Application no. 42640/04
The European Court of Human Rights (Fourth Section), sitting on 22 May 2007 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 2 November 2004,
Having deliberated, decides as follows:
The applicant is a Pakistani national of Kashmir origin who was born in 1970 and lives in Helsinki. He was represented before the Court by Mr Ville Punto, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties and as they appear from the documents in the case file, may be summarised as follows.
1. Application for asylum
Account of events provided by the applicant before the immigration police and the Directorate of Immigration
On 17 May 1997 the applicant applied for asylum in Finland. Questioned by the police on 19 May 1997 he stated that he had left Karachi in December 1996 and had gone to Hong Kong via Sri Lanka and Bangkok where he claimed to have unsuccessfully applied for asylum.
Questioned again by the police on 26 and 28 June 1997 he stated that he had left Karachi on 31 October 1996 and had flown to Colombo, Sri Lanka. On 3 November 1996 he had continued to Bangkok where he had stayed until 7 November 1996, following which he had gone to Hong Kong where he stayed until 16 May 1997, having in between made a three-day trip to Macao. He had allegedly been assisted by an agent before reaching Hong Kong. On the journey from Hong Kong to Helsinki he had been assisted by another agent, who at Helsinki airport had disappeared taking with him the applicant’s new passport (obtained in January 1997, his original passport having been destroyed in a laundry). The applicant had paid the first mentioned agent USD 5,000.
According to the Finnish authorities, Interpol’s Hong Kong bureau stated that the applicant had been registered under a different name and as having been born in 1969 and as having entered Hong Kong in October 1992. On 10 January 1996 that person was convicted of having broken the immigration provisions. In reply to the Directorate of Immigration’s (ulkomaalaisvirasto, utlänningsverket) query, the applicant contended that he was that person and he explained that at the time he had used his nicknames.
According to the applicant, he joined the Jammu Kashmir Liberation Front (hereinafter “JKLF”) in 1989 as a normal member. In 1996 he went on tour spreading information about the organisation and the forthcoming elections. He was the chairman of a regional branch. He was also a member of an action group, set up on 25 April 1996 with a view to stopping the parliamentary elections on 31 June 1996. The action group worked for an independent Kashmir. On 11 February 1992 he had been arrested and detained for 15 days together with 30 to 40 others and assaulted by the police following a meeting. On 11 February 1993 he had again been arrested and detained for 12 days together with 14 or 15 others following a meeting. Subsequently, in reply to the Directorate of Immigration’s query, he submitted that the correct date was 31 July 1992, that he had fled from Pakistan in the autumn of 1992 and that he had been returned to Pakistan in 1996. He explained that he had given the Finnish immigration police an incorrect date because he had wanted to conceal his stay in Hong Kong, fearing that he would be sent back. He had been ill-treated like at the time of his earlier arrest (before the Directorate of Immigration he submitted that his family had been harassed and that he had regained his liberty thanks to the payment of bribes by his relatives to the authorities). On 30 March 1996 he had been arrested and detained for 10 days together with 41 others following a demonstration. This time they had been treated properly. No charges were brought in respect of any of the arrests.
Before the Directorate of Immigration the applicant argued that his previous activities in favour of an independent Kashmir endangered his life. He submitted a brochure, photographs and a video cassette concerning his involvement in JKLF’s meetings and demonstrations. He also alleged that there had been an attempt to shoot his brother on 24 October 1996.
The Directorate of Immigration received an opinion from the Alien’s Ombudsman (ulkomaalaisvaltuutettu, utlänningsombudsmannen), who considered that the applicant was in need of protection in his capacity as an independence fighter.
Directorate of Immigration’s decision
On 14 June 1999 the Directorate of Immigration refused the applicant asylum and a residence permit, ordered his expulsion to Pakistan and issued a refusal of entry notice against him. It noted that his identity had not been confirmed and that he had given contradictory statements as to his identity, his stay in Hong Kong and his travel routes, which affected his credibility. He had concealed the fact that he had left Pakistan for the first time in 1992 and that he had appeared in Hong Kong under a different name and as being of a different age. UNCHR had not confirmed the alleged application for asylum in Hong Kong.
The Directorate of Immigration did not question his alleged activities within JKLF. However, according to the photographs and the video cassette which the applicant had submitted, he had been able to spread the organisation’s message without the authorities interfering. No charges had been brought against him and the arrests had not only concerned the applicant. Moreover, they had been of relatively short duration. The applicant had not outlined the alleged harassment by the other political parties and the Pakistan Secret Police. It was not credible that he had left Pakistan using his own passport and had received a new passport from the Pakistan embassy in Hong Kong without any difficulty. The mere fact that he had been involved in JKLF activities and the situation in Pakistan were not a sufficient ground for granting the applicant asylum. Having regard to all the circumstances the Directorate found that he had no reason to fear persecution.
Helsinki Administrative Court’s decision
On 26 May 2000 the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), having held an oral hearing on 10 April 2000, rejected the applicant’s appeal. It considered that his changing story as to the arrests and his stay in Hong Kong affected his credibility. As to his role in JKLF, it noted that one of the photographs submitted had been taken in November 1997 and thus at a time when he was already in Finland. It considered his story contradictory and his identity unclear. It further found that he had not presented any credible evidence that the Pakistani authorities would take a special interest in him. The situation in Pakistan as such did not warrant the conclusion that he needed protection.
He requested leave to appeal, also relying on family ties since he had married a Finnish citizen on 16 October 2000 and had worked for the same employer since 2 November 1998. He also relied on his allegedly bad health.
Supreme Administrative Court’s decision and subsequent events
On 21 June 2001 the Supreme Administrative Court quashed the decision insofar as it concerned the expulsion order and the refusal of entry. It considered that the fact that he had been living in Finland since 1997, had married a Finnish citizen in 2000 and had worked there since 1998, taken together with the disturbed situation in Kashmir and his activities within JKLF, warranted the conclusion that he should not be removed.
The Supreme Administrative Court remitted the case to the Directorate of Immigration, which on 19 July 2001 granted him a residence permit, valid until 19 July 2002.
On 4 March 2002 he was granted an alien’s passport, valid until 27 February 2003.
On 18 November 2004 the applicant again applied for asylum.
2. Application for a further residence permit
Helsinki police department’s decision
On 4 September 2002 the Helsinki police department refused the applicant’s application for a further residence permit and the renewal of his alien’s passport on the ground that the Finnish Security Police (suojelupoliisi, skyddspolisen) did not support the application. The police reached its decision without providing the applicant with an opportunity to respond to the Security Police’s written opinion.
He appealed, requesting that the Security Police be ordered to supplement their written opinion so that he could understand why they did not support his application. He also requested an oral hearing. Further, he argued that he fulfilled the requirements laid down by the Alien’s Act as he was married to a Finnish citizen, had been living in Finland for over five years and had not committed any offences.
Helsinki Administrative Court’s decision
The Helsinki Administrative Court obtained the Security Police’s observations, which indicated that their prevention of terrorism branch considered the applicant a threat to national security. For the same reason the Security Police could not reveal the contents of the information they had received. The opinion was based on information received through international intelligence and concerned the applicant’s previous activity and background.
The Administrative Court also obtained the Data Protection Ombudsman’s (tietosuojavaltuutettu, dataombudsmannen) opinion. On 27 March 2003 the Ombudsman had reviewed the lawfulness of the information-gathering procedure as applied to the applicant and he had no remarks to make on the matter. Having first noted that his office was unable to trace the chain of intelligence back to its source, he found that the relevant information had been received from a State which could be presumed to observe corresponding principles for processing personal data and, more specifically, from an authority of approximately the same status as the Finnish Security Police. The obtaining of the information about the applicant and the conclusions drawn from that information could not be considered to be in breach of good data protection practices. The information obtained had been based on personal data received from the applicant himself. The time that had passed since the information had been fed into the system was not so long as to warrant the conclusion that it should be erased.
In his observations in reply the applicant argued that he had still not received sufficient information to enable him to produce counter-evidence in order to dispel the unfounded suspicions. Therefore, he requested an oral hearing so that a representative of the Security Police could be heard.
On 27 October 2003 the Administrative Court, finding an oral hearing unnecessary as the Security Police had been allowed to give a written statement and there was no reason to hear their representative as a witness, rejected the appeal. It endorsed the finding of the police department that the Security Police considered the applicant a threat to State security. It also noted that the Data Protection Ombudsman had no objections as to the lawfulness of the procedure. No ordinary appeal lay against the court’s decision.
On 20 January 2004 the applicant lodged an application for an annulment, which was dismissed by the Supreme Administrative Court on 2 May 2006.
Fresh application for a further residence permit
On 20 September 2004 the applicant again applied for a further residence permit, which was refused by the Directorate of Immigration on 12 October 2004. He appealed.
Directorate of Immigration’s decision
Meanwhile, on 6 March 2003 the Helsinki police department proposed to the Directorate of Immigration that the applicant be deported.
In a fresh written opinion of 1 September 2004 the Security Police still considered the applicant a threat to national security.
On 29 September 2004 the Directorate of Immigration ordered the applicant’s deportation to Pakistan and issued a refusal of entry notice against him until further notice. Referring to the Supreme Administrative Court’s decision of 21 June 2001 it noted that the political situation in Pakistan had changed since 2001 and that JKLF’s supporters were not subjected to human rights violations for the moment. While it was true that the Pakistani Government did not accept the goals of JKLF, their members were not subjected to persecution. On the contrary, according to the information available a dialogue was taking place between the Pakistan Ministry of Foreign Affairs and JKLF.
