FOURTH SECTION
DECISION
Application no. 74606/11
E.O.
against Finland
The European Court of Human Rights (Fourth Section), sitting on 16 September 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 5 December 2011,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr E.O., is a Nigerian national, who was born in 1979. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms Maria Flygare, a lawyer practising in Helsinki.
2. 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
3. The facts of the case, as submitted by the parties, may be summarised as follows.
Account of the events provided by the applicant
4. The applicant is an Urhobo by ethnic origin and he originates from the Warri area in the Delta region in Nigeria. In 2005 the UNHCR granted him refugee status. According to the applicant, he left Nigeria because he was being persecuted by the members of a large ethnic group called Itsekiri. The applicant’s father was a leader of the Urhobo tribe. In 2000 he and the applicant’s two brothers were killed in revenge for their position in the tribe. Later the members of the Itsekiri tribe were looking for the applicant in order to kill him also, and they burned down his shop. The applicant fled with his Nigerian passport through Benin and India to Thailand where he applied to the UNHCR for asylum.
Domestic proceedings
5. The applicant was granted refugee status in Thailand by the UNHCR. On 14 June 2005 he arrived in Finland as an emergency mandatory refugee. He had refugee status in Finland. His latest residence permit expired on 28 April 2009 after which he was not granted a new residence permit.
6. On 5 May 2009 the Turku District Court (käräjäoikeus, tingsrätten) convicted the applicant on three counts of aggravated drugs offences and sentenced him to three years and six months’ imprisonment. On 19 November 2009 the Turku Appeal Court (hovioikeus, hovrätten) upheld the District Court judgment. This judgment is apparently final.
7. The applicant was sent to serve his sentence in Kerava prison.
8. On 7 December 2009 the Helsinki Police Department (Helsingin poliisilaitos, Helsingfors polisinrättning) made a proposition to the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) that the applicant be removed from Finland as he had been found guilty of several aggravated drugs offences.
9. On 8 July 2010 the Immigration Service decided to lift the applicant’s refugee status and ordered his removal to Nigeria immediately upon his release from prison. The Service found that the applicant had by his actions endangered public order and safety, and that he was no longer in need of humanitarian protection. The events on the basis of which he had been granted refugee status by the UNHCR had taken place in 2000 but the applicant had left Nigeria only three years later in 2003. The Urhobo tribe was the main tribe in the applicant’s home region, and according to his own account of the events neither the applicant nor his family had ever experienced any persecution by the Nigerian authorities. The applicant’s account of the events, which took place in 2000, was contradictory and he had never submitted any proof of the alleged persecution. He had also provided conflicting information to the UNHCR about the faith of his mother and sister even though he had visited the latter in December 2008 in Benin. The applicant’s mother still lived in Nigeria and he was in regular contact with her. Since 1999, Nigeria had been a multiparty democracy. There was no acute security crisis in Nigeria, and the Delta region especially had benefited from active measures taken by the President of the country who had granted an amnesty to the militants in that region in 2009. Violence in that region had been decreasing ever since. Had the applicant had any trouble with the Itsekiri tribe, he could have turned to the Nigerian authorities for protection. The applicant had no ties to Finland. Of the five years he had spent in Finland, most of the time he had been either in pre‑trial detention or serving his sentence in prison. The Service found that the applicant could be removed to Nigeria without any risk of being subjected to inhuman or degrading treatment by the Nigerian authorities.
10. By letter dated 11 January 2010 the applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the Immigration Service’s decision be quashed because the circumstances which had led to the granting of refugee status still persisted.
11. On 13 November 2010 the applicant was released from prison.
12. On 29 September 2011 the Administrative Court upheld the decision of the Immigration Service. In its decision the Administrative Court noted that first of all, when heard again by the Immigration Service in 2009, the applicant’s story differed from the original asylum claim made in 2005. Secondly, according to his more recent story, the applicant had resided safely in Nigeria for at least two years after the incidents in which his family members had been killed. These inconsistencies reduced the credibility of his account. Furthermore, the court noted that the applicant had not been politically, socially or religiously active, nor had he had any problems with the Nigerian authorities.
13. By letter dated 9 November 2011 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) requesting, inter alia, a stay on removal to Nigeria.
14. The Supreme Administrative Court did not grant a stay on removal.
15. On 5 December 2011 the applicant lodged an application with the Court, requesting that his removal to Nigeria be stayed. On 8 December 2011 the Court indicated an interim measure under Rule 39 of the Rules of Court and held that the applicant should not be removed to Nigeria until further notice. After communication and at the request of the Government, the proceedings before the Court were stayed pending the delivery of the final domestic decision in the case.
16. On 2 December 2013 the Supreme Administrative Court granted the applicant leave to appeal, examined the matter and upheld the Administrative Court’s decision. It found that the situation in the Delta region in Nigeria had substantially and permanently changed since the applicant had come to Finland. Although there were still some ethnic conflicts in the area, they did not as such justify granting international protection. The applicant had fled his country of origin because of conflicts between different tribes but he had not sought protection from the Nigerian authorities. After the death of his family members, the applicant had still resided in the area and even travelled within the country and abroad. He had close relatives in Nigeria. There were thus no such personal circumstances which would have put the applicant at risk of torture or inhuman and degrading treatment, or which would have allowed him to refuse the protection offered by his country of origin. Moreover, the applicant had committed aggravated drug offences and had been sentenced to imprisonment. He had not established any close ties to Finland during his stay there. The applicant’s appeal was therefore rejected.
B. Relevant domestic law
Constitution of Finland
17. According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.
Aliens Act
18. Section 107 of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004, as amended by Act no. 323/2009) provides that
“[a] person’s refugee status is withdrawn if he or she
1) voluntarily re-avails him or herself of the protection of his or her country of nationality;
2) having lost his or her citizenship, regains it of his or her own free will;
3) acquires citizenship of another State and may avail him or herself of the protection of the new country of nationality;
4) voluntarily settles in the country from which he or she fled and outside which he or she stayed for fear of persecution; or
5) is manifestly no longer in need of protection as the circumstances under which he or she became a refugee no longer exist.
A person’s subsidiary protection status is withdrawn if the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required.
The change of circumstances referred to in subsection 1(5) and subsection 2 must be significant and non-temporary.
When considering a withdrawal of refugee status or subsidiary protection status, an individual investigation shall be conducted.”
19. According to section 148, subsection 1 (2) of the same Act (as amended by Act no. 358/2007), an alien who has resided in Finland under a residence permit may be deported if he or she is found guilty of an offence carrying a maximum sentence of imprisonment for a year or more, or if he or she is found guilty of repeated offences.
C. Relevant international law and materials
20. Finland has ratified the 1951 Geneva Convention relating to the Status of Refugees and the 1967 Protocol thereto. A "refugee" is defined by Article 1 of the Geneva Convention as a person who is outside the country of his nationality due to "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion".
21. According to the 2012 Human Rights Report on Nigeria by the United States Department of State,
“[m]ost militant groups in the Niger Delta accepted then president Yar’Adua’s offer of amnesty in 2009, and the overall level of violence there declined.”
22. Human Rights Watch noted in its World Report 2013 that
“[t]he federal government’s 2009 amnesty program — which saw some 26,000 militants, youth, and gang members surrender weapons in exchange for amnesty and monthly cash stipends — has reduced attacks on oil facilities in the Niger Delta.”
23. According to World Report 2014 by Human Rights Watch,
“[p]overty and corruption continued to afflict the oil-rich Niger Delta, while the weakness of anti-corruption institutions in government inhibited the realization of social and economic rights and the fair and transparent functioning of the public and private sectors.
...
The federal government’s 2009 amnesty program — which saw some 26,000 militants, youth, and gang members surrender weapons in exchange for amnesty and monthly cash stipends — have reduced attacks on oil facilities in the Niger Delta. The government has doled out these financial incentives — some US$ 400 million annually — from the additional oil revenue accruing to government following the amnesty, but has still not addressed the region’s underlying causes of violence and discontent, such as poverty, public sector corruption, environmental degradation from oil spills, and impunity for politically sponsored violence. In June, the government announced 2015 as the terminal date for the program and acknowledged that its inability to secure jobs for the trained ex-militants or implement an orderly exit strategy may portend more danger for the region.”
COMPLAINTS
24. The applicant complained under Article 3 of the Convention about the poor security situation in Nigeria, especially in the Delta region and the Warri area in general. He complained that his personal circumstances would, together with the security situation in Nigeria, put him at real risk of ill-treatment if returned to Nigeria. His personal situation had not changed since the moment when he had been granted asylum, and thus the same grounds of well-founded fear of persecution were still as valid as at the time of his asylum application. The cancelling of his refugee status would require that the circumstances under which he was considered a refugee would have manifestly and permanently ceased to exist, which according to him was not the case. He still feared persecution by the Itsekiri tribe which governed the administrative structures in the Warri area and was supported by the Nigerian Government.
25. Furthermore, the applicant complained under Article 13 of the Convention that he should have had an effective remedy to pursue his case in Finland until a final decision had been reached in his case.
THE LAW
A. Complaint under Article 3 of the Convention
26. The applicant complained that he risked being subjected to treatment contrary to Article 3 of the Convention if removed to Nigeria.
27. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
28. The Government noted that the applicant had arrived in Finland in 2005 as an emergency mandatory refugee proposed by the UNHCR. The Government’s decision to receive him had been based solely on documents. The applicant had been granted refugee status and the first continuous residence permit in 2005 which had then later been extended. According to the Alien’s Act, a refugee holding a residence permit could be deported if he or she were found guilty of an offence carrying a maximum prison sentence of a year or more, or if she or he were found guilty of repeated offences. However, a refugee could not be deported to his or her home country against which he or she still needed international protection. The matter was thoroughly examined by the Immigration Service and the domestic courts, which also examined whether there existed possibilities of granting a residence permit on other grounds. By interviewing the applicant in person, the Immigration Service had ascertained that there were no personal grounds that might put him at risk of persecution or entitle him to refuse the protection of the country of his nationality.
29. The Government observed that the applicant’s home country could not be considered so unsafe that he could not return there. Since 1999 Nigeria had been a multiparty democracy but democratic development had been slow and difficult. The human rights situation in Nigeria showed serious problems but there was no sign of determinate persecution by the State against any particular groups. Nothing indicated that citizens could not turn to the authorities for security and protection against threats from non‑governmental actors. Especially in the Delta region, active measures had been taken since 2007 to maintain the ceasefire and since 2009 an amnesty had been offered to those militants who gave up fighting. Both Human Rights Watch and the United States Department of State had noted that violence had decreased in the Delta region. The Government noted that, after the delivery of the domestic decisions, the situation in Nigeria had not changed in a manner that would affect the applicant’s personal situation.
30. The Government maintained that the applicant had fled his country of origin because of the violence between tribes but that he had never turned to any authorities for protection against this threat from private actors. After his family members had been killed, the applicant had remained in his home region for a long time, and he had travelled within the country and also abroad. The applicant had not provided any evidence to show that he was of any particular interest to the Nigerian authorities. He had not been politically, socially or religiously active. Nor had the applicant claimed to have any family ties to Finland but had close relatives in Nigeria, including his mother. The applicant’s case differed from that of Ahmed v. Austria in which the decision to withdraw the applicant’s refugee status was made solely due to his criminal conviction and the consequences of the expulsion for the applicant were not taken into account. In the present case, the Finnish authorities did not find any grounds to show that the applicant would face a real risk of being treated in a manner referred to in Article 3 of the Convention if removed to Nigeria.
31. The applicant claimed that his deportation would be against the domestic law. The Finnish authorities had not carried out a detailed investigation as required by the Aliens Act, and therefore the applicant had the right to retain his refugee status. His criminal conviction should have been weighed against his fear of persecution in his country of origin but this had clearly not been done, although required by domestic law. The circumstances in Nigeria had not changed, nor had a significant and permanent improvement of the situation in the Delta District been shown, as was required also by EU law.
32. The applicant claimed that the domestic authorities had not applied Article 3 of the Convention correctly. The main focus in the applicant’s case had been on his criminal convictions. Contrary to the Government’s statement, the applicant had been threatened in Nigeria by Itsekiri who had a strong position in the Delta area. As severe corruption was rife amongst Nigerian officials, this rendered irrelevant the Government’s assertion that the applicant had never shown any evidence of incidents against the Nigerian authorities.
33. The applicant maintained that, even though the Urhobo tribe might not be systematically threatened or discriminated against, his position was not similar to that of ordinary Urhobos as his father had been a notable Urhobo figure. The applicant did not live safely in Nigeria after the problems started but was in hiding and living in fear. His sister had not been able to return to Nigeria but lived in Benin. The applicant had not given the Finnish authorities any reasons to question the veracity or credibility of his submissions. The death of his father and brothers should suffice as evidence of possible ill-treatment.
34. The applicant argued that it had not been shown in any way that the circumstances relating to his persecution or reasons for fear had changed drastically. The only reason behind the withdrawal of refugee status and the deportation to Nigeria had been his criminal conviction. After being released from prison in 2010, the applicant had not participated in any kind of criminal activity. His case was similar to that of Ahmed v. Austria in which the consequences of the expulsion were not taken into account. Both the Finnish authorities and the courts had neglected their responsibility to examine thoroughly the risks relating to the applicant’s deportation to Nigeria. Because of the tribe-based municipalities, the applicant would not rely on relocation as an option in Nigeria. He had established particular ties to Finland because he had been residing there since 2005, had formed significant personal relationships and had gained a profession there. He had obtained a Bachelor’s Degree in health care and social services in late 2012 and had even been offered work which he had been forced to decline due to his current situation. The applicant would thus face a real risk of being treated in a manner referred to in Article 3 of the Convention if removed to Nigeria.
35. The Court notes that, according to sections 107 and 149 of the Aliens Act, a refugee holding a residence permit can be deported if he or she is found guilty of an offence carrying a maximum prison sentence of a year or more, or if she or he is found guilty of repeated offences. However, a refugee cannot be deported to his or her home country against which he or she still needs international protection. The change of circumstances must be significant and non-temporary.
36. The Court observes that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑XII). This right must also be considered to include the right to decide whether refugee status may be lifted in cases in which a person is no longer in need of international protection and, consequently, the right to deport such a person. However, such a decision by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008).
37. The Court notes that, in the present case, it is called to examine both whether the current situation in Nigeria is such that the applicant’s refugee status could be lifted on that ground, and whether he could be deported to Nigeria. Both of these issues thus involve an examination of the existence of a risk of ill-treatment in Nigeria.
38. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Nigeria, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108).
39. The Court notes that the Government argued that the general human rights situation in Nigeria was not of such a nature as to show, on its own, that there would be a violation of the Convention if the applicant were to return to that country. The applicant disagreed with the Government, claiming that the circumstances in Nigeria have not changed, nor has a significant and permanent improvement of the situation in the Delta District become apparent.
40. The Court notes that several independent sources have considered that violence has decreased in the Delta region since the ceasefire in 2007 and the granting of an amnesty in 2009. According to the Immigration Service and the Government, Nigeria has been a multiparty democracy since 1999. It is on the path of democratic development, although progress has been slow and difficult. The Court thus agrees with the Government and the Supreme Administrative Court that the general human rights situation in Nigeria has significantly and permanently improved. However, the Court still has to establish whether the applicant’s personal situation is such that his return to Nigeria would not contravene Article 3 of the Convention.
41. The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007; and Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005; N.A. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008; and R.C. v. Sweden, no. 41827/07, § 50, 9 March 2010). Where such evidence is adduced, it is for the Government to dispel any doubts about it.
42. The Court observes that the Government as well as the domestic authorities and courts have questioned the applicant’s credibility and pointed to certain inconsistencies in his story. As noted by the Administrative Court, the applicant’s story as heard by the Immigration Service in 2009, differed from the original asylum claim made in 2005. According to his more recent story, the applicant had resided safely in Nigeria for at least two years after the incidents in which his family members were killed. The Administrative Court found that these inconsistencies reduced the credibility of the applicant’s account. The Court acknowledges that it is often difficult to establish, precisely, the pertinent facts in cases such as the present one. However, it accepts that, as a general principle, the national authorities are best placed to assess not just the facts but, more particularly, the credibility of witnesses since it is they who have had an opportunity to see, hear and assess the demeanour of the individual concerned.
43. As to the personal circumstances of the applicant, the Court therefore shares the Government’s view that the applicant has not shown any reason or provided any evidence why the Nigerian authorities would have a particular interest in him or why he would not obtain protection from the Nigerian authorities if needed. It is established that the applicant has not been politically, socially or religiously active in Nigeria. The Court finds that, in such a situation, the applicant should have turned in the first place to the Nigerian authorities for protection against threats by private individuals.
44. Moreover, the Court notes that it has not been disputed that the applicant remained in his home region for several years after his family members were killed. He was able to travel within the country and also abroad. In addition, the Urhobo tribe is the main tribe in the applicant’s home region, and, as the applicant himself maintained, the Urhobo tribe has not been systematically threatened or discriminated against.
45. The Court also accepts the Government’s view that the applicant did not seem to have any close ties to Finland. Even though the applicant has been staying in Finland since 2005, he has spent most of this time either in pre-trial detention or serving his sentence in prison. Instead, the applicant appears to have closer ties to Nigeria as he has close relatives in Nigeria, including his mother. On the basis of the above facts, the Court finds that there are no such personal circumstances which would put the applicant at risk of treatment contrary to Article 3 of the Convention if removed to Nigeria.
46. The Court notes that it is clear on the basis of the domestic law that a refugee could be deported if he or she were found guilty of an offence carrying a maximum prison sentence of a year or more. The applicant was convicted on three counts of aggravated drugs offences and sentenced to three years and six months’ imprisonment. His refugee status could therefore be lifted on that ground, provided that there has been a significant and non‑temporary improvement of the situation in Nigeria. On the basis of the above analysis, both the general situation in Nigeria and the applicant’s personal circumstances there are such that they do not prevent his removal to Nigeria. It must thus be considered that there has been such a significant and non-temporary improvement of the situation in Nigeria that the Finnish authorities could proceed to lift the applicant’s refugee status and to order his deportation to Nigeria.
47. In this context the Court notes that both the Government and the applicant referred to the case Ahmed v. Austria in which the applicant’s refugee status was lifted solely due to his criminal conviction (see Ahmed v. Austria, 17 December 1996, § 42, Reports of Judgments and Decisions 1996‑VI). The Court agrees with the Government that the present case differs from that of Ahmed v. Austria as the consequences of the applicant’s expulsion to Nigeria were clearly part of the evaluation conducted by the domestic authorities and courts. The assessment by the domestic authorities and courts was thorough, containing also the applicant’s interview. According to Finnish law, lifting refugee status is not even possible without proper assessment of its consequences for the refugee in question. Moreover, in the present case, other grounds for issuing a residence permit were also examined by the domestic authorities but no such ground was found.
48. Having regard to all of the above, the Court concludes that there are no substantial grounds for believing that the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if deported to Nigeria in the current circumstances. Accordingly, the complaint under Article 3 of the Convention must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
49. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
B. Remainder of the application
50. The applicant also complained under Article 13 of the Convention that he should have had an effective remedy to pursue his case in Finland until a final decision had been reached.
51. In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application must also be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Decides to strike the application out of its list of cases.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy