Application No. 25057/94
by K. and I.S.
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 5 March 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 August 1994 by
K. and I.S. against Finland and registered on 1 September 1994 under
file No. 25057/94;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 11 January 1995 and the observations in reply submitted
by the applicants on 3 February 1995, the Government's additional
observations of 14 June 1995 and the applicants' additional
observations of 18 August 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are husband and wife, born in 1967 and 1961,
respectively. The first applicant is a Nigerian citizen and a
technician by profession. The second applicant is a Finnish citizen on
early retirement. The applicants are resident in Helsinki. They are
represented by Ms. Johanna Ojala, a lawyer practising in Helsinki.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 8 March 1993 the first applicant was granted a visa to
Finland. It was valid from 10 to 12 March 1993 and was issued for the
purpose of his business negotiations. He entered Finland on
11 March 1993. On 13 March 1993 he requested asylum and a residence
permit. In this connection he claimed to have lost his passport after
his arrival in the country. On 8 June 1993 the Aliens Centre
(ulkomaalaiskeskus, utlänningscentralen) of the Ministry of the
Interior (sisäasiainministeriö, inrikesministeriet) rejected his
request.
On 16 June 1993 the applicants contracted marriage. The first
applicant subsequently lodged a fresh request for a residence permit,
referring to his marriage. On 29 September 1993 the Aliens Centre
rejected his request, considering that he had submitted incorrect
information in his previous visa and asylum requests. The Centre also
found that his fresh request should have been lodged from abroad.
On 12 November 1993 the Aliens Centre ordered the applicant's
expulsion, but did not prohibit him from re-entering Finland. On
20 December 1993 he left Finland for Nigeria, where he, on
22 December 1993, lodged a fresh request for a residence permit in
Finland. In support of the request lodged with the Finnish Embassy he
submitted, inter alia, a medical report showing that the second
applicant had been suffering from schizophrenia since the 1970's. She
had been hospitalised on more than ten occasions and was in need of
continuous support. The first applicant also referred to an undertaking
by the second applicant to be financially responsible for his stay in
Finland.
On 28 February 1994 the Aliens Centre issued a negative opinion
concerning the request, following which it was rejected by the Embassy
in March 1994. No appeal lay against the decision.
On 31 March 1994 the Aliens Ombudsman (ulkomaalaisvaltuutettu,
utlänningsombudsmannen) requested the Aliens Centre to reconsider the
first applicant's request. The Aliens Ombudsman invoked fresh medical
evidence of 24 March 1994 according to which the separation of the
applicants had had a deleterious effect on the second applicant's
health. She was rather dependent on the first applicant and following
his return to Nigeria she had again been hospitalised. No action was
taken in response to the request.
In a further petition of 27 April 1994 lodged with the Ministry
for Foreign Affairs the first applicant demanded that the Embassy's
refusal of his request be reconsidered or at least that he would be
given a decision in writing. No action was taken.
On 3 August 1994 the first applicant lodged a further request for
an annulment of the Embassy's refusal and a reconsideration of his
request. He underlined that no written decision had been made and that
he had not been informed of the reasons for the Embassy's refusal. He
had furthermore not been heard either in regard to the Aliens Centre's
negative opinion of 28 February 1994 or in any other respect prior to
the Embassy's refusal.
On 19 August 1994 the second applicant obtained a copy of the
Aliens Centre's negative opinion of 28 February 1994 which read in
extenso:
(translation)
"The permit for entry and residence is opposed, also
because of the serious mental health problems of [the
second applicant]."
On 19 August 1994 senior officials of the Ministry of the
Interior undertook to recommend the issuing of a residence permit to
the first applicant. The Aliens Centre subsequently issued an opinion
favouring the granting of a residence permit, having regard to, inter
alia, the medical report of 24 March 1994 concerning the second
applicant's mental health.
On 23 August 1994 the Embassy granted the first applicant a
one-year renewable residence permit valid as from 26 September 1994 on
the grounds of his marriage to the second applicant. On 18 October 1994
the first applicant re-entered Finland.
COMPLAINTS
1. The applicants complain that the Embassy's refusal to issue the
first applicant with a residence permit violated their right to respect
for their private and family life. They underline that the second
applicant was unable to follow the first applicant to Nigeria or
elsewhere due to her state of health which necessitates psychiatric
treatment in Finnish. They invoke Article 8 of the Convention.
2. The applicants also complain that the Embassy's refusal to issue
the first applicant with a residence permit discriminated against them,
given that the second applicant's health constituted the only specific
ground for rejecting his request. They invoke Article 14 of the
Convention in conjunction with Article 8.
3. The applicants furthermore complain that their forced separation
on account of the Embassy's refusal effectively prevented them from
founding a family and thereby violated their rights under Article 12
of the Convention.
4. In their submissions of 3 February 1995 the applicants finally
complain that the Embassy's refusal also subjected them to inhuman and
degrading treatment contrary to Article 3 of the Convention. This
treatment was also discriminatory, contrary to Article 14 read in
conjunction with Article 3.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 August 1994 and registered
on 1 September 1994.
On 30 November 1994 the Commission (First Chamber) decided to
communicate the application to the respondent Government, pursuant to
Rule 48 para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
11 January 1995. The applicants replied on 3 February 1995.
On 28 February 1995 the Commission granted the applicants legal
aid.
Additional observations on the admissibility and merits of the
case were submitted by the Government on 14 June 1995 and by the
applicants on 18 August 1995.
REASONS FOR THE DECISION
The applicants complain that the Embassy's refusal to issue the
first applicant with a residence permit violated their right to respect
for their private and family life, discriminated against them,
prevented them from founding a family and subjected them to inhuman and
degrading treatment. They invoke Articles 3, 8, 12 and 14 of the
Convention.
The Government principally submit that the application should be
struck off the Commission's list of cases in pursuance of Article 30
para. 1 of the Convention, since the first applicant has now been
granted a residence permit in Finland and it is no longer justified to
continue the examination of the case.
The applicants oppose a strike-off, since the granting of a
residence permit in August 1994 did not repair the violations of the
Convention resulting from the Embassy's refusal of March 1994. Also
general considerations speak against a strike-off, considering the
questionable practice of the Finnish aliens authorities in cases
concerning the right to respect for family life.
The Commission notes that, on 12 November 1993, the first
applicant was ordered to be expelled from Finland. Having left the
country on 20 December 1993, he requested the Finnish Embassy in
Nigeria to issue him with a residence permit. This request was
eventually granted on 23 August 1994 and on 18 October 1994 the first
applicant re-entered Finland, where he appears to have joined the
second applicant.
In these circumstances the Commission considers that the
Convention issues underlying the present application have been resolved
within the meaning of Article 30 para. 1 (b) of the Convention. The
Commission furthermore finds no special circumstances regarding respect
for Human Rights, as defined in the Convention, which would require a
further examination of the application.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy