Finland - Supreme Administrative Court, 18 February 2014, KHO:2014:35

Country of Decision:
Country of Applicant:
Date of Decision:
18-02-2014
Citation:
KHO:2014:35
Court Name:
Supreme Administrative Court
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Finland - Aliens Act - Section 87
Finland - Aliens Act - Section 88
Finland - Aliens Act - Section 88a
Finland - Aliens Act - Section 89
Finland - Esitutkintalaki (Criminal Investigations Act) 805/2011
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Headnote: 

This case concerns whether it had been legal to apply exclusion clauses and refuse international protection for an applicant who was suspected of committing a serious crime. The Supreme Administrative Court concluded that subsidiary protection could be refused for a person who was suspected of committing aggravated rape.

Facts: 

The Applicant had fled from his home region in Southern Somalia because Al-Shabaab had intimidated and threatened the Applicant, and demanded that the Applicant join Al-Shabaab.  Al-Shabaab had killed the Applicant’s father in 2010. The Applicant was suspected of committing an aggravated rape in Finland on 16 January 2012.

The Immigration Service handed down its decision on 22 May 2012. It stated that the security situation in the home region of the Applicant was such that the Applicant was entitled to humanitarian protection as provided for by section 88 a subsection 1 of the Aliens Act. As the Applicant would have to return to his home region through Mogadishu he was also entitled to subsidiary protection in accordance with section 88 subsection 1, point 3 of the Aliens Act. The Immigration Service did not issue a residence permit to the Applicant because he was suspected of committing a crime. According to section 88 subsection 2 point 2 and section 88 a subsection 2 point 2 of the Aliens Act, residence permits based on subsidiary and humanitarian protection shall not be given to an Applicant if there are reasonable grounds to suspect that the Applicant has committed a serious crime. When the Immigration Service made its decision the crime was under investigation by the police. The Applicant received instead a residence permit in accordance with section 89 of the Aliens Act. According to this provision, an applicant who has been excluded from protection receives a temporary residence permit if he or she cannot be returned due to the rule of non-refoulement.

The Applicant appealed to the Administrative Court of Helsinki which rejected the appeal. The Administrative Court of Helsinki concluded that in accordance with section 89 of the Aliens Act the Immigration Service had had reasonable grounds to suspect the Applicant of committing a serious crime. Therefore the Immigration Service had reason to refuse to grant subsidiary protection to the Applicant.

The Applicant applied for leave to appeal from the Supreme Administrative Court. The Applicant stated that the presumption of innocence entails that the Applicant should be held innocent until proven guilty in a criminal trial. The Applicant was entitled international protection or a fixed-term residence permit.

The Immigration Service stated that it had not violated the presumption of innocence, because it had only made an administrative decision. The law provides that reasonable grounds to suspect someone of a serious crime is sufficient as such to exclude the person from international protection.

Decision & Reasoning: 

The Supreme Administrative Court gave leave to appeal and examined the appeal.

The Supreme Administrative Court considered that purely based on country of origin information the security situation in Southern Somalia was such that the Applicant was entitled to receive humanitarian protection in accordance with section 88 a of the Aliens Act. As the Applicant would have to return to the Applicant’s home region by passing through Mogadishu, the Applicant was in addition entitled to receive subsidiary protection in accordance with section 88 subsection 1 point 3 of the Aliens Act.

The Applicant was suspected of committing a serious crime. At the time when the Immigration Service had made its decision the crime had been under investigation by the police. When the matter was before the Supreme Administrative Court, the criminal case was under review for an indictment by the prosecution.

According to section 88 subsection 2 point 2 of the Aliens Act an alien is not issued with a residence permit on grounds of subsidiary protection if there are reasonable grounds to suspect that the alien has committed a serious crime.

The government proposal (HE 166/2007 vp) transposing the EU Qualification Directive stated that the term “serious crime” did not refer to those acts classified as aggravated crimes in the Penal Code. The term was meant to describe the seriousness of the act on a more general level.

The meaning of the term “reasonable grounds to suspect” was fundamental. This term was not clarified further in the Qualification Directive or the government proposal. The Supreme Administrative Court concluded that the threshold for exclusion was on purpose meant to be lower than the threshold for being found guilty of a crime, the threshold to be indicted for a crime, and the threshold to be convicted for a crime. Applying an exclusion clause did not require that those thresholds were met.

The current case can be compared to Article 1 F b) of the Refugee Convention, which provides that the Convention shall not apply to any person with respect to whom there are serious reasons for considering that he has committed a serious non-political crime outside the country of refuge.

Taking note of an asylum instruction by the UK Home Office and a judgment by the UK Supreme Court mentioned therein (JS (Sri Lanka) (17 March 2010)), the Supreme Administrative Court stated that the term "reasonable grounds to suspect” refers to proof that is not feeble, nor inherently faint or vague, and which is based on more than suspicion or speculation. The term “reasonable grounds to suspect” sets the threshold higher than it is if one merely “suspects”.

The Court further noted that according to an UNHCR Statement on Article 1 F of the Refugee Convention, exclusion does not require that the person has been found guilty in a criminal procedure. However, the proof for suspicion must be reliable, credible, convincing, and more pronounced than a suspicion or a claim.

