin II Regulation.

11.12.2015 / 26.10.2017 / RHANSKI

Date when decision was rendered: 26.2.2015

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

Reference: Report no. 537; 2844/3/13

Reference to source

KHO 2015:26.

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, family reunification, best interests of the child,
utlänningar, asyl, familjeåterförening, barnets bästa,
ulkomaalaiset, turvapaikka, perheen yhdistäminen, lapsen etu,

Relevant legal provisions

sections 6-3, 38 and 69a of the Aliens Act

= utlänningslag 6 § 3 mom., 38 § och 69a §

= ulkomaalaislaki 6 § 3 mom., 38 § ja 69a §.

ECHR-8; CRC-3-1: CRC-7-1: CRC-10

Abstract

X had arrived in Finland as an unaccompanied minor asylum seeker and had been issued with a residence permit on the basis of subsidiary protection in December 2010.In June 2011, X had submitted applications for a residence permit on the basis of family ties on behalf of his father, mother and two siblings.While the applications were pending, X turned 18 and reached the age of majority in February 2012.According to section 38-1 of the Aliens Act, issuing a residence permit to a family member of a minor sponsor requires that the sponsor is a minor on the date when the family member's residence permit application is decided.Also, according to the Aliens Act, a decision on an application for a residence permit made on the basis of family ties must as a rule be served on the applicant no later than nine months after the filing of the application (section 69a).Matters concerning minors shall be processed with urgency (section 6-3).The Finnish Immigration Service rejected the applications in July 2012, some 13 months after the applications had been filed.It pointed out that X had turned 18 in less than nine months after the applications had been filed.By the time the decision was taken, X was no longer a minor and his parents could not be regarded as family members as prescribed in the Aliens Act.X appealed to the administrative court which upheld the decision of the Immigration Service.The court found that, because of the time needed for interviews and other clarifications required in the process, the decision could in any case not have been made before X turned 18.X appealed further to the Supreme Administrative Court which noted that section 38-1 of the Aliens Act cannot be applied in the way that it had been applied in this case by the Immigration Service.Namely, according to section 38-2, a residence permit cannot be denied if the processing of the application has been significantly delayed for reasons beyond the applicant's control and the applicant or the sponsor have contributed to the investigation of the matter.In this case, the Immigration Service had denied residence permits on the grounds that the sponsor was no longer a minor, without taking into account section 38-2 and without assessing the reasons why the processing of the applications had been delayed.The Supreme Administrative Court quashed the decisions of the Immigration Service and the administative court and returned the matter to the Immigration Service.

10.2.2016 / 10.2.2016 / RHANSKI

Date when decision was rendered: 4.2.2013

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

Reference: Report no. 414; 139/1/11

Reference to source

KHO 2013:23.

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, residence permit, refusal of entry, children, best interests of the child,
utlänningar, asyl, uppehållstillstånd, avvisning, barn, barnets bästa,
ulkomaalaiset, turvapaikka, oleskelulupa, käännyttäminen, lapset, lapsen etu,

Relevant legal provisions

sections 6-1, 52-1, 87-1, 88-1 and 88a-1 of the Aliens Act

= utlänningslag 6 § 1 mom., 52 § 1 mom., 87 § 1 mom., 88 § 1 mom. och 88a § 1 mom.

= ulkomaalaislaki 6 § 1 mom., 52 § 1 mom., 87 § 1 mom., 88 § 1 mom. ja 88a § 1 mom.

ECHR-3; CRC

Abstract

A had applied for a residence permit in Finland for herself and her three minor children on the basis of humanitarian protection.A was a Somali citizen and allegedly came from Mogadishu.As grounds for her application she referred to the poor security situation in Somalia and to various violations of her rights that had taken place in Mogadishu.The Finnish Immigration Service found that A had not presented any evidence to show that she would face a real risk of being subjected to persecution or serious harm in her home country.The Immigration Service was not convinced by A's account of the alleged violations and of her place of origin.The results of a language analysis showed that A clearly came from northern Somalia (Somaliland), not southern Somalia.The Immigration Service dismissed A's application and refused her entry into the country.The administrative court upheld the decision.

In her appeal to the Supreme Administrative Court, A, among other things, questioned the reliability of the language analysis.The Supreme Administrative Court noted there was no credible proof as to A's place of origin and therefore there were good grounds for carrying out the language analysis.The results of the language analysis were reliable but did not prove A's place of origin with full certainty.Therefore, in addition to the language analysis, other evidence had to be taken into account.Based on the evidence presented in the case, the court noted that A's knowledge of her alleged place of origin, Mogadishu, was very weak.Her account of the places where she had lived was contradictory.The court found there were sufficient grounds to conclude that A was not from Mogadishu but from Somaliland.The Supreme Administrative Court did not find it plausible that A would have had substantial grounds for believing that she would be persecuted in her home country.The court admitted that there were deficiences in the protection of human rights in Somaliland, but the situation in Somaliland was reported as stable.Access to services providing for basic needs of children was limited.However, basic health care and education were available.The Somaliland government had made a commitment of the CRC and had made an effort to align its laws and policies to the international standards established in the CRC.The Supreme Administrative Court also noted that A was not a single parent: she had her husband and four other children in Somalia.In the court's opinion no grounds had been shown for believing that A and her three children would face a risk of being subjected to inhuman treatment in their home country.A's and her children's health, their ties to Finland or the best interests of the children did not in this case require that A and the children are issued a residence permit on compassionate grounds.The court concluded that A and her children were not in need of international protection and could be refused entry into Finland.

