Date when decision was rendered: 26.6.2014

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

Reference: Report no. 2844/1/12; 2012

Reference to source

KHO 2014:112.

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, trafficking,
utlänningar, uppehållstillstånd, människohandel,
ulkomaalaiset, oleskelulupa, ihmiskauppa,

Relevant legal provisions

sections 3-13, 52a, 87-1, 87b-1, 87b-3, 88-1, 88c and 88d of the Aliens Act

= utlänningslag 3 § 13 mom., 52a §, 87 § 1 mom., 87b § 1 och 3 mom., 88 § 1 mom., 88c § och 88d §

= ulkomaalaislaki 3 § 13 mom., 52§ §, 87 § 1 mom., 87b § 1 ja 3 mom., 88 § 1 mom., 88c § ja 88d §

Abstract

X, who was originally from Nigeria, had been deceived into moving to France and later to Italy where she had been forced to prostitution in 2004-2010.She escaped from her trafficker to Finland in 2010.The Finnish Immigration Service rejected her application for asylum or a residence permit on grounds of subsidiary protection.Instead, she was issued with a residence permit for one year.The Immigration Service held that being a traumatised trafficking victim and a single mother of a small child X was in a particularly vulnerable position and was thus eligible for a temporary residence permit under the Aliens Act.X appealed against the decision and requested asylum or subsidiary protection.Both the administrative court and the Supreme Administrative Court rejected the appeal.

The Supreme Administrative Court noted that instead of a residence permit issued specifically for trafficking victims under the Aliens Act, trafficking victims can be granted asylum or subsidiary protection, provided they meet the requirements prescribed in the Aliens Act.The court acknowledged that a female victim of human trafficking can, as a rule, be regarded as a member in a particular social group, which may be eligible for international proctection under the Aliens Act.Therefore, when considering her need for asylum it must be objectively assessed whether she has a well-founded fear of being persecuted in her home country because of her status as a trafficking victim.If this is not the case, she may be eligible for subsidiary protection, if there are substantial grounds for believing that, if returned to her home country, she would face a real risk of being subjected to inhuman or degrading treatment.It must also be assessed whether the person would face a risk of re-trafficking, if returned, and whether she can obtain protection from the authorities in her home country.Even when there is no risk of re-trafficking, it must be considered whether returning to the home country would be unreasonable owing to serious health consequences that result from trafficking.

The court acknowledged that Nigeria is one of the major source countries for trafficking to Europe, and there is a risk of re-trafficking.However, according to country reports available to the court, Nigeria has made an effort to combat trafficking, to protect trafficking victims and to prosecute traffickers.The National Agency for Prohibition of Trafficking in Persons (NAPTIP), set up by the Nigerian government, works together with other government agencies and national and international organizations, such as the International Organization for Migration (IOM).The resources available in Nigeria have so far been insufficient to suppress trafficking.Nevertheless, a system for combating trafficking and assisting trafficking victims has been established.Although deficiencies in the victims' access to assistance have been reported, returns of trafficking victims carried out in cooperation with NAPTIP and the IOM have been successful.There has been no indication that such persons would have been revictimized.Also, NAPTIP provides access to health care services, financial support and other assistance with the aim of preventing revictimization.

Regarding X's personal circumstances, her trafficker was a lone individual with apparently no link to an organized criminal network involved in human trafficking.After having arrived in Finland X had not been in contact with her trafficker.X had an occupation and she had relatives in Nigeria.She had been victimized outside her home country and she had the possibility to obtain protection from the authorities in her home country.The Supreme Administrative Court concluded that X could not be said to have a well-founded fear of being persecuted in Nigeria owing to forced prostitution which had taken place outside her come country or of being revictimized in her home country.Also, no substantial grounds had been shown for believing that X would be subjected to inhuman or degrading treatment if returned to Nigeria.There were thus no grounds for granting asylum or a residence permit on grounds of subsidiary protection.X's vulnerable position had been taken into account when she had been issued with a temporary residence permit as a victim of human trafficking.

26.5.2017 / 26.5.2017 / RHANSKI

Date when decision was rendered: 20.3.2017

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

Reference: Report no. 1580/4/16; 1269

Reference to source

KHO 2017:42.

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, trafficking, residence permit, refusal of entry,
utlänningar, människohandel, uppehållstillstånd, avvisning,
ulkomaalaiset, ihmiskauppa, oleskelulupa, käännyttäminen,

Relevant legal provisions

sections 52(1), 52a, 87(1), 87b(1), 87b(3), 88(1), 88a(1), 88c, 88d, 146(1), 147 and 148(1) of the Aliens Act; section 9(4) of the Constitution Act

= utlänningslag 52 § 1 mom., 52a §, 87 § 1 mom., 87b § 1 och 3 mom.; 88 § 1 mom., 88a § 1 mom., 88c §, 88d §, 146 § 1 mom., 147 § och 148 § 1 mom.; grundlagen 9 § 4 mom.

= ulkomaalaislaki 52 § 1 mom., 52a §, 87 § 1 mom., 87b § 1 ja 3 mom., 88 § 1 mom., 88a § 1 mom., 88c §, 88d §, 146 § 1 mom., 147 § ja 148 § 1 mom.; perustuslaki 9 § 4 mom.

ECHR-3; ECHR-4; Articles 5-3, 18 and 19 of the Charter of Fundamental Rights of the European Union; Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime; Articles 4, 14 and 16 of the Council of Europe Convention on Action against Trafficking in Human Beings

Abstract

X, who was originally from Nigeria, had applied for international protection in Finland for herself and her two minor children, based on the fact that she had been forced to prostitution while residing in Italy in 2004-2014.X was afraid of persecution from her trafficker.She also claimed that, if returned to Nigeria, she and the children would be exposed to Ebola virus and to danger caused by the militant Islamist group Boko Haram.The Immigration Service acknowledged that X was a victim of trafficking, but rejected her application for international protection and decided that X and the children are returned to Nigeria.Both the administrative court and the Supreme Administrative Court upheld the decision.When considering the case the Supreme Administrative Court took into account several current country reports on Nigeria.It also relied on the case law of the European Court of Human Rights (Rantsev v Cyprus and Russia, judgment of 7 January 2010; J. et al. v.Austria, judgment of 17 January 2017; Paposhvili v Belgium, judgment of 13 December 2016) and the UK Upper Tribunal (Immigration and Asylum Chamber) in the case of HD (Trafficked women) Nigeria CG, [2016] UKUT 00454 (IAC).

The Supreme Administrative Court acknowledged that victims of trafficking belong to a particular social group, which may be eligible for international protection under the Aliens Act provided they meet the other requirements for obtaining protection as prescribed in the Act.The court must consider whether X, if returned to Nigeria, can obtain effective, non-temporary and sufficient protection from the Nigerian authorities and whether she would face a risk of re-trafficking.Even when there is no risk of re-trafficking, it must be considered whether deportation to Nigeria would be unreasonable owing to health consequences that result from trafficking.

The Supreme Administrative Court noted that Nigeria wss one of the major source countries for trafficking to Europe, and that there is a risk of re-trafficking.However, the Nigerian government has made an effort to combat trafficking, to protect trafficking victims and to prosecute traffickers.The National Agency for Prohibition of Trafficking in Persons (NAPTIP), set up by the Nigerian government, works together with other government agencies, and national and international organizations, among them the International Organization for Migration.NAPTIP provides access to health care services, vocational training and financial support.The resources have so far been insufficient to suppress trafficking.However, there is a state-financed system in operation for combating trafficking and assisting the victims of trafficking, and according to country reports, financial resources targeted at the protection of trafficking victims have multiplied in recent years.Considering this, the protection offered by NAPTIP can generally be regarded as effective, non-temporary and sufficient.For a woman returning to Nigeria, after having fallen victim to human trafficking in Europe, there is in general no real risk of retribution or of being trafficked afresh by her original traffickers.The Supreme Administrative Court continued that in Nigeria, X could reunite with her parents and two brothers who had not been complicit in her trafficking.X originally came for a part of Nigeria where she, according to country reports, was unlikely to face the risk of re-trafficking.Given the protection available in her home country, X could not be said to have a well-founded fear of persecution from the trafficker in Italy or owing to forced prostitution which had taken place in Italy.Regarding the threat caused by the military group Boko Haram, the Supreme Administrative Court found that, based on country reports, X had no well-founded fear of being subjected to serious and individual threat as a result of indiscriminate violence if she returns to her home area in Nigeria.Regarding Ebola virus, the court noted that the WHO had in October 2014 officially declared Nigeria free of Ebola virus transmissions.Taking into account the protection offered by NAPTIP and the country information concerning health care in Nigeria, it could not be held that X and her children, if returned to Nigeria, would face a real risk of being exposed to a serious, rapid and irreversible decline in their state of health resulting in intense suffering or to a significant reduction in life expectancy.The Supreme Administrative Court concluded that the applicants did not meet the requirements for asylum or subsidiary protection under the Aliens Act.

Considering the provisions on residence permits for victims of trafficking under the Aliens Act, the Supreme Administrative Court noted that there were no pretrial investigation or court proceedings concerning X's trafficking pending in Finland which could have justified her temporary residence in the country.The court also found that the evidence considered as a whole, X was not in a particularly vulnerable position.If returned, she could rely on support from NAPTIP, including possible access to vocational training or financial support which would better equip her to provide for herself.She could also rely on support from her family.

Finally, concerning residence permits on compassionate grounds based on the applicant's health or ties to Finland, the Supreme Administrative Court found that returning to Nigeria would not result in reduction of X's life expectancy or cause severe physical or mental suffering.She could receive medical treatment in Nigeria, if necessary.Also, X had no particular ties to Finland.The requirements for residence permit on compassionate grounds were not met in X's case.The best interests of the child did not require that the matter should be decided otherwise.

The Supreme Administrative Court concluded that X and the children could be returned to Nigeria.However, because of Finland's international obligations to protect and assist victims of trafficking, the authorities implementing the deportation decision must cooperate with the competent Nigerian authorities responsible for receiving, assisting and protecting returning trafficking victims.The authorities shall see to it that X, if she so wished, is immediately upon her return admitted to a system of protection and assistance which takes into account her special needs and her vulnerable position.

26.5.2017 / 26.5.2017 / RHANSKI

Date when decision was rendered: 20.3.2017

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

Reference: Report no. 2445/4/16; 1271

Reference to source

KHO 2017:43.

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, trafficking, residence permit, refusal of entry,
utlänningar, människohandel, uppehållstillstånd, avvisning,
ulkomaalaiset, ihmiskauppa, oleskelulupa, käännyttäminen,

Relevant legal provisions

sections 52(1), 52a, 87(1), 87b(1), 87b(3), 88(1), 88c and 88d of th Aliens Act; section 9(4) of the Constitution Act

= utlänningslag 52 § 1 mom., 52a §, 87 § 1 mom., 87b § 1 och 3 mom., 88 § 1 mom., 88c § och 88d §; grundlagen 9 § 4 mom.

= ulkomaalaislaki 52 § 1 mom., 52a §, 87 § 1 mom., 87b § 1 ja 3 momm., 88 § 1 mom., 88c § ja 88d §; perustuslaki 9 § 4 mom.

ECHR-3: ECHR-4; Articles 5-3, 18 and 19 of the Charter of Fundamental Rights of the European Union; Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime; Articles 4, 14 and 16 of the Council of Europe Convention on Action against Trafficking in Human Beings

Abstract

X, who was originally from Nigeria, had applied for international protection in Finland for herself and her two minor children, based on the fact that she had been deceived into moving to Greece where she had in fact been forced to prostitution in 2003-2007.She escaped from her trafficker in 2007 and had been working as a cleaner in Greece before she came to Finland in 2014.X also claimed that the Nigerian father of her two daughters would force the girls to undergo female genital mutilation if returned to Nigeria.X had met the father in Greece.The couple had separated in 2012.The Immigration Service acknowledged that X was a victim of trafficking, but rejected her application for international protection and decided that X and the children are returned to Nigeria.The administrative court upheld the decision.X appealed further to the Supreme Administrative Court.When considering the case the Supreme Administrative Court took into account several current country reports on Nigeria.It also relied on the case law of the European Court of Human Rights (Rantsev v Cyprus and Russia, judgment of 7 January 2010; and J. et al. v Austria, judgment of 17 January 2017) and the UK Upper Tribunal (Immigration and Asylum Chamber) in the case of HD (Trafficked women) Nigeria CG, [2016] UKUT 00454 (IAC).

