Finland: Supreme Administrative Court ruling that mere suspicion cannot exceed evidence threshold for exclusion clauses relating to membership of terrorist organisation

Tuesday, January 12, 2021

On 12 January 2021, the Supreme Administrative Court of Finland ruled in case KHO: 2021: 6 that mere suspicion or speculation is not sufficient to exceed the evidence threshold for the application of exclusion clauses in relation to membership of terrorist organisation.

The Finnish Immigration Service (FIS) considered that the applicant, Ms A had reasonable grounds to fear that she would be persecuted in her home country, Iran, within the meaning of section 87 (1) of the Aliens Act. Nonetheless, Ms A was refused international protection on the basis of the exclusion clause set out in 87(2) of the Aliens Act for having served in the Kurdistan Workers' Party (PKK). On appeal to the Administrative Court, the decision was annulled. The FIS subsequently appealed to the Supreme Administrative Court.

Ms A had served in the PKK and its affiliated organisations for several years during which time, the PKK committed terrorist acts considered contrary to the purposes and principles of the United Nations. The Supreme Administrative Court deemed it necessary to assess Ms A’s personal liability in relation to the acts in question. Referring to the CJEU in Joined Cases B and D (C-57/09 and C-101/09), it held that Ms A’s actual contribution to the acts of the organisation, her position in the organisation, the level of awareness of her activities which she had or may be expected to have had, any pressure exerted on her and other factors which may have influenced her conduct were relevant to the Court’s examination.
The Court noted that Ms A had not held a managerial positions in the organisations in question, nor could her position be regarded as particularly significant on any other grounds. Her work was focused on translating and disseminating information about the organisation. Moreover, the Court stated that it remained speculative, whether the persons who joined the organisation had done so as a result of her activities and whether such persons had subsequently committed terrorist acts. Although, her work in itself could be considered to have contributed to the organisation’s activities and goals, the Court held that she could not be held personally liable for acts committed by PKK fighters in violation of the purposes and principles of the United Nations and as such, the exclusion clause was not applicable.
In that regard, the Supreme Court upheld the decision of the Administrative Court to annul the FIS’s decision in respect of the exclusion clause. The matter was remitted to the FIS for fresh consideration.
With thanks to Siiri Sinnemäki for assisting the EWLU team with this summary. Based on an unofficial translation by the EWLU Team. Photo: Fredrik Rubensson, August 16, 2013, Flickr (CC)

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Assessment of facts and circumstances
Exclusion from protection
Individual assessment