18.2.2016 / 2.3.2017 / RHANSKI

Date when decision was rendered: 26.5.2016

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

Reference: Report no. 3186/1/14; 2339

Reference to source

KHO 2016:81.

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, inhuman treatment or punishment, freedom of religion, muslims, refusal of entry,
utlänningar, asyl, omänsklig behandling eller bestraffning, religionsfrihet, muslimer, avvisning,
ulkomaalaiset, turvapaikka, epäinhimillinen kohtelu tai rangaistus, uskonnonvapaus, muslimit, käännyttäminen,

Relevant legal provisions

sections 87, 88, 88a and 88b of the Aliens Act

= utlänningslag 87 §, 88 §, 88a § och 88b §

= ulkomaalaislaki 87 §, 88 §, 88a § ja 88b §.

ECHR-2, ECHR-3

Abstract

The Immigration Service had rejected X's application for asylum in Finland and had ordered that X is deported to his home country Iran.In his original asylum application X had not invoked his religious affiliation as a ground for asylum, but had mainly referred to matters pertaining to his next of kin.However, in his appeal to the administrative court, X told he had abandoned Islam.The administrative court rejected X's request for an oral hearing and upheld the decision of the Immigration Service.The court found it unlikely that X's abandonment of Islam would have come to the knowledge of the Iranian authorities or that the authorities would be particularly interested in him after his return to Iran.In the court's view, X was not in need for international protection.In his appeal to the Supreme Administrative Court X further told that he had converted to Christianity.

The Supreme Administrative Court referred to the Grand Chamber judgment of the European Court of Human Rights in the case of F.G. v Sweden (23 March 2016), which concerned the refusal of asylum to an Iranian national converted to Christianity as well as the duty of national authorities to assess the applicant's conversion, the seriousness of his beliefs and the way he manifested his Christian faith.The Supreme Administrative Court also noted that the human rights court had used, among other sources, the country of origin report on Iran by the UK Home Office from September 2013, particularly concerning apostasy.

The Supreme Administrative Court pointed out that although X had not told the administrative court about his conversion to Christianity, he had told he had abandoned Islam.According to current country information on Iran, apostasy from Islam may result in persecution, inhuman treatment or even the death penalty.Therefore, the possibility cannot be excluded that apostasy from Islam could cause a need for international protection as prescribed in the Aliens Act.The Supreme Administrative Court concluded that the administrative court should not have decided the case without a thorough assessment of the facts pertaining to X's apostasy and the general situation in Iran.It quashed the decisions of the Immigration Service and the administrative court and returned the case to the Immigration Service for a new consideration, in which the Immigration Service should take into account the new circumstances and the new evidence presented in the case.

6.6.2016 / 2.3.2017 / RHANSKI

Date when decision was rendered: 27.12.2011

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

Reference: Report no. 3738; 2486/1/11

Reference to source

KHO 2011:114.

Yearbook of the Supreme Administrative Court 2011 July-December

Högsta förvaltningsdomstolens årsbok 2011 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2011 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2012

Pages: 654-660

Subject

aliens, asylum, inhuman treatment or punishment, freedom of religion, refusal of entry, oral hearing,
utlänningar, asyl, omänsklig behandling eller bestraffning, religionsfrihet, avvisning, muntligt förfarande,
ulkomaalaiset, turvapaikka, epäinhimillinen kohtelu tai rangaistus, uskonnonvapaus, käännyttäminen, suullinen menettely,

Relevant legal provisions

sections 87, 88, 88a and 88b of the Aliens Act; section 38 of the Administrative Procedure Act; section 11 of the Constitution Act; articles 4-3-d and 5 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 87 §, 88 §, 88a § och 88b §; förvaltningsprocesslag 38 §; grundlagen 11 §; Europaparlamentets och rådets direktiv 2011/95/EU om normer for 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 4-3-d och artikel 5

= ulkomaalaislaki 87 §, 88 §, 88a § ja 88b §; hallintolainkäyttölaki 38 §; perustuslaki 11 §; 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 suojelun sisällölle artikla 4 kohta 3 alakohta d ja artikla 5

Abstract

X and his spouse Y had applied for asylum in Finland but the Immigration Service had rejected their applications and had ordered that they are deported to their home country Iran.In his asylum application X had told that the family had to leave Iran because X had been arrested after he had become interested in Christianity.After arriving in Finland X and Y had converted to Jehova's Witnesses and had, together with their child, been active members of the congregation.

