Finland - Supreme Administrative Court - national authorities cannot expect the uncle of an unaccompanied minor to ensure that a child can safely return to his or her family

Friday, November 10, 2017

On 10 November 2017, the Supreme Administrative Court of Finland ruled in case KHO:2017:173 regarding the rejection of the asylum application by an Iraqi unaccompanied minor followed by a return order. He had applied for asylum in Finland fleeing persecution in Iraq after witnessing the killing of some of his family members.

The Supreme Administrative Court concurred with the lower court in that living with his family would be in the child’s best interest. However, the Supreme Administrative Court pointed out that it was the responsibility of the national authorities to ensure that the return of the child to his country of origin could happen safely and that he would receive adequate reception upon return. It did not accept the claim by the Finnish Immigration Service that the applicant’s uncle (also an asylum seeker in Finland) could ensure the safe return of the child. It also rejected the argument that the safe return of a child can be ensured via a voluntary return programme, as argued by the Immigration Service. Moreover, the Supreme Administrative Court gave particular weight to the fact that the uncle was not the child’s legal guardian.

Therefore, since it has not been possible to ascertain the safety of the appellant's return and the appropriateness of the reception conditions, the Supreme Administrative Court annulled the return decision and referred the case back to the Finnish Immigration Service for re-examination. While not directly instructing the administrative authorities, the Court stated that particular attention should be paid to the child’s young age (thirteen years old) when considering the granting of a residence permit in case return to the country of origin is confirmed as not being possible.

Based on an unofficial translation by the ELENA Weekly Legal Update. We would like to thank Marjaana Laine, ELENA Coordinator for Finland, for her kind assistance with translating and summarising these cases.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Best interest of the child
Family member