Finland - Supreme Administrative Court, 18 June 2010, 2776/1/09
Keywords:
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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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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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
Headnote:
The decision of the Administrative Court to refuse the applicant an oral hearing was overturned. The SAC held the Administrative Court did not show the Qualification Directive (which was implemented during the proceedings) had been applied and that the Administrative Court failed to take into consideration that as an asylum seeker the applicant had limited possibilities of supporting his claim by submitting written evidence only.
Facts:
The applicant is an ethnic Chechen and had lived in St. Petersburg for several years as a registered resident of the city. The applicant was active politically and socially in his country of origin. He was a severely traumatised torture victim. He was able to register himself in St. Petersburg by bribing the authorities. The applicant based his application for asylum on the fact that the authorities in the Russian Federation had shown increasing interest in him and his brother.
The Finnish Immigration Service held that the applicant was not of particular interest to the authorities and that the applicant could resort to internal protection. The applicant appealed the decision.
The Administrative Court rejected the appeal. The Court also held that the applicant could safely settle in St. Petersburg and enjoy protection from the authorities there.
The Supreme Administrative Court granted leave to appeal and examined the case.
Decision & reasoning:
During the appeal process in the Administrative Court of Helsinki, the Aliens’ Act was amended by a law which came into force on 01.06.2009 and which implemented the Qualification Directive. The Administrative Court’s decision did not show that the Administrative Court had taken the change in legislation into consideration. The Administrative Court had not arranged the requested oral hearing. On rejecting the arrangement of an oral hearing, the Administrative Court did not take into consideration that as an asylum seeker the applicant had limited possibilities to support his claim by submitting written evidence only.
Outcome:
The Supreme Administrative Court overturned the decision of the Administrative Court of Helsinki and returned the case to the Administrative Court for further investigation.
Subsequent proceedings:
The Administrative Court arranged an oral hearing. The Administrative Court rejected the claim for international protection and returned the case to the Immigration Service for further investigation, and for the granting of a residence permit. The Administrative Court held that the applicant should be awarded a residence permit on individual, compassionate grounds. An appeal regarding international protection is ongoing before the Supreme Administrative Court.
Observations/comments:
The Committee against Torture (CAT) requested Finland to resist from returning the applicant for the duration of the appeal process. Following the request the Supreme Administrative Court issued an interim measure .