X and Y appealed against the decision of the Immigration Service to the administrative court.They also requested for an oral hearing but the court rejected the request.Based on country reports on Iran the administrative court acknowledged that religious minorities in Iran were at risk of persecution and that apostates could under Islamic law face the death penalty.However, the court was not fully convinced that X and Y had firm religious convictions as Jehova's Witnesses.In their home country, X and Y had been Muslims, not Christians.They had not been socially, politically or religiously active.In the asylum interview X had told he had found it hard to abandon Islam because none of the Christian denominations were appealing to him.Y for her part had told she was not willing or ready to abandon Islam.The administrative court also found it unlikely that the Iranian authorities would be aware of X's and Y's conversion.In the court's view there were no sufficient grounds to assume that after having returned to Iran, X and Y would have to suppress their identity to the effect that their life would for that reason become intolerable.The administrative court upheld the decision of the Immigration Service.X and Y appealed further to the Supreme Administrative Court.

The Supreme Administrative Court noted that freedom of religion entails the right to change one's religion or convictions.It pointed out that religious conversion of an asylum-seeker after having left the country of origin may raise questions as to the real purpose of the conversion and the credibility of the person's religious convictions.It must be assessed whether the sole and main purpose of the activities since leaving the country of origin has been to practise a new religion and to express one's freedom of religion and own convictions or whether the purpose has been to create the necessary conditions for applying for international protection.The implications of those activities, if the applicants are returned to the country of origin, must also be evaluated.The Supreme Administrative Court held that the administrative court could not have dismissed the appeal on the grounds as stated in its decision, but should have conducted an oral hearing in which it would have been possible to obtain more specific information about the circumstances of the applicants' conversion, the credibility of their religious convictions, the ways in which X and Y would practise their religion in their home country and the risks they would possibly encounter when practising their religion upon returning to Iran.The Supreme Administrative Court quashed the decision of the administrative court and returned the case to the lower court for an oral hearing and a new consideration.

7.6.2016 / 29.5.2017 / RHANSKI

Date when decision was rendered: 8.9.2015

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

Reference: Report no. 2365; 4028/1/14

Reference to source

KHO 2015:130.

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 justitiministeriet

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

Date of publication:

Subject

aliens, asylum, residence permit, refusal of entry,
utlänningar, asyl, uppehållstillstånd, avvisning,
ulkomaalaiset, turvapaikka, oleskelulupa, käännyttäminen,

Relevant legal provisions

sections 87-1, 103-1 and 147 of the Aliens Act; Articles 3 and 9 of Council Regulation 343/2003/EC establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II Regulation)

= utlänningslag 87 § 1 mom., 103 § 1 mom. och 147 §; Rådets förordning 343/2003/EG om kriterier och mekanismer för att avgöra vilken medlemsstat som har ansvaret för att pröva en asylansökan som en medborgare i tredje land har gett in i någon medlemsstat (Dublin II-förordningen) artikel 3 och artikel 9

= ulkomaalaislaki 87 § 1 mom., 103 § 1 mom. ja 147 §; Neuvoston asetus 343/2003/EY niiden perusteiden ja menettelyjen vahvistamisesta, joiden mukaisesti määritellään kolmannen maan kansalaisen johonkin jäsenvaltioon jättämän turvapaikkahakemuksen käsittelystä vastuussa oleva jäsenvaltio (Dublin II-asetus) 3 artikla ja 9 artikla.

Article 1 of the Convention relating to the Status of Refugees

Abstract

X was originally from Egypt but had lived in Italy since 1998 and had a permanent residence permit in that country.X applied for asylum in Finland, on the grounds that her life and the lives of her children had been threatened in Italy and the Italian authorities could not provide them with protection.The Finnish Immigration Service dismissed the application on the grounds that according to the Dublin II Regulation, Italy was responsible for examining the asylum application.The Immigration Service also decided that X is returned to Italy.

On X's appeal, the administrative court ruled that the procedure based on Dublin II Regulation was not applicable in this case.The question whether X was in need for international protection because of the alleged threats against X which had taken place in Italy, could not be assessed in an asylum procedure in that same country.

The Supreme Administrative Court agreed with the lower court.It noted that according to international law, a person in need of protection should primarily seek protection in his or her country of nationality.Consequently, it is not required that the person has been persecuted in his or her country of nationality specifically; persecution in another country may also constitute a ground for international protection.According to the Aliens Act, aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of persecution and are, because of that fear, unwilling to avail themselves of the protection of that country.With reference to the Government Bill on the amendment of the Aliens Act (HE 28/2003) the court noted that the provision in the Aliens Act is based on the definition of refugee as provided for in the Convention relating to the Status of Refugees and that the concept of "country of permanent residence" only applies to stateless persons.The court then noted that the Dublin II Regulation applies to applications for asylum in relation to persecution in the applicant's country of nationality or, in case of a stateless person, country of habitual residence.The Regulation was thus not applicable in X's case, and the country responsible for examining X's asylum application could not be determined on the basis of the Regulation.The court ruled that X's asylum application could not be examined in Italy because it was based on alleged violations of rights encountered in that same country.The Immigration Service could thus not dismiss the application on the grounds that it could be examined in Italy.The Supreme Administrative Court also ruled that the possibility to seek protection in the country of nationality, Egypt, is taken into account when assessing whether Finland has a duty to provide X and her children with protection and whether they can be returned to Egypt in case they are not issued with residence permits in Finland.The case was referred back to the Immigration Service for a new consideration.

