FOURTH SECTION
DECISION
Application no. 10939/07
by Ekaterina KHIRVONEN
against Finland
The European Court of Human Rights (Fourth Section), sitting on 29 April 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 5 March 2007,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
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
The applicant, Ms Ekaterina Khirvonen, is a Russian national who was born in 1927 and lives in Kanteenmaa. She was represented before the Court by Ms Merja Annala, a lawyer practising in Tampere. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s husband was of Finnish origin (“Ingrian Finnish”). They lived in Russia in the same household as their two sons and their families until the death of her husband in 1989. The applicant then lived with her son V. In 1999 V. emigrated to Finland and the applicant stayed in their house with V.’s son R. In 2003 R. also moved to Finland. On an unknown date her second son N. emigrated to Finland.
In March 2004 the applicant suffered a stroke and she became partially paralysed. The following year her house was sold.
On 26 November 2005 the applicant entered Finland to visit her sons, who had now been granted permanent residence permits. She had a visa allowing her to stay in Finland for 90 days.
On 2 February 2006 she applied for a residence permit on the ground that her sons and their families lived permanently in Finland. She also referred to her deteriorating health and poor living conditions in Russia.
The Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) rejected her application on 10 March 2006. She was ordered to be deported. The Directorate of Immigration found that the applicant could not stay in Finland because she was not her sons’ family member within the meaning of section 37 of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004). Nor could she be granted a permanent residence permit issued to a family member in accordance with section 50 of the said Act, as her sons were not Finnish citizens. Finally, the Directorate of Immigration considered that the applicant’s health was not a special reason entitling her to a temporary residence permit under section 45 of the Act.
In her appeal to the Hämeenlinna Administrative Court (hallinto-oikeus, förvaltningsdomstolen) the applicant claimed that the refusal to grant her a permanent residence permit was unreasonable having regard to her vulnerable position. Alternatively, she should be granted at least a temporary residence permit. Given her health, she alleged that she could not live alone. She submitted that all her relatives, that is, both her sons and their families, lived in Finland, where they had permanent employment. V.’s wife had even been granted Finnish citizenship. Her sons took care of her living expenses. She submitted two doctors’ opinions in support of her case.
On 20 June 2006 the Administrative Court quashed the decision, stating that the applicant should have been granted a temporary residence permit. The court based its decision on section 45, subsection 1(4) and section 49, subsection 1(4) of the Aliens Act.
The Directorate of Immigration sought leave to appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings- domstolen), alleging that the Administrative Court had misapplied the Aliens Act.
On 25 January 2007 the Supreme Administrative Court granted leave to appeal, examined the application and quashed the Administrative Court’s decision. It did not find it apparent that the applicant could have been granted a residence permit on any of the grounds set out in the Aliens Act.
COMPLAINTS
The applicant complained that the decisions of the Directorate of Immigration and the Supreme Administrative Court had amounted to a disproportionate interference with her rights under Article 8. She was dependent on her sons, who live permanently in Finland. She also complained that her return to Russia, where she had no relatives or apartment, would amount to a violation of Article 3.
THE LAW
On 29 October 2007 the Government informed the Court that, on 26 October 2007, the Directorate of Immigration had given the applicant a continuous residence permit on compassionate grounds for the period 26 October 2007 – 26 October 2008. After four years the applicant would be issued a permanent residence permit if there were no obstacles to doing so, as mentioned in the Aliens Act. Consequently, the Government maintained that the circumstances allowed the Court to reach the conclusion that the matter had been resolved, so justifying the discontinuation of the examination of the application. The Government invited the Court to strike the application out of its list of cases.
On 16 January 2008 the applicant’s representative informed the Court that, even though the applicant had been given a continuous residence permit, she wished to maintain her application, considering that the alleged violations had not been made good by that decision.
Article 37 § 1 of the Convention provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court notes that the applicant has now been granted a continuous residence permit and that she 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 the application to be continued. Accordingly, the application of Article 29 § 3 of the Convention to the case should be discontinued.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy