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:
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
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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:
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:
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
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.
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.