16.6.2016 / 2.3.2017 / RHANSKI

Date when decision was rendered: 7.3.2012

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

Reference: Report no. 484; 2241/1/10

Reference to source

KHO 2012:18.

Yearbook of the Supreme Administrative Court 2012 January-June

Högsta förvaltningsdomstolens årsbok 2012 tammi-kesäkuu

Korkeimman hallinto-oikeuden vuosikirja 2012 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2012

Pages: 245-260

Subject

aliens, asylum, residence permit, refusal of entry,
utlänningar, asyl, uppehållstillstånd, avvisning,
ulkomaalaiset, turvapaikka, oleskelulupa, käännyttäminen,

Relevant legal provisions

sections 99, 101-3, 103-1 and 104-1 of the Aliens Act; section 90-4 of the Constitution Act; Articles 25-1 and 25-2 of Council directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status; Articles 3-2 and 17-1 of Council Regulation 343/2003/EC establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II Regulation)

= utlänningslag 99 §, 101 § 3 mom., 103 § 1 mom. och 104 § 1 mom.; grundlagen 9 § 4 mom.; Rådets direktiv 2005/85/EG om miniminormer för medlemsstaternas förfarande för beviljande eller återkallande av flyktingstatus artikel 25-1 och 25-2; Rådets förordning 343/2003/EG om kriterier och mekanismer för att avgöra vilken medlemsstat som har ansvaret för att pröva en asylansökan som en medborgare i tredje land har gett in i någon medlemsstat (Dublin II -förordningen) artikel 3-2 och artikel 17-1

= ulkomaalaislaki 99 §, 101 § 3 mom., 103 § 1 mom. ja 104 § 1 mom.; perustuslaki 9 § 4 mom.; pakolaisaseman myöntämistä tai poistamista koskevissa menettelyissä jäsenvaltiossa sovellettavista vähimmäisvaatimuksista annettu neuvoston direktiivi 2005/85/EY 25 artikla 1 ja 2 kohta; Neuvoston asetus 343/2003/EY niiden perusteiden ja menettelyjen vahvistamisesta, joiden mukaisesti määritellään kolmannen maan kansalaisen johonkin jäsenvaltioon jättämän turvapaikkahakemuksen käsittelystä vastuussa oleva jäsenvaltio (Dublin II -asetus) 3 artikla 2 kohta ja 17 artikla 1 kohta.

ECHR-3; ECHR-13; Articles 2, 18 and 19 of the EU Charter of Fundamental Rights

Abstract

X was originally from Russia but had resided in Lithuania since 1999.His application for asylum in Lithuania was pending on appeal.X had also been charged in a criminal trial in Lithuania.The Supreme Court in Lithuania had quashed the decision in the criminal case and had referred the matter back to the district court.X applied for asylum in Finland, both in relation to Russia and in relation to Lithuania.As grounds for his application he referred to alleged violations of his rights by the Lithuanian authorities, in particular the right to a fair trial.The Finnish Immigration Service rejected the application and decided to turn X back to Lithuania, because Lithuania could be regarded as a safe country for asylum-seekers.For the same reason, it did not examine X's asylum application in relation to Russia.As far as the alleged violations by the Lithuanian authorities were concerned, the Immigration Service held X should rely on local legal remedies, and the European Court of Human Rights, if necessary.

X appealed agains the decision to the administrative court.The court found that the question whether X was in need of international protection because of the alleged violations of his rights in Lithuania, could not be assessed in an asylum procedure in Lithuania.Therefore, the Immigration Service could not reject X's application in relation to what had happened in Lithuania on the grounds that Lithuania was deemed a safe asylum country.The administrative court referred the matter back to the Immigration Service for a new consideration.The Immigration Service took the matter to the Supreme Administrative Court which agreed with the administrative court.In the court's view, the fact that Lithuania could be regarded as a safe country was not decisive in this case.X's asylum application could not be examined in Lithuania insofar as that application was based on alleged violations of rights which had taken place in that same country.In its decision, the Supreme Administrative Court also referred to the case law of the European Court of Human Rights, namely the case of M.S.S. v Belgium and Greece (judgment of 21 January 2011, Reports of Judgments and Decisions 2011) and T.I. v the United Kingdom (decision of 7 March 2000, Reports of Judgments and Decisions 2000-III).

16.6.2016 / 2.3.2017 / RHANSKI

Date when decision was rendered: 20.4.2016

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

Reference: Report no. 1503; 1581/1/15

Reference to source

KHO 2016:53.

