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

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.