The Supreme Administrative Court acknowledged that victims of trafficking belong to a particular social group and may be eligible for international protection under the Aliens Act provided they meet the other requirements for obtaining protection.The court must consider whether X, if returned to Nigeria, can obtain effective, non-temporary and sufficient protection from the authorities in her home country and whether she would face the risk of re-trafficking.Even when there is no risk of re-trafficking, it must be considered whether deportation to Nigeria would be unreasonable owing to health consequences that result from trafficking.

The Supreme Administrative Court noted that Nigeria is one of the major source countries for trafficking to Europe, and that there is a risk of re-trafficking.However, the Nigerian government has made an effort to combat trafficking, to protect trafficking victims and to prosecute traffickers.The National Agency for Prohibition of Trafficking in Persons (NAPTIP), set up by the Nigerian government, works together with other government agencies and national and international organizations, among them the International Organization for Migration.NAPTIP provides access to health care services, vocational training and financial support.The resources have so far been insufficient to suppress trafficking.However, there is a state financed system in operation for combatting trafficking and assisting the victims of trafficking, and acconding to country reports, financial resources targeted at the protection of trafficking victims have multiplied in recent years.Considering this, the protection offered by NAPTIP can generally be regarded as effective, non-temporary and sufficient.For a woman returning to Nigeria, after having fallen victim to human trafficking in Europe, there is in general no real risk of retribution or of being trafficked afresh by her original traffickers.The court continued, however, that because of Finland's international obligations to protect and assist victims of trafficking, the authorities implementing the deportation decision must cooperate with the competent Nigerian authorities responsible for receiving, assisting and protecting returning trafficking victims.The authorities shall see to it that the victim, if she so wishes, is immediately upon her return admitted to a system of protection and assistance which takes into account her special needs and her vulnerable position.

In examining the applicant's particular circumstances, the Supreme Administrative Court noted that X had fallen victim to trafficking outside her home country.She had not been forced to work as a prostitute for over ten years and had not met with her trafficker during that time.If returned to Nigeria, X could reunite with her relatives who had not been complicit in her trafficking.Given the protection offered to trafficking victims in Nigeria which X can resort to if returned to her home country, X could not be said to have a well-founded fear of persecution from her trafficker or owing to forced prostitution which had taken place in Greece, and she was unlikely to face the risk of re-trafficking.There was also no reason to suppose that X, if returned to Nigeria, would face a real risk of being subjected to inhuman or degrading treatment.The Supreme Administrative Court also found that there were no reasonable grounds for suspecting that X's daughters would be exposed to the risk of female genital mutilation if returned to Nigeria.X herself was against the procedure.The children's father lived in Greece and X had not been in contact with him since 2014.According to country reports X has the possibility to turn to the competent authorities or organization in Nigeria offering protection against female genital mutilation.

The Supreme Administrative Court concluded that the applicant did not meet the requirements for asylum or subsidiary protection under the Aliens Act.Likewise, the requirements for issuing a residence permit on compassionate grounds were not met.This being the case, the court proceeded to consider whether X could be issued with a residence permit as a trafficking victim who is in a particularly vulnerable position.According to statements from varius social and health authorities in Finland, X had been diagnosed with post traumatic stress disorder and severe depression.She needed assistance in coping with everyday life with her daughters and was at present not capable of taking case of her children.It had been established that X had been receiving phone calls from her former trafficker in which the trafficker had made threats against X, her children and her relatives.The phone calls had continued when X was in Finland.The Supreme Administrative Court concluded that as a traumatised, single parent who needed support for her parenting, X was in a particularly vulnerable position and therefore, she is to be issued with a continuous residence permit.Taking into account the best interests of the child, X's daughters are to be issued with residence permits on the basis of family ties.

29.5.2017 / 29.5.2017 / RHANSKI