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, inhuman treatment or punishment, refusal of entry,
utlänningar, asyl, omänsklig behandling eller bestraffning, avvisning,
ulkomaalaiset, turvapaikka, epäinhimillinen kohtelu tai rangaistus, käännyttäminen,

Relevant legal provisions

section 147 of the Aliens Act; section 9-4 of the Constitution Act; Articles 3-1, 3-2, 3-3 and 17-1 of Regulation (EU) No. 604/2013 of the European Parliament and of the Council establishing criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Dublin III)

= utlänningslag 147 §; grundlagen 9 § 4 mom.; Europaparlamentets och rådets förordning (EU) nr 604/2013 om kriterier och mekanismer för att avgora vilken medlemsstat som är anvarig för att pröva en ansökan om internationellt skydd som en tredjelandsmedborgare eller en statslös person har lämnat in i någon medlemsstat artikel 3 1-3 punkten och artikel 17 1 punkten

= ulkomaalaislaki 147 §; perustuslaki 9 § 4 mom.; Euroopan parlamentin ja neuvoston asetus (EU) no. 604/2013 kolmannen maan kansalaisen tai kansalaisuudettoman henkilön johonkin jäsenvaltioon jättämän kansainvälistä suojelua koskevan hakemuksen käsittelystä vastuussa olevan jäsenvaltion näärittämisperusteiden ja -menettelyjen vahvistamisesta (Dublin III) 3 artikla 1-3 konta ja 17 artikla 1 kohta.

ECHR-3; Articles 4, 18 and 19 of the EU Charter of Fundamental Rights

Abstract

X was from Afghanistan and had applied for residence permit in Finland.He had previously been registered as an asylum-seeker in Hungary.The main issue in this case was whether the principle of non-refoulement, as prescribed in the Aliens Act and in internatonal human rights law, prevented X's transfer to Hungary, which under Regulation 604/2013 (Dublin III) was primarily responsible for examining X's application for intetnational protection and which had agreed to the transfer.

The Supreme Administrative Court noted that the Common European Asylum System in based on the assumption that EU member states respect EU law and fundamental rights and that they are thus safe countries for asylum-seekers.As a rule the transfer to the member state responsible must be made.However, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions in that state, resulting in a risk of inhuman or degrading treatment, the transfer cannot be made.Furthermore, under Regulation 604/2013 a member state may, in exceptional cases, decide to examine an application for international protection even if such examination is not its responsibility.The state can then take into consideration the individual circumstances of the case as well as the principle of non-refoulement.

The Supreme Administrative Court based its decision in the present case largely on recent national case law in other EU member states, concerning transfers to Hungary under Regulation 604/2013.It also relied on recent country information, and studied the Hungarian asylum legislation, as amended in 2015.The court concluded that particularly vulnerable persons cannot be transferred to Hungary, due to problems in reception conditions for asylum-seekers in that country.Admittedly, X was a healthy young man and not in a particularly vulnerable position and there was thus no apparent risk of inhuman or degrading treatment.However, there was a risk that X is returned first to Serbia, which Hungary in its national legislation had classified as a safe third country, and further to Afghanistan, without the possibility of having his asylum application examined on the merits in any country.X could lodge an appeal against a negative decision of the Hungarian asylum authorities with a Hungarian court and eventually take the case to the European Court of Human Rights.However, it was not certain whether this was an effective remedy, because of the large number of asylum applications, the difficulties in arranging appropriate legal assistance and interpretation services, and other problems reportedly encountered by asylum-seekers in Hungary.

In the opinion of the Supreme Administrative Court, the relevant case law and other documentation considered by the court provided strong grounds for believing that there were systemic flaws in the asylum procedure in Hungary.The court referred to the principle of a human rights-friendly interpretation of the law and also relied on the principle of benefit of the doubt, which in the court's view is significant in the evaluation of proof under refugee law.It ruled that in uncertain cases the decision must be made in favour of the applicant.The court held that considering current country information it could not be reliably ascertained at present that X's transfer to Hungary would not be in violation of the right to protection against inhuman and degrading treatment as prescribed in Article 4 of the EU Charter of Fundamental Rights and Article 3 of the ECHR.It emphasised, however, that the outcome could be different, once new information is available, particularly concerning the classification of Serbia as a safe country, following possible changes in the implementation of Hungarian asylum legislation, through the decisions of the European Court of Human Rights, or otherwise.The Supreme Administrative Court ruled that X's application for international protection is to be examined in Finland and referred the matter back to the Immigration Service.

16.6.2016 / 3.7.2023 / RHANSKI

Date when decision was rendered: 24.6.2013

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

Reference: Report no. 2068; 1558/1/11

Reference to source

KHO 2013:113.

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, refugee status,
utlänningar, asyl, avvisning, flyktingstatus,
ulkomaalaiset, turvapaikka, käännyttäminen, pakolaisen oikeusasema,

Relevant legal provisions

sections 87-1, 88-1 and 90 of the Aliens Act

= utlänningslag 87 § 1 mom., 88 § 1 mom. och 90 §

= ulkomaalaislaki 87 § 1 mom., 88 § 1 mom. ja 90 §.

