Finland - Supreme Administrative Court, 24 Jan 2011, KHO:2011:8
| Country of Decision: | Finland |
| Country of applicant: | Congo (DRC) |
| Court name: | Supreme Administrative Court |
| Date of decision: | 24-01-2011 |
| Citation: | KHO:2011:8 |
Keywords:
| Keywords |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
A residence permit granted on the grounds of subsidiary protection and an aliens passport granted under the previous Aliens Act (378/1991)31 § to a Democratic Republic of Congo (DRC) national and his family members could not be withdrawn when the family moved from Finland without a prior inquiry into whether or not there were existing grounds for withdrawing the need for subsidiary protection in accordance with the Aliens Act (301/2004) 107 § 2nd clause.
Facts:
On the 16.6.2008 the Immigration Service withdrew the permanent residency permits and aliens passports of a family from the DRC. These permits had been issued in 1997 and 1999. The reasoning behind the decision to withdraw was as follows: According to the Aliens Act 58 § paragraph one, a temporary or permanent residence permit is withdrawn when a foreigner has moved permanently out of the country or he/she has lived continuously overseas for two years with the intention to stay away permanently. The applicant had moved to France on 1.12.2005.
The Administrative Court overturned the decision of the Immigration Service and returned it for re-examination. The Immigration Service appealed to the Supreme Administrative Court for leave to appeal. The Immigration Service deemed that the Qualification Directive did not apply to the applicants.
Decision & reasoning:
The Supreme Administrative Court stated:
According to the Aliens Act 107 §:n (323/2009) paragraph two, an individual’s subsidiary protection status can be abolished, if the circumstances which initially led the individual to be granted subsidiary protection have ceased to exist or have altered to the degree that the individual is no longer in need of protection.
According to the fourth paragraph of the above mentioned clause, when considering the cessation of refugee status or subsidiary protection, an individual assessment must be made.
According to Art 16.1 of the Qualification Directive, a third country national or stateless person ceases to be in need of subsidiary protection, if the circumstances which lead to the granting of subsidiary protection have ceased to exist or have altered to the degree that the individual is no longer in need of protection.
Regarding any applications for international protection which are submitted after the Qualification Directive has been transposed, Art 19.1 of the same Directive states that member states must withdraw, abolish or not renew the subsidiary protection, if the person is no longer eligible for subsidiary protection.
The Asylum Procedures Directive in Finland came into effect nationally on 1.6.2009. The Qualifications Directive was enforced nationally on 1.6.2009 through a legislative amendment to the Finnish Aliens Act.
In certain cases the EU legal system must be taken into account when interpreting the Aliens’ Act, even when a particular act has not yet been implemented nationally. Therefore, the binding regulations of the Qualification Directive should have been taken into account from 10.10.2006 when interpreting the Aliens Act. It should also be taken into consideration that the Qualification Directive only applies to the minimum requirements regarding the qualification of individuals for international protection. The application of Art 19 has not been limited to a specific timeframe in the Government Bill. Therefore, Art 19.1 cannot be interpreted so that Art 16 would not be applicable to applications for international protection submitted before the implementation of the Qualification Directive.
The applicant was not awarded subsidiary protection according to §88 of the current Aliens Act, but a residence permit on the basis of "a need for protection" according to §31 of the previous Aliens Act (378/1991). In contrast, to the current §88, that above mentioned section of the act did not take the later Qualification Directive into account. Both acts, however, aimed to protect the life and health of an individual in need of international protection, when the conditions for granting asylum were not met. Therefore, the rules regarding the cancellation of subsidiary protection status according to subsection 2 of §107 must been seen to apply also to the cancellation of a residence permit on the grounds of a need for protection awarded according to § 31 of the previous Aliens Act. Consequently, a residence permit awarded according to §31 cannot be cancelled according to §58 of the current Aliens Act.
When considering the cancellation of a residence permit, the existence of the original grounds for awarding a residence permit must be established. According to the Government Bill, this action should be carried out by conducting an investigation for each case, which is as thorough as the one conducted when awarding subsidiary protection status.
Before cancelling the applicants’ residence permits and alien’s passports, the Immigration Service should have examined if the prerequisites for cancelling subsidiary protection status existed. Therefore, there were no reasons to alter the outcome of the Administrative Court’s decision.
Outcome:
The Supreme Administrative Court awarded leave to appeal and examined the case. The decision of the Helsinki Administrative Court was not altered.
Observations/comments:
In it's legal practice, the CJEU has viewed that Directives can have immediate legal effect. The Qualification Directive was implemented in Finland on the 1.6.2009. The Administrative Court was able to apply Art 16.1 of the Qualification Directive due to the principle of direct effect. According to the Government’s proposal (HE166/2007 vp) §88 of the Aliens’ Act was meant to include the prerequisites for subsidiary protection originating from the Qualification Directive. The term “need for protection” was to be changed to “subsidiary protection” at the same time. The applicant was awarded a residence permit on the grounds of a “need for protection”.
Case available on the website of the Supreme Administrative Court - http://www.kho.fi/paatokset/53441.htm