Therefore, the Directorate considered that the applicant would not be subjected to treatment in violation of Article 3 of the Convention. As to the right to respect for family life as guaranteed by Article 8, it noted that the applicant and his wife had enjoyed family life for almost four years. However, the right to respect for family life was not an absolute one. In the present case, the threat to national security justified the interference.
In August 2005 the applicant lodged an appeal with the Helsinki Administrative Court.
4. The proceedings before the Court and subsequent events
On 14 September 2005 the Court decided to give notice of the present application to the Government of Finland.
On 3 January 2006 the Directorate of Immigration granted the applicant asylum (refugee status) and a residence permit in accordance with section 87 of the Alien’s Act (Act no. 301/2004). It also found that he fulfilled the requirement for a residence permit based on the fact that he is a family member of a Finnish citizen.
On 27 October 2006 the Helsinki Administrative Court quashed the deportation order of 29 September 2004. Insofar as the applicant had appealed against the decision of 12 October 2004 to refuse him a further residence permit it found that he did not require legal protection given the fact that he had been granted asylum and a residence permit on 3 January 2006.
On 29 November 2006 the applicant sought leave to appeal, requesting that he be provided with the information underlying the afore-mentioned Security Police’s written opinion. The case is still pending before the Supreme Administrative Court.
B. Relevant domestic law and practice
Asylum and need for protection
Section 87 (1) of the Alien’s Act provides that aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country.
Asylum is not granted to aliens if they have committed, or if there are reasonable grounds to suspect that they have committed, a crime against peace, a war crime or, a crime against humanity as defined by international agreements concerning such crimes, a serious non-political crime outside Finland before entering Finland as refugees or an act which violates the aims and principles of the United Nations (subsection 2). Asylum is not granted to persons who are eligible for protection or help from bodies or offices of the United Nations other than the United Nations High Commissioner for Refugees. Once such protection or help has ceased without final regulation of the status of the person in accordance with the valid resolutions adopted by the United Nations General Assembly, the person is entitled to refugee status. If the person has voluntarily relinquished the protection mentioned above by leaving the safe area for reasons other than those related to a need for protection, his or her right of residence is examined under this Act (subsection 3).
Section 88 provides that aliens residing in the country are issued with a residence permit on the basis of a need for protection if the requirements for granting asylum under section 87 are not met but the aliens are in their home country or country of permanent residence under the threat of death penalty, torture or other inhuman treatment or treatment violating human dignity, or if they cannot return there because of an armed conflict or environmental disaster. Aliens are not issued with a residence permit on the basis of a need for protection if they have committed, or if there are reasonable grounds to suspect that they have committed, an act as referred to in section 87(2).
There are fixed-term and permanent residence permits. A fixed-term permit is issued for residency of a temporary nature (a temporary residence permit) or for residency of a continuous nature (a continuous residence permit). Permanent permits are valid until further notice (section 33).
An initial fixed-term residence permit is issued for a maximum period of one year (section 53, subsection 1).
1. The applicant complained under Articles 1, 2, 3 and 5 of the Convention that his life and liberty will be endangered if expelled.
2. He also complained, in substance, that his deportation would harm his family life as he is married to a Finnish citizen.
3. Lastly, he complained, under Article 13 in substance, that he has not been informed why he was considered a threat to national security. He has not therefore been able to produce counter-evidence with a view to dispelling the unfounded suspicions against him. He also relied on Articles 6 § 1 and 8 of the Convention.
The applicant complained principally of the initial refusal to allow him to reside in Finland and the conduct of the relevant proceedings. Following the Directorate of Immigration’s decision to grant him asylum and a residence permit he submitted that he wished to maintain his application, considering that the alleged violations had not been made good by that decision since it had been rendered only after this Court had given notice of the application to the Government of Finland.
The Court notes that the applicant has now been granted asylum and that he is no longer subject to an expulsion order. In these circumstances, and having regard to Article 37 § 1 (b) of the Convention, the Court is of the opinion that the matter giving rise to the complaint can now be considered to be “resolved” (see Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 97 and 103, ECHR 2007-). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of this part of the application to be continued.
Insofar as the applicant complained that he had been refused information underlying the Security Police’s written opinion, the complaint is premature since it is still pending before the Supreme Administrative Court. The complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Finds that the matter giving rise to the applicant’s asylum complaints has been resolved and decides to strike the application out of its list of cases in so far as it relates to those complaints and to declare the remainder of the application inadmissible.
T.L. Early Nicolas Bratza
Q v. FINLAND DECISION
Q v. FINLAND DECISION