FInland - Helsinki Supreme Administrative Court, 21 September 2012, Hehao 12/0890/1
Keywords:
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
Headnote:
The Helsinki Supreme Administrative Court decided that Finland cannot return an Iraqi asylum seeker to Sweden, where he/she faces the risk of being sent back to Baghdad and may be subjected to violations of his/her human rights. The Supreme Administrative Courtdecided that the ruling of the Finnish Immigration Service had to be reversed and the application for asylum had to be substantively examined in Finland.
Facts:
The Applicant is an Iraqi citizen from Baghdad whose asylum application in Sweden was rejected in 2009. The Applicant and his/her family had been sent from Sweden to his/her home country, Iraq, from where the family had escaped to Syria. UNHCR in Syria had granted the Applicant and his/her family refugee status in 2010. The Applicant had applied for asylum in Sweden again in 2012. Sweden refused to reconsider the Applicant’s application because the decision to send him/her back was still in force.
The Immigration Service had not investigated the application for international protection and decided to send the Applicant to Sweden which, according to the Dublin Regulations responsible for processing the asylum application.
Decision & reasoning:
The Applicant is an Iraqi citizen from Baghdad whose asylum application in Sweden was denied in 2009. The Applicant and his/her family had been sent from Sweden to his/her home country, Iraq, from where the family had escaped to Syria. UNHCR in Syria had granted the Applicant and his/her family refugee status in 2010. The Applicant had applied for asylum in Sweden again in 2012. Sweden refused to reconsider the Applicant’s application because the decision to send him/her back was still in force.
Recently Finland has considered asylum applicants from Bagdad to begenerally in need of subsidiary protection
The Supreme Administrative Courtdecided that the ruling of the Finnish Immigration Service had to be reversed and the application for asylum had to be examined in substance in Finland. Finland cannot send the Applicant back to Sweden where he/she may face the risk of violations of his/her human rights.
Outcome:
The Helsinki Supreme Administrative Court reversed the decision made by the Immigration Service and returned the application to be reassessed by the Immigration Service.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Finland - Aliens Act - Section 146 |
| Finland - Aliens Act - Section 147 |