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WG Asylum-Immigration > Meetings > Ljubljana, 28-29 June 2007 > Important asylum cases in Finnish law

Important asylum cases in Finnish law

In Finland the first appeal instance in the asylum-law disputes is the Helsinki Administrative Court (HAC) and the second appeal instance is the Supreme Administrative Court (SAC) in case that it grants a leave to appeal. Both courts publish some of their most important cases in free of charge Finnish database Finlex  (www.finlex.fi), but only in Finnish or in Swedish. The SAC publishes also a yearbook with around one hundred the most important judgments. During the last nine years only a very few asylum cases have been published. In the aforementioned SAC' yearbook only two cases were published. In this report I have selected the first three asylum cases that raise importance for this occasion.

1. Judgment of the SAC of 31 October 2002:

This case raises a question whether Article 1D of the Geneva Convention is applicable for stateless palestinian refugee, who came from the camp runed by the UNWRA.


Return to the country of habitual residence Lebanon and resorting to the assistance of UNWRA was not considered to contain any legal obstacles concerning a stateless Palestinian registered in a refugee camp run by UNWRA. There were, further, no obstacles shown to threaten seriously the security or livelihood of the applicant that would hinder his return to Lebanon. He was, therefore, not in the sope of application of Article 1D of the 1951 Geneva Convention relating to the Status of Refugees and there were no grounds for granting a refugee status pursuant to Section 30 of the Finnish Aliens Act nor grounds to grant a residence permit on grounds of need of protection pursuant to Section 31 of the Finnish Aliens Act. Refusing to grant a residence permit was not considered to be unreasonable. In the comprehensive assessment of the merits there were found no obstacles to return him back to the country of his habitual residence.

Ruling of the Supreme Administrative Court:

A leave to appeal is granted and the appeal is examined.
-1. The request for an oral hearing is denied.
-2. The appeal is rejected. The decision of the Helsinki Administrative Court is not overruled.


A had requested an oral hearing in the Supreme Administrative Court on grounds of the comprehensive examination in the SAC. There have, however, been shown no such new relevant facts on grounds of which there would be need to arrange an oral hearing in the Supreme Administrative Court.

A has claimed asylum in Finland 15 April 1999 and applied for a residence permit. A has been a benefit of the educational,  health care and other social services provided by the UNWRA in his country of habitual residence Lebanon. A has left Lebanon without difficulties with a refugee's travel document issued by the authorities of Lebanon.

Chapter 5 of the Aliens Act on international protection includes Section 30 on granting asylum and Section 31 on need of protection. The Act has no specific provisions on Palestinian refugees. Such provisions, however, are stipulated in the 1951 Geneva Convention relating to the Status of Refugees, which has entered into force 5 December 1968 by virtue of an act. Section 1 paragraph 1 includes international agreements binding on Finland as applicable law and orders when applying the Aliens Act.

Pursuant to Article 1D paragraph 1 the mentioned convention is not applied to persons, who presently receive protection or assistance from other UN agencies or offices besides UNHCR. Pursuant to paragraph 2 of the mentioned Article when such protection or assistance ceases for some reason without the position of such persons having been finally ruled according to resolutions accepted by the UN General Assembly these persons have the right ipso facto to the benefits of the 1951 Geneva Convention.

Article 1D of the 1951 Geneva Convention yields to interpretation and, indeed, various State Parties to the Convention have applied it in various different ways.

The responsible UN agency to implement the 1951 Geneva Convention in cooperation with State Parties UNHCR has drafted a Handbook on the Determination of the Refugee Convention. Pursuant to paragraph 143 of the Handbook it must be noted that when Palestinian refugees are concerned UNWRA functions only in certain areas of the Middle East and that protection is granted only in these areas. Therefore a Palestinian refugee outside these areas cannot benefit from the assistance of UNWRA and he can be considered a refugee pursuant to the grounds of the 1951 Geneva Convention. Usually it is sufficient to prove the circumstances on grounds of which he has received protection or assistance from UNWRA prevail and that he has not ceased to be a refugee pursuant to the cessation clauses or that he is excluded pursuant to the exclusion clauses.

UNHCR has, further, issued a statement (September 2001) in which it has clarified its interpretation of Article 1D. UNHCR has stated that in cases where a Palestinian refugee has left UNWRA´s jurisdiction paragraph 2 of Article 1D is applied when UNWRA´s assistance ceases “for some reason”. When the prerequisites of mentioned rule are met with, a refugee receives ipso facto the benefits of the 1951 Geneva Convention. According to UNHCR such is the situation both when a refugee cannot legally return to an area of UNWRA´s jurisdiction and when he is unwilling to return to his country of habitual residence due to the threat to his life or liberty or other pressing issues related to the protection. In stead, if a refugee has left UNWRA´s jurisdiction, e.g., for the lack of education or job opportunities or other related reasons of personal convenience, he cannot receive in the country of asylum the rights of the 1951 Geneva Convention nor ipso facto refugee status. UNHCR´s subsequent statement (October 2002) considers an obstacle to return threat to physical safety in stead of threat to life.

Council of the European Union has accepted 4 March 1996 a Joint Position on a uniform application of the legal definition of a refugee. The Joint Position has been notified to the respective authorities in the Member States as a guideline and they are not, i.a., binding on authorities exercising judicial power (i.a. courts). Point 12 of the Joint Position states on Article 1D of the 1951 Geneva Convention that to a person who deliberately withdraws from the protection and assistance laid down in the mentioned Article 1D cannot be applied the provisions of the Convention but in these cases refugee status is determined as a rule pursuant to Article 1 A 2.

To A, who is a stateless Palestinian registered by UNWRA in Lebanon, the rules laid down in Article 1D can be applied. According to the available information there are no legal obstacles to alien's return. Upon return to Lebanon he can benefit further from the possibilities of resorting to the assistance of UNWRA. Therefore it does not follow from the rules of Article 1D that A would in this respect directly, pursuant to Article 1D, enjoy the benefits of the 1951 Geneva Convention.

According to the documents A has lived in Northern Lebanon in the Nahr el Bared- camp administered by UNWRA. There are several rivalling political groups in the camp. A has presented as grounds to his asylum application the threat from Democratic Front -organisation,  other organisations and Syrian actors together with various livelihood related and housing problems. With reference to the ruling of Helsinki Administrative Court the Supreme Administrative Court states that there have been no such reasons relating to alien's security or basic livelihood shown in the case that would hinder him from returning to his country of habitual residence Lebanon. Therefore it cannot be considered in this respect that his possibilities to further receive assistance form UNWRA have ceased as meant in Article 1D paragraph 2.
Based on the above mentioned reasons A does not have ipso facto right to the benefits granted in the 1951 Geneva Convention. A must therefore not be granted refugee status as ruled in the Convention pursuant to Article 1D, which rule is included in Section 30 of the Aliens Act. Regarding Article 1D A is, therefore, not in the scope of application of the 1951 Geneva Convention.
As right to asylum and residence permit together with the requirements of removal from the country against his will must be examined on grounds of prevailing domestic legislation notwithstanding that he is not in the scope of application of the 1951 Geneva Convention.

The Supreme Administrative Court states, as Helsinki Administrative Court, that A has not made it probable that he would, pursuant to Section 30 paragraph 1 of the Aliens Act have a well-founded fear of persecution in his country of habitual residence on grounds of race, religion, nationality, membership of a particular social group or political opinion.
Pursuant to Section 31 of the Aliens Act an alien residing in Finland can be issued a residence permit on grounds of, i.a., when he in his country of habitual residence is threatened by torture or other inhuman or degrading treatment. With the reasons stated in Helsinki Administrative Court´s decision the Supreme Administrative Court considers that A has not presented such reasons for which there would be a well-founded reason to assume he would be in danger of other serious violations of his rights or inhuman or degrading treatment in his country of habitual residence. The fact that according to the available information Palestinian refugees rights to, i.a., practice certain professions cannot yield to such an interpretation that A would be in need of international protection pursuant to the mentioned provision. A cannot therefore be granted a residence permit on grounds of need of protection pursuant to Section 31 of the Aliens Act.

According to the information available social, economic and sanitary conditions in the Palestinian refugee camps in Lebanon, particularly in the camp of Nahr el Bared, are poor. UNWRA's economic resources to help refugees has deteriorated. Taken into consideration all facts presented in their entirety, it cannot, however, be considered that the decision of the Directorate of Immigration is illegal on the grounds that the denial of a residence permit would be unreasonable pursuant to Section 20 paragraph 1 subparagraph 3.
As concerns removal from the country the Supreme Administrative Court states, as does Helsinki Administrative Court that A can have been returned to his country of habitual residence Lebanon and have been ordered a prohibition of re-entry.


Article 1D is perhaps one of the most complicated parts of the Geneva Convention. Nevertheless, the above-mentioned statement of the UNHCR has clarified the situation a lot: if an applicant has left the refugee camp mainly due to economic reasons and if he/she can legally return, he is not entitled for refugee status ipso facto. Situation in the camps in Lebanon was not easy with limited possibilities for employment etc. and UNWRA´s resources for protection against Palestinian militants or Syrian troops were weak. If the court would have a case concerning a person from Gaza, the decision might be different - perhaps at least fro granting him/her a certain kind of protection status.

2. Chamber Judgment of the European Court of Human Rights in case of N. V. Finland                       

                    The Court held:

- by six votes to one, that the applicant’s expulsion to the Democratic Republic of Congo (DRC) at the present time would amount to a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights;
− unanimously, that no separate issue arose under Article 8 (right to respect for private and family life) of the Convention.

Under Article 41 (just satisfaction), the Court also held, unanimously, that the finding that the applicant’s expulsion to the DRC would amount to a violation of Article 3 constituted in itself sufficient just satisfaction for any non-pecuniary damage.

Principal facts:

The applicant, Mr N., comes from the DRC (formerly Zaire). He arrived in Finland on 20 July 1998, requesting political asylum on the strength of having been a member of the special division (Division Spéciale Présidentielle, the DSP) responsible for protecting former President Mobutu, his family and property. In particular, he was an infiltrator and informant in the DSP, reporting directly to very senior-ranking officers close to the former President. The applicant claimed his life was in danger because the regime under Laurent-Désiré Kabila, which replaced that of President Mobutu in May 1997, had started killing those who had worked under Mobuto. In addition he was a member of the Ngbandi tribe to which Mobuto also belonged.In 1999 the applicant met another asylum seeker, Ms E., and they lived together until Ms E. was deported on 22 February 2000.The DRC regime changed again in 2001, following which the general situation in the country improved.On 6 March 2001 the Directorate of Immigration ordered the applicant’s deportation to the DRC, finding his submissions inconsistent, that he had failed to prove his identity and that, if deported, he would not face a real risk of treatment contrary to Article 3 of the European Convention on Human Rights. Mr N. appealed unsuccessfully.Some time after her prohibition on re-entry had expired, Ms E. returned to Finland and had a son with the applicant.On 5 November 2002 the Government of Finland decided not to expel the applicant to the DRC until the European Court of Human Rights had examined his application, following a request from the Court under Rule 39 (interim measures) of the Rules of Court.On 4 March 2003 the Supreme Administrative Court refused a further appeal from the applicant noting that: his identity and ethnic origin remained unclear; he had not shown in a credible manner that he had remained in the DRC until 17 May 1997; and, that the applicant’s family life as established in Finland was not such as to attract protection under Article 8 of the Convention, given that neither parent had a valid residence permit or any other connection with Finland.On 17 June 2003 Helsinki Administrative Court refused E.’s appeal against the refusal of asylum or a residence permit on humanitarian grounds. On 16 July 2003 the Directorate of Immigration refused E. and her new-born child a residence permit and ordered their expulsion to Russia, E’s country of origin, with her two other children. E. remains in Finland pending the results of her appeal to the Supreme Administrative Court.

Procedure before the Court:

The application was lodged before the European Court of Human Rights on 31 October 2002. The President of the Chamber dealing with the case and the Chamber decided, on 5 and 12 November 2002 respectively, to apply Rule 39 measures, indicating to the Finish Government that the applicant should not be expelled pending the Court’s decision. On 23 September 2003 the application was declared admissible. From 18-19 March 2004 Court delegates questioned the applicant and witnesses on a fact-finding mission in Helsinki.

Summary of the judgment:

The applicant complained that he would face inhuman treatment if deported to the DRC, given his background and, in particular, his close connections with former President Mobutu. He also maintained that his deportation would violate his right to respect for his private and family life, as his family is living in Finland. He relied on Article 3 and 8 of the Convention.

The Court observed that, as the applicant had left the DRC eight years ago, it could not be excluded that the current DRC authorities’ interest in detaining and possibly ill-treating him due to his past DSP activities might have diminished with the passage of time. The regime had also changed in 2001. It was of some importance, though not decisive, that the applicant had never been in direct contact with President Mobutu and did not hold a senior military rank when forced to leave the country. The Court noted however that factors other than rank – such as the soldier’s ethnicity or connections to influential people – might also be of importance when considering the risk he or she might be facing if returned to the DRC. While a number of Mobutu supporters appeared to have been returning voluntarily to the DRC in recent years, the Court did not place any decisive weight on that fact when assessing the risk facing the applicant if he were compelled to return.The Court considered that decisive regard must be had to the applicant’s specific activities as an infiltrator and informant in President Mobutu’s special protection force, reporting directly to very senior-ranking officers close to the former President. On account of those activities, the Court found that he would still run a substantial risk of treatment contrary to Article 3, if now expelled to the DRC. The Court added that the risk of ill-treatment to which the applicant would be exposed might not necessarily emanate from the current authorities but from relatives of dissidents who might seek revenge for the applicant’s past activities in the service of President Mobutu. The overall evidence before the Court supported the applicant’s account of his having worked in the DSP, having formed part of President Mobutu’s inner circle and having taken part in various events during which dissidents seen as a threat to the President were singled out for harassment, detention and possibly execution. There was therefore reason to believe that the applicant’s situation could be worse than that of most other former Mobutu supporters, and that the authorities would not necessarily be able or willing to protect him. Neither could it be excluded that the publicity surrounding the applicant’s asylum claim and appeals in Finland might engender feelings of revenge in relatives of dissidents possibly affected by the applicant’s actions in the service of President Mobutu.In those circumstances, and having assessed all the material before it, the Court concluded that sufficient evidence had been adduced to establish substantial grounds for believing that the applicant would be exposed to a real risk of treatment contrary to Article 3, if expelled to the DRC at the present time. Accordingly, the enforcement of the order issued to that effect would violate Article 3 for as long as the risk persisted.

In view of its conclusion that the applicant’s expulsion to the DRC would violate Article 3, the Court found that no separate issue arose under Article 8.


My main problem in this case is that while it is not contestable that the European Court of Human rights (ECHR) examines evaluation of evidence/credibility and if it comes to a different conclusion than the national court, the judgement of the ECHR is written as the Finnish courts would expell a Mobutu´s informant  to Kabila´s DR of Congo. But, Finnish court judgments did not have such opinion. The national courts just did not believe the applicant's story. After SAC´s judgment the applicant had found a new Congolese witness. The ECHR had an oral hearing in Finland and heard this witness and believed  her.  I think it is worth discussing, if it fits to the role of  ECHR to have a new court prosedure with oral hearing and witnesses after a complete national procedure with hearing of witnesses.

2. Legal questions in relation to refuges from Iraq – is there an armed conflict in Iraq (Article 15c of the Directive no. 2004/83/EC)?

It derives from the presentation of our Swedish colleagues, that the question of status determination of refugees from Iraq is very current in Sweden. Numbers of refugee cases from Iraq in Finland are much lower than in Sweden. In 2006 there were about 200 applicants from Iraq. Almost all of them have got residence permit, but only temporary permit because of the difficulties in travelling back. This status is very weak, since it does not imply work permit, family unification etc. That is why all of them appeal to our court.

In cases where appellants are coming from northern Iraq (Kurdistan), our courts have not changed the decisions of the Directorate of Immigration. SAC has not granted the leave to appeal in these cases. If appellants are coming from Baghdad region, we have considered that there is an armed conflict according to the Art. 15 (c) of the Qualification Directive  Finland has not implemented this directive and we refer to both legal sources - the directive and domestic law which also includes armed conflict as a reason for need of protection status (subsidiary protection status).

In a pro memoria by the Finnish delegates from EURASIL workshop on Iraq (7 – 8 May 2007) it is stated that many of the EU countries grant subsidiary protection for applicants from Iraq. Switzerland, Cyprus, Estonia and Italy grant the status for all the applicants, while Belgium, Finland, Netherlands, Lithuania and Sweden grant protection for others than those from North Iraq. The other countries grant "tolerated to stay" status. I suppose that the discussion did not go to the details, but anyway there appeared that Stockholm Administrative Court in its decisions does not think there is an armed conflict in Iraq. So perhaps Helsinki Court and Stockholm Court are in a different opinion.

     Annual Yearbook Publication No. KHO: 2002: 69.
     The text has been translated by the Refugee advisory centre in Finland. The Aliens Act was adopted in 2004. Numbers of sections and paragraphs have changed. Sections dealing with refugee status and subsidiary protection have not changed.

     Press released issued by the Registrar, 416, 26. 7. 2005.
     Judge Maruste expressed a partly dissenting opinion, which is annexed to the judgment.

     Perhaps it is worth mentionig, that I didn´t act as a judge in our court in this case.