Finland - Supreme Administrative Court, 22 November 2013, KHO:2013:180

Facts:

Applicant A was born in Sulaymaniyah, Iraq, but he had lived and worked in Greece since 2001. He was married to a Bulgarian citizen and together they had a child born in 2010. During 2012 the family had resided in Iraq, Bulgaria and Greece. In August 2012, Applicant A arrived in Finland with a valid Iraqi passport and applied for asylum and international protection.

The Immigration Service refused his application on 30 October 2012 and decided to return Applicant A to Sulaymaniyah, Iraq. The Immigration Service further decided that Applicant A had 30 days to leave Finland voluntarily.

The wife and child of Applicant A were returned to Bulgaria on 11 April 2013.

The Immigration Service considered that Applicant A would not be subject to persecution, serious harm or inhuman or degrading treatment in Sulaymaniyah. Nor could he be sent from Sulaymaniyah to another part of the country where he would face such risks. The Immigration Service had considered the length and purpose of Applicant A’s stay in Finland, his ties to Finland, and his cultural and social ties to his home country when deciding on his removal.

The Immigration Service held that forcibly removing Applicant A and his wife to different states was not in violation of his right to respect for his family life, in accordance with Article 8 of the European Convention on Human Rights. Applicant A was at liberty to apply for a residence permit based on family ties in his wife’s home state, Bulgaria.

The Administrative Court of Helsinki revoked in part the decision by the Immigration Service. The Administrative Court of Helsinki decided that the Immigration Service should re-examine whether A had grounds for a temporary residence permit in accordance with section 51 of the Aliens Act.

The Administrative Court of Helsinki stated that even though the first option for return must be voluntary return, in accordance with the Returns Directive (2008/115/EC), this should not be a deciding factor when the Immigration Service decides whether a person is entitled to a temporary residence permit under section 51. The Court found that a verbatim interpretation of section 51 of the Aliens Act entails that if a person cannot be forcibly removed in due time, the person must receive a temporary residence permit even though he or she could return voluntarily. Therefore Applicant A must receive a temporary residence permit if it is impossible to return him forcibly.

The Immigration Service applied for leave to appeal from the Supreme Administrative Court. In its appeal, the Immigration Service stated that section 51 sets out an obligation to issue a temporary residence permit to a person who cannot be forcibly removed. However, the Immigration Service stated that it could consider whether circumstances under section 51 exist only if there first was an enforceable return decision, which the police was unable to execute in practice. There no longer was an enforceable decision in this case, as the Administrative Court of Helsinki had repealed the decision to remove A from Finland. Therefore the Immigration Service was not in a position to establish whether or not it was possible to enforce the removal decision and whether grounds for a temporary residence permit existed.

The Helsinki Immigration Police had given a statement wherein it confirmed that A could be forcibly removed to Iraq, because he had a valid Iraqi passport.

In his reply, Applicant A stated that there is no need for an enforceable removal decision to consider whether the requirements for a temporary residence permit are met, as provided for in section 51. If it is apparent and generally known that persons cannot be returned to certain states, the Immigration Service must examine applications and issue temporary residence permits to applicants arriving from those states. The Immigration Police had given its statement on the enforceability only after the Administrative Court of Helsinki had passed its decision. The authorities of the autonomous region of northern Iraq had an unfavourable view on forced removals to their region.

Decision & reasoning:

The Supreme Administrative Court granted leave to appeal and took the case under consideration

The Supreme Administrative Court stated that the purpose of section 51 was to avoid a legal limbo for refused asylum applicants who could not be forcibly removed. In order for a person to qualify for a residence permit under section 51 it is required that the obstacle to the removal is of a technical nature.

It is not necessary for the decision-making of the Immigration Service that there is an enforceable removal decision before the Immigration Service can examine whether there are obstacles to a forced removal. If the Immigration Service has no reason to believe that there will be obstacles to a forced removal it does not have to examine whether a removal will be successful in reality. In normal situations the enforcing authority, the police, will examine if there are any obstacles to a removal.

The Administrative Court of Helsinki should not have returned the case to the Immigration Service for an examination of the grounds for a temporary residence permit. Applicant A had a valid Iraqi passport. The authorities knew, and the police had later confirmed, that it would be possible to return Applicant A to Iraq.

Outcome:

The Supreme Administrative Court revoked the decision by the Administrative Court of Helsinki and judged that the decision by the Immigration Service was in force.

Other sources:

Government proposal on the Aliens Act (HE 28/2003 vp)