ECHR-3; ECHR-13; Convention relating to the Status of Refugees

Abstract

Iranian nationals X and Y had been granted refugee status by the UNHCR in Turkey in 2007.The UNHCR regional office in Stockholm had confirmed in 2010 that their refugee status was still valid.X and Y applied for asylum in Finland in 2008, but the Immigration Service dismissed their applications and decided they are to be deported to Iran.The Immigration Service found that, on the basis of country reports and the applicants' own accounts there were no substantial grounds for believing that X and Y would face the risk of being persecuted in Iran.It also noted that a state party to the Convention relating to the Status of Refugees can examine and determine refugee status in a national asylum procedure regardless of the determination of refugee status by the UNHCR.The administrative court upheld the decision of the Immigration Service.

The Supreme Administrative Court recalled that under international law states have the right to control the entry, residence and expulsion of aliens.Refugee status granted by the UNHCR is not as such binding on a state party to the Refugee Convention.However, the court found that the recognition of refugee status by the UNHCR in an individual case must be given due weight and, if possible, the grounds for that recognition must be established, when that same person seeks asylum in a state party to the Refugee Convention.The state must evaluate particularly the danger or risk the asylum applicant is exposed to if returned to his or her home country.In the present case the Immigration Service had made a brief reference only to the refugee status granted by the UNHCR and had noted that in considering the requirements for international protection, Finland was not bound by the determination of refugee status by the UNHCR.The administrative court had not attempted to examine the matter in more detail, for example, by conducting an oral hearing.Because the UNHCR's grounds for recognising X and Y as refugees had not been appropriately examined by the Immigration Service or the administrative court, the Supreme Administrative Court quashed the decisions of the administrative court and the Immigration Service and referred the matter back to the Immigration Service for a new consideration.

In discussing the significance of the UNHCR refugee status determination in a national asylum process, the Supreme Administrative Court referred to the judgment of the European Court of Human Rights in the case of Jabari v Turkey (judgment of 11 July 2000, Reports of Judgments and Decisions 2000-VIII).It also referred to the cases of R.C. v Sweden (judgment of 9 March 2010) and S.F. et al v Sweden (judgment of 15 May 2012) concerning deportations to Iran and the human rights situation in Iran.

21.6.2016 / 2.3.2017 / RHANSKI

Date when decision was rendered: 13.1.2012

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

Reference: Report no. 23; 1750/1/11

Reference to source

KHO 2012:1.

Yearbook of the Supreme Administrative Court 2012 January-June

Högsta förvaltningsdomstolens årsbok 2012 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 2012 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2012

Pages: 9-25

Subject

aliens, asylum, sexual orientation, homosexuality, refusal of entry,
utlänningar, asyl, sexuell orientering, homosexualitet, avvisning,
ulkomaalaiset, turvapaikka, seksuaalinen suuntautuminen, homoseksuaalisuus, käännyttäminen,

Relevant legal provisions

sections 87, 87b and 88 of the Aliens Act; section 9-4 of the Constitution Act

= utlänningslag 87 §, 87b § och 88 §; grundlagen 9 § 4 mom.

= ulkomaalaislaki 87 §, 87b § ja 88 §; perustuslaki 9 § 4 mom.

ECHR-3; Articles 2, 18 and 19 of the Charter of Fundamental Rights of the European Union; Convention relating to the Status of Refugees

Abstract

X was originally from Iran.He was gay and had voluntarily chosen to conceal his sexual orientation from his parents and relatives.After X had been compelled to an arranged marriage, his sexual identity had been revealed.X claimed that his wife's family had accused him of betrayal and had sued him and that the court had sentenced him to death for homosexual conduct.X had fled Iran and had spent several years in different countries before arriving in Finland where he applied for asylum and a residence permit.The Immigration Service rejected his application.His appeal to the administrative court was also not successful.Both instances held, among other things, that gender-related aspects do not alone create a presumption of persecution and that X's account of the trial and the death sentence had not been sufficiently substantiated.Considering also that several years had passed since the events, that X had previously lived in Iran as a homosexual and that he could live elsewhere in Iran instead of his former home town, X's fear of being subjected to persecution if returned to Iran was not objectively justified.

The Supreme Administative Court noted that sexual orientation falls within the scope of protection of private life.The purpose of international protection is to provide protection against justified fear of persecution when the national state is unwilling or unable to provide such protection.However, the purpose is not to guarantee a person belonging to a sexual minority the possibility to live in his or her home country as openly as in the asylum country.If the applicant voluntarily conceals his or her sexual orientation in his or her home country due to social, cultural or religious reasons and not because of fear of persecution, the requirements for granting asylum are not met.Regarding asylum requirements the Supreme Administrative Court found that it had been reliably shown that X was a homosexual and thus belonged to a minority group and a particular social group.As far as fear of persecution was concerned the Supreme Administrative Court held that it was sufficient if the applicant can reliably show that he or she is suspected of belonging to a sexual minority group in his or her home country.In X's case it was likely that the Iranian authorities had been aware of his sexual orientation at least from the point in time when, as had been substantiated, legal proceedings had been initiated against X's mother concerning X's absconding and the marriage and identity documents of X and his wife.That X should nevertheless continue to voluntarily conceal his sexual orientation and to suppress his sexual identity was, in the view of the Supreme Administrative Court, not in line with the purpose of the Refugee Convention.The court continued that although X had not been able to present reliable documentary evidence on his alleged death sentence, the Immigration Service and the administrative court should have assessed, taking into account up-to-date country reports and all the evidence presented in the case, whether X had a well-founded fear of being persecuted in Iran due to his sexual orientation or whether he would face a real risk of being subjected to serious harm if returned to Iran.The Supreme Administrative Court quashed the decisions of the Immigration Service and the administrative court and referred the case back to the Immigration Service for a new consideration.

