AS TO THE ADMISSIBILITY OF
Application No. 25946/94 Application No. 25947/94
by Antonio SIM by Bernardo UNGSON
against Finland against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 28 June 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
Mrs. S. DOLLÉ, Acting 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 applications introduced on 25 October 1994
by Antonio Sim and Bernardo Ungson against Finland and registered on
14 December 1994 under file Nos. 25946/94 and 25947/94 respectively;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the cases, as submitted by the applicants, may be
summarised as follows.
Application No. 25946/94
The applicant is a citizen of the Philippines, born in 1957. He
is a engineer. Before the Commission he is represented by Ms. Johanna
Ojala, a lawyer in Helsinki.
The applicant entered Finland in April 1987, having been offered
an apprenticeship as well as a three-month residence and work permit
to this effect. This permit was later prolonged until October 1988. In
the autumn of 1987 the applicant met Ms. A., who is also a citizen of
the Philippines.
After the applicant's request for a residence permit for holiday
reasons to be valid as from October 1988 had been rejected he returned
to his country of origin. By virtue of a fresh residence and work
permit he returned to Finland in February 1990, having been offered
further short-term employment. He and A. worked in different cities in
addition to which he worked shifts. They therefore cohabited only
during the weekends. The further residence and work permit was later
prolonged until August 1991, when the applicant's contract of
employment expired. Following this expiry the applicant and A.
allegedly lived together permanently, A. supporting the couple.
The applicant's subsequent requests for a two-year residence
permit were rejected in August and September 1991. In October 1991 and
March 1992 the applicant again requested a residence permit. These
requests were refused on 6 April 1992 and the refusal was eventually
upheld by the Supreme Administrative Court (korkein hallinto-oikeus,
högsta förvaltningsdomstolen) in December 1992 by virtue of a refusal
to reopen the proceedings.
In January 1993 the applicant lodged a further request for a
residence permit, this time referring to his cohabitation with A. This
request was rejected by the Aliens Centre (ulkomaalaiskeskus,
utlänningscentralen) of the Ministry of the Interior
(sisäasiainministeriö, inrikesministeriet) in May 1993 and the
applicant was ordered to be expelled. In rejecting the request the
Aliens Centre had regard to population registration records showing
that the applicant was not living with A.
In the subsequent appeal proceedings the applicant invoked
witness statements and other evidence showing that he had been
permanently cohabiting with A. since August 1991.
On 19 November 1993 the Supreme Administrative Court quashed the
Aliens Centre's decision and referred the matter back for a new
examination.
On 18 February 1994 the Aliens Centre maintained its refusal of
the applicant's request for a residence permit. It noted the
applicant's claim that he had been cohabiting with another non-national
in a marriage-like manner but found that three further persons had also
been living with them. It concluded that the applicant had developed
no such strong ties to Finland which would warrant the granting of
a residence permit. It furthermore noted, inter alia, that he had been
able to remain in the country because he had made use of various
remedies. Finally, it noted that part of the applicant's submissions
had been lodged in "a rare language" (Tagal). While apparently being
unable to take account of the contents of these submissions, the Centre
considered that he had been free to make his submissions in English or
Finnish.
The Aliens Centre finally ordered the applicant's expulsion and
also prohibited him from re-entering Finland or entering another Nordic
country during a period of three years.
On 25 October 1994 the Supreme Administrative Court upheld the
Aliens Centre's decision.
It appears that the applicant was expelled on 8 December 1994.
The applicant's partner A. has resided permanently in Finland as
from the beginning of the 1980's and holds a temporary residence
permit.
Application No. 25947/94
The applicant is a citizen of the Philippines, born in 1962. He
is a technician. Before the Commission he is represented by the
above-mentioned Ms. Ojala.
The applicant entered Finland in April 1987 for an
apprenticeship, having been granted a three-month residence and
work permit to this effect. This permit was later prolonged until
October 1988. In the autumn of 1987 the applicant met Ms. S., who is
also a citizen of the Philippines. In April 1988 they started
cohabiting.
After the applicant's request for a residence permit for holiday
reasons valid as from October 1988 had been rejected he returned to his
country of origin. By virtue of a fresh residence and work permit he
returned to Finland in February 1990. He and S. worked in different
cities in addition to which he worked shifts. They therefore lived
together only during the weekends. His residence and work permit was
later prolonged until August 1991, when his contract of employment was
to expire. Following this expiry the applicant and S. lived together
permanently, S. supporting the couple.
The applicant's subsequent requests for a two-year residence
permit were rejected in August and September 1991.
In October 1991 and March 1992 the applicant requested a
residence permit. These requests were refused on 6 April 1992 and the
refusal was eventually upheld by the Supreme Administrative Court in
December 1992 by virtue of a refusal to reopen the proceedings.
In January 1993 the applicant lodged a further request for a
residence permit, this time referring to his cohabitation with S. This
request was rejected by the Aliens Centre in May 1993 and the applicant
was ordered to be expelled. In rejecting the request the Aliens Centre
had regard to population registration records showing that the
applicant was not living with S.
In the subsequent appeal proceedings the applicant invoked
witness statements and other evidence showing that he had been
permanently cohabiting with S. since August 1991.
On 19 November 1993 the Supreme Administrative Court quashed the
Aliens Centre's decision and referred the matter back for a new
examination.
On 18 February 1994 the Aliens Centre maintained its refusal of
the applicant's request for a residence permit. It noted the
applicant's claim that he had been cohabiting with another non-national
but considered that he had developed no such strong ties to Finland
which would warrant the granting of a residence permit. It furthermore
noted, inter alia, that he had been able to remain in the country
because he had made use of various remedies. Finally, it noted that
part of the applicant's submissions had been lodged in "a rare
language" (Tagal). While apparently being unable to take account of the
contents of these submissions, the Centre considered that he had been
free to make his submissions in English or Finnish.
The Aliens Centre finally ordered the applicant's expulsion and
prohibited him from re-entering Finland or entering another Nordic
country during a period of three years.
On 25 October 1994 the Supreme Administrative Court upheld the
Aliens Centre's decision.
It appears that the applicant was expelled on 8 December 1994.
The applicant's partner S. appears to have resided permanently
in Finland as from 1983 and holds a permanent residence permit.
COMPLAINTS
1. The applicants complain that their expulsion violated their right
to respect for their respective family lives and homes. They submit
that, although they, only in 1993, invoked family grounds in support
of their requests for a residence permit, they had been permanently
cohabiting with A. and S., respectively as from August 1991. They
invoke Article 8 of the Convention.
2. The applicants furthermore complain that their expulsion
discriminate against them in their capacity as cohabiting partners of
A. and S., if the applicants are compared with spouses in a situation
similar to theirs. They invoke Article 14 of the Convention.
THE LAW
1. The Commission considers it convenient to join the applications
under Rule 35 of its Rules of Procedure.
2. The applicants complain that their expulsion violated their right
to respect for their respective family lives and homes. They invoke
Article 8 (Art. 8) of the Convention which, in so far as it is
relevant, reads as follows:
"1. Everyone has the right to respect for his ... family
life [and] his home ...
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission recalls that the Contracting States are in
principle free to control the entry, residence and expulsion of aliens.
Expulsion of a person from a country in which close members of his
family live may nevertheless amount to an unjustified interference with
his right to respect for his family life as guaranteed by Article 8
(Art. 8) of the Convention (e.g., Eur. Court H.R., Moustaquim judgment
of 18 February 1991, Series A no. 193, pp. 19 et seq., paras. 43 et
seq.).
The Commission further recalls that the notion of "family life"
in Article 8 (Art. 8) is not confined solely to marriage-based
relationships. It may thus encompass other de facto "family ties"
where parties are living together outside marriage (e.g., Eur. Court
H.R., Kroon and Others v. the Netherlands judgment of 27 October 1994,
Series A no. 297-C, para. 30).
The Commission observes that at the time of their expulsion from
Finland the applicants were cohabiting with A. and S., respectively.
It will therefore assume that their expulsion interfered with their
right to respect for their family lives with their respective partners
within the meaning of Article 8 para. 1 (Art. 8-1). Under Article 8
para. 2 (Art. 8-2) such an interference must satisfy three conditions:
it must be "in accordance with the law", it must pursue one or more of
the aims enumerated in paragraph 2 (Art. 8-2) and it must be "necessary
in a democratic society" for that aim or those aims. The necessity
requirement implies the existence of a pressing social need and, in
particular, requires that the measure be proportionate to the
legitimate aim pursued (the above-mentioned Moustaquim judgment,
pp. 18 et seq., paras. 37 et seq.). Regard should further be had to the
margin of appreciation afforded to the Contracting States (Eur. Court
H.R., Berrehab judgment of 21 June 1988, Series A no. 138, pp. 15-16,
para. 28).
The Commission is satisfied that the applicants' expulsion were
"in accordance with the law". It also considers that it pursued a
legitimate aim under Article 8 para. 2 (Art. 8-2) such as the economic
well-being of the country.
As regards the question whether the applicants' expulsion was
"necessary in a democratic society" in pursuit of the above-mentioned
aim, the Commission observes that up to August 1991 the applicants
lived and worked in Finland by virtue of short-term permits to this
effect. Given their precarious residential status in Finland at the
time when they established their assumed respective family lives, the
Commission finds that the applicants could not legitimately expect to
be able to pursue such family life there. This finding is valid
irrespective of whether the family life was established in August 1991
or even earlier. It is true that the applicants' respective partners
A. and S. were lawfully and permanently resident in Finland at the
relevant time. It has not been shown, however, that they would have
lacked a practical and reasonable opportunity of accompanying or
following the applicants back to the Philippines, in particular since
A. and S. themselves are citizens of that country (cf., e.g.,
No. 11333/85, Dec. 17.5.85, D.R 43 p. 227; No. 20002/92, Dec. 5.4.95,
unpublished). Finally, although the applicants are, in principle,
prohibited from re-entering Finland before the end of 1997, they are
not prevented from visiting A. and S. there after having been issued
with a visa to this effect. There is no indication that requests to
this effect would be refused.
In these particular circumstances and taking into account the
margin of appreciation left to