Finland - Supreme Administrative Court, 7 December 2011, KHO:2011:98

Facts:

The Immigration Service denied the Applicant’s residence permit application which is based on a family tie to a Finnish citizen. Additionally, it decided to refoul him to the Russian Federation and stipulated that he had 30 days to leave the country voluntarily. In an interim order, the Helsinki Administrative Court refused the Applicant’s request to stay the order of refoulement and held that full judgment would be made at a later date. Giving grounds for the decision, the Administrative Court stated that there was no reason why the execution of the decision under the  ruling in Section 201 Article 1 of The Aliens Act should be denied.

The Applicant appealed against the decision by the Administrative Court to deny the stay of the interim order on the following grounds:  the appeal to the Administrative Court will be ineffective unless the execution of the decision to refoul is stopped for the duration of the handling of the appeal. The argument against deportation outweighs the arguments for it. Due to his old age and poor health he is in a vulnerable position. His only relative and support person is his daughter who lives in Finland and is a Finnish citizen. He is totally dependent on his daughter. The Applicant has neither a home nor a social network in his home country.  In support of his claim the Applicant referred to Articles 3, 8 and 13 of the European Convention on Human Rights.

The European Court of Human Rights has told the Finnish government not to deport the Applicant to Russia while his appeal is still on-going at the Court of Human Rights. The Applicant requested leave to appeal to the Supreme Administrative Court and it was granted.

Decision & reasoning:

The Supreme Administrative Court took the view that, based on the European Convention of Human Rights, there was no cause to depart from national provisions and review the Applicant’s appeal in the Supreme Administrative Court. Under the Aliens Act, an appeal to the Supreme Administrative Court can only be taken against a substantive decision of the Administrative Court and the interim order decision cannot be considered to be a final decision on the substance. The appeal to the Supreme Administrative Court regarding the substantive  issue was subject to leave from the Court.  The interim order was no barrier to the Applicant making a new application to deny or stop the execution of the deportation order. The Administrative Court itself had a duty, without being hindered by the interim order, to deny the execution if the Applicant’s personal or other circumstances so required.  An appeal can only be taken against a final decision and, in accordance with national provisions, an appeal against an interim order is inadmissible.  Because the failure to accept the non-refoulement argument might render the appeal on the substantive issue de facto ineffective, in order to guarantee the Applicant’s legal protection, in exceptional circumstances there was reason to carry out a review to determine whether his appeal should be handled by the Supreme Administrative Court without it being detrimental to the final decision under Section 58 of the Administrative Procedure Act and Section 199 Article 2 of the Aliens Act. The interpretation of The European Convention on Human Rights  is important in this respect. The Supreme Administrative Court took the view that based on the European Convention on Human Rights, there was no cause to depart from national provisions and review the Applicant’s appeal in the Supreme Administrative Court. In respect to the substantive  issues of the residence permit and deportation, the Administrative Court had to consider how the Applicant’s legal protection during the court hearing would be effectively ensured.

The Supreme Administrative Court took the view that based on the European Convention on Human Rights, there was no cause to depart from national provisions and investigate the Applicant’s appeal in the Supreme Administrative Court.

Outcome:

The Supreme Administrative Court  dismissed the Applicant’s appeal.