4.7.2016 / 2.3.2017 / RHANSKI

Date when decision was rendered: 25.8.2014

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

Reference: Report no. 2473; 480/1/13

Reference to source

KHO 2014:131.

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, residence permit, crimes against humanity,
utlänningar, asyl, uppehållstillstånd, brott mot mänskligheten,
ulkomaalaiset, turvapaikka, oleskelulupa, rikos ihmisyyttä vastaan,

Relevant legal provisions

sections 87 and 89 of the Aliens Act; Article 12 of Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted

= utlänningslag 87 § och 89 §; Rådets direktiv 2004/83/EG om miniminormer för när tredjelandsmedborgare eller statslösa personer skall betraktas som flyktingar eller som personer som av andra skäl behöver internationellt skydd samt om dessa personers rättsliga ställning och om innehållet i det beviljade skyddet artikel 12

= ulkomaalaislaki 87 § ja 89 §; Neuvoston direktiivi 2004/83/EY kolmansien maiden kansalaisten ja kansalaisuudettomien henkilöiden määrittelyä pakolaisiksi tai muuta kansainvälistä suojelua tarvitseviksi henkilöiksi koskevista vähimmäisvaatimuksista sekä myönnetyn suojan sisällöstä 12 artikla.

Article 1-F of Convention relating to the Status of Refugees; Articles 7 and 25 of the ICC Statute

Abstract

X was originally from Afghanistan and had applied for asylum in Finland.The Immigration Service found that the requirements for providing international protection were met.However, with reference to the exclusion clauses in the Aliens Act and the Refugee Convention, the Immigration Service held that X could not be granted asylum because there were reasonable grounds to suspect that he had committed a serious non-political crime in his home country.X was issued with a temporary residence permit in Finland.The administrative court agreed with the Immigration Service.

The Supreme Administrative Court noted that X had for almost 30 years been a member of the State Information Service (KhAD) in Afghanistan and had acted as a spy and an informer.KhAD was the official state security and intelligence agency and had reportedly been involved in various human rights violations, including subjecting civilians to arrest, disappearences, torture, inhuman and degrading treatment and punishment, and extrajudicial executions.In the court's view, such acts could be classified as crimes against humanity, rather than serious non-political crimes.A person is criminally responsible for a crime against humanity also if that person contributes to the commission or attempted commission of such a crime by a group of persons.Mere membership to KhAD would not automatically lead to the application of the exclusion clauses.The individual exclusion assessment needs to take into consideration the individual's role, rank and functions within KhAD.In the opinion of the Supreme Administrative Court, X's long-term membership to KhAD could be regarded as contribution to human rights violations committed by KhAD.The court held that X must have known that at least some of the people he had reported to KhAD had ended up being executed.In connection with intelligence operations, X had infiltrated anti-government terrorist groups, had received weapons training and terrorist training and had acted as a commander to armed groups which where trained to terrorise people.In the court's view, it was not decisive whether or not X, because of his duties as member of KhAD and because of his involvement in undercover operations, had been obliged to contribute to human rights violations.The Supreme Administrative Court concluded that there were reasonable grounds to suspect that X had contributed to the commission of crimes against humanity and could thus not be granted asylum in Finland.

7.7.2016 / 7.7.2016 / RHANSKI

Date when decision was rendered: 18.11.2016

Judicial body: Helsinki Administrative Court = Helsingfors förvaltningsdomstol = Helsingin hallinto-oikeus

Reference: Report no. 08635/16/3105; 16/1267/71

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

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

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

aliens, asylum, refusal of entry, internal flight,
utlänningar, asyl, avvisning, internflykt,
ulkomaalaiset, turvapaikka, käännyttäminen, sisäinen pako,

Relevant legal provisions

sections 87-1, 88e, 146, 147 and 148 of the Aliens Act

= utlänningslag 87 § 1 mom., 88e §, 146 §, 147 § och 148 §

= ulkomaalaislaki 87 § 1 mom., 88e §, 146 §, 147 § ja 148 §.

ECHR-3

Abstract

X, who was an arab and a Sunni Muslim from the city of Mosul in Iraq, had applied for asylum in Finland.The Finnish Immigration Service found that the requirements for providing international protection under the Aliens Act were met in X's case.However, X wad denied asylum on the grounds that he had the possibility of internal relocation to Baghdad.X appealed against the decision to the administrative court.