The Supreme Administrative Court referred to literature on refugee law and stated that the concept of exclusion from international protection must be separated from the criminal law concepts of indicting and adjudicating. The term “reasonable grounds to suspect” should be compared to the term “reasonable grounds for regarding” as it is set out in Article 33 paragraph 2 of the Refugee Convention providing for the prohibition of expulsion. According to this provision, a refugee may not enjoy the benefit of the protections set out in paragraph 2 of said article if there are reasonable grounds for regarding the person as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. While “reasonable grounds to suspect” entails a stronger level of suspicion than “reasonable grounds for regarding”, it does not require a judgment from a criminal court.

Section 88 subsection 2 point 2 of the Aliens Act does not require a finding of guilt, a criminal judgment or the filing of an indictment. The term “reasonable grounds to suspect” sets a higher threshold than a presumption, and further implies a stronger suspicion than the term “reason to believe” provided for in chapter 3, section 3 of the Criminal Investigations Act.   According to this chapter, the authority conducting the pre-trial investigation must commence an investigation when there is “reason to believe” that a crime has been committed. The fact that a pre-trial criminal investigation has been commenced does not necessarily mean that an exclusion clause has to be applied to a refugee case. The authorities may however come to this conclusion in individual cases, where the criminal investigation has been commenced under such circumstances that there are also “reasonable grounds to suspect” a person of committing a crime, in accordance with section 88 subsection 2 point 2 of the Aliens Act. Whether the threshold is met for “reasonable grounds to suspect” as such or whether it is required that a police investigation proceeds to a prosecutor for a consideration of an indictment depends on the individual circumstances and an overall consideration of the case.  It may be of importance to consider what type of crime the person is suspected of, and whether the crime had constituted a danger to public order and security.

In the case before the Court the criminal investigation had subsequently been concluded and the case had been transferred to a prosecutor for a consideration of an indictment. The Court found that this was an additional reason to suspect, on “reasonable grounds”, that the Applicant had committed a crime. The filing of an indictment by a prosecutor can be seen as an equal level of suspicion as the level provided for in section 88 subsection 2 point 2 of the Aliens Act.

When applying exclusion clauses, the Immigration Service must take into consideration the circumstances present at the time it takes a decision on an application for international protection. The fact that a case has later proceeded from a criminal investigation to a consideration for an indictment or an indictment may be relevant when the legality of the decision of the Immigration Service is later considered.

In the case before the Court, the Immigration Service has applied an exclusion clause when considering the application by a person who had been suspected of committing an aggravated rape. There was reason to believe that the Applicant had committed a serious crime against the security, health and personal integrity of another person. The fact that a criminal investigation had been commenced did not meet the threshold for applying the exclusion clause. The Immigration Service had reasonable grounds to suspect that the Applicant had committed a serious crime in Finland. Therefore it was right in not issuing a residence permit to the Applicant in accordance with section 88, subsection 2 of the Aliens Act. The decision by the Immigration Service did not violate the Applicant’s right to the presumption of innocence.

Outcome: 

The Supreme Administrative Court did not revoke the decision of the Administrative Court of Helsinki.

Other sources cited: 

Country of origin information on Somalia:

Amnesty International 6.5.2008: Routinely Targeted - Attacks on Civilians in Somalia, AFR 52/006/2008

Migrationsverket, 3.4.2009

Khalif A. 30.12.2009: Somalia: Al-Shabaab Orders on Radio and Beard Cause Confusion. Daily Nation On The Web. AllAfrica.com http://allafrica.com/stories/200912300772.html

Gordner, Matthew J. 18.1.2010: Warning Signs Ignored? Despite Suspected Ties to al-Qaeda, the World Watches as More Southern Somalia Falls to Al-Shabaab. CAI Africa Conflict & Terrorism Newsletter

UNHCR: Eligibility Guidelines for Assessing the International Protection Needs of Asylum-seekers from Somalia. May 5, 2010.

Le Sage, Andre: Somalia's Endless Transition: Breaking the Deadlock June 2010

Migrationsverket: Säkerhetssituationen, Al Shabaab och klanskydd i södra och centrala Somalia, 25.5.2011

Migrationsverket: Säkerhetssituationen i Somalia Maj 2011, 9.6.2011

Dagne, Ted: Somalia. Current Conditions and Prospects for Lasting Peace. Congressional Research Service 29.6.2011

AllAfrica.com/Shabelle Media Network (Mogadishu): Somalia: Tension High As Fighting Looming in Lower Juba Region, 30.7.2011

Landinfo: Report Somalia: Security and conflict in the South, 29.8.2011

FSNAU: Famine continues: observed improvements contingent on continued response, 18.11.2011

OCHA: Somalia: Key Figure on Somalia, 24.11.2011

UN Security Council, Report of the Secretary General on Somalia S/2011/759, 9.12.2011

Migrationsverket: Säkerhetssituationen i Somalia, Migrationsverket 24.10.2012

Danish Immigration Service Landinfo: Update on Security and Human Rights Issues in South-Central Somalia, including in Mogadishu, 17 - 28.10.2012

BBC News: Somali famine 'will kill tens of thousands', 15.11.2012

Amnesty International press release: Mogadishu cannot qualify as an internal flight alternative, AFR 52/012/2013, 26.9.2013

 

Exclusion:

Refugee Law in Context: The Exclusion Clause, toim. Peter J. van Krieken, 1999

Government proposal, HE 166/2007 vp

UNHCR Statement on Article 1 F of the 1951 Convention, July 2009

UK Home Office: Asylum Instruction: Exclusion: Article 1 F of the Refugee Convention, 30.5.2012