Finland - Supreme Administrative Court, 29 Oct 2009, KHO:2009:2676
| Country of Decision: | Finland |
| Country of applicant: | Afghanistan |
| Court name: | Supreme Administrative Court, |
| Date of decision: | 29-10-2009 |
| Citation: | KHO:2009:2676 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
Headnote:
The Supreme Administrative Court (SAC) quashed a decision of the Finnish Immigration Service which, applying the Dublin II Regulation, did not examine the application for international protection and decided to return the applicant to Greece. The SAC returned the case to the Immigration Service for a new examination based on new evidence that was presented regarding the applicant’s health.
Facts:
Applying the Dublin II Regulation the Finnish Immigration Service did not examine the application for international protection, and decided to return the applicant to Greece, the country deemed responsible for examining the claim. The Immigration Service did not consider the applicant to be a member of a vulnerable group, which would transfer responsibility for examining the claim according to Art 3.2 of the Dublin II Regulation. The District Administrative Court upheld the decision of the Immigration Service.
In Finland, the applicant had stated that he was a minor. The Finnish Immigration Service found, however, that the applicant was over the age of 18, based on information from the Greek authorities.
The applicant was traumatised and his mental health was very poor. He tried to commit suicide while in Finland. The Administrative Court rejected the appeal. The Supreme Administrative Court granted leave to appeal. The European Court of Human Rights granted interim measures, as did the Supreme Administrative Court.
Decision & reasoning:
The Supreme Administrative Court stated that it had been presented with new evidence on the applicant’s health, which meant that there were humanitarian grounds for examining the applicant’s asylum claim in Finland. This deliberation did not affect which country was primarily responsible for examining the claim according to the Dublin II Regulation. Therefore, the case was returned to the Immigration Service for a new examination.
Outcome:
The Supreme Administrative Court quashed the decision by the Immigration Service and the District Administrative Court and returned the decision for new examination to the Immigration Service.
Observations/comments:
The Supreme Administrative Court Justice’s voting statement stated that the current asylum procedure in Greece did not, in practice, give sufficient guarantees of a just process, and that it may, quite probably, leave an asylum seeker without the basic level of social assistance that forms a part of the provisions set out in the Dublin II regulation. On these grounds, the justice stated, that the applicant, who had applied for asylum in Finland, could not be returned to Greece, and that his case should be examined and decided upon in Finland.