The administrative court noted that according to recent country reports, the general circumstances prevailing in Baghdad did not as such prevent internal relocation.However, X was an arab and a Sunni Muslim from the city of Mosul which was controlled by the Islamic State (IS) militants.According to country reports, persons with backgrounds similar to X's were often suspected of being IS-supporters and were therefore at risk of being targeted by Shia militias in Baghdad.X belonged to a religious minority in Baghdad.He had no relations or other support networks in Baghdad and could in practice not rely on protection from the authorities.Taking into account X's personal circumstances as a whole the administrative court concluded that the possibility of internal relocation to Baghdad was not an option in X's case.Therefore, the Immigration Service could not have refused him asylum on those grounds.The matter was returned to the Immigration Service for a new consideration.

In its decision, the administrative court also referred to the case law of the European Court of Human Rights (Salah Sheekh v the Netherlands, judgment of 11 January 2007, and J.K. et al. v Sweden, judgment of 23 August 2016).

13.1.2017 / 2.3.2017 / RHANSKI

Date when decision was rendered: 30.11.2016

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

Reference: Report no. 2891/4/16; 5099

Reference to source

KHO 2016:193.

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, internal flight,
utlänningar, asyl, avvisning, internflykt,
ulkomaalaiset, turvapaikka, käännyttäminen, sisäinen pako,

Relevant legal provisions

sections 87-1, 88-1, 88a-1, 88d, 88e and 147 of the Aliens Act; section 9-4 of the Constitution Act; Articles 2-d, 2-f, 8 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 87 § 1 mom., 88 § 1 mom., 88a § 1 mom., 88d §, 88e § och 147 §; grundlagen 9 § 4 mom.; Europaparlamentets och rådets direktiv 2011/95/EU om normer for 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-d, artikel 2-f, artikel 8 och artikel 15-c

= ulkomaalaislaki 87 § 1 mom., 88 § 1 mom., 88a § 1 mom., 88d §, 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 suojelun sisällölle artikla 2 alakohdat d ja f, artikla 8 ja artikla 15 alakohta c.

ECHR-3; Articles 18 and 19 of the Charter of Fundamental Rights of the European Union

Abstract

X was from Baghdad, Iraq, and had applied for asylum in Finland.The Finnish Immigration Service denied asylum but found that because of the general security situation in Baghdad X was in need of humanitarian protection.However, the Immigration Service held that X had a possibility to relocate in Southern Iraq and therefore, he was not granted a residence permit in Finland.The administrative court upheld the decision of the Immigration Service.Also the Supreme Administrative Court found that the requirements for providing asylum under the Aliens Act were not met.The Court then assessed whether X should be granted a residence permit on the basis of subsidiary protection on grounds that, if returned to Baghdad, he would face a real risk of being subjected to serious and individual threat as a result of indiscriminate violence in a situation of an armed conflict.When considering the case the Court reviewed several recent country reports on Iraq (e.g., by the UNHCR, human rights NGOs and foreign offices or immigration authorities in the UK, the US and Sweden).Regarding non-refoulement and the definition of "a serious and individual threat" the Court relied, e.g., on the case law of the European Court of Human Rights (J.K. et al v Sweden, judgment of 23 August 2016; A.A.M. v Sweden, judgment of 3 April 2014; S.A. v Sweden, judgment of 27 June 2013; Sufi and Elmi v the United Kingdom, judgment of 28 June 2011) and the case law of the CJEU (C-465/07 Elgafaji; C-285/12 Diakité) interpreting the Qualification Directive (2011/95/EU).

The Supreme Administrative Court noted that although the security situation in Baghdad according to the most recent country reports had deteriorated, the intensity of violence had not reached a level which would constitute, as such, a real risk of treatment contrary to Article 3 of the ECHR.Indiscriminate violence as such cannot be considered to make a person entitled to subsidiary protection solely on the grounds that the person comes from Baghdad.However, 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.

The Supreme Administrative Court noted that as a Shia Muslim X belonged to a majority group in Baghdad.According to country reports Shia Muslims residing in Baghdad were not in risk of being subjected to serious and individual threat as a result of indiscriminate violence solely due to their religious identity.X had been a member of the Iraqi armed forces and while working at an army checkpoint he had been engaged in a confrontation with an unidentified Shia military group.X claimed that if returned to Iraq he would be persecuted by the Shia militia.The Supreme Administrative Court found that based on his account of the events, X could not be regarded as an opponent to an unidentified Shia military group and was not likely to be targeted by the Shia militia because of a single incident.X was a healthy and able-bodied man, who had lived in Baghdad where his parents, his sisters and his daughter still lived.The Court concluded that X could not be regarded as being in danger of being subjected to a serious and individual threat as a result of indiscriminate violence if returned to Baghdad.

The Supreme Administrative Court also considered the possibility of internal flight and found that relocation to Southern Iraq, where the majority of the population are Shia Muslims, was a feasible option.According to country reports the general situation in Southern Iraq was fairly safe.Although the humanitarian situation was problematic, there were humanitarian organisations, including the UNHCR, present and active in Southern Iraq.Despite the fact that X apparently had no relatives or other support network in the area, his living conditions would be reasonable if relocated to Southern Iraq.The Supreme Administrative Court concluded that X could be returned to Iraq.

17.1.2017 / 2.3.2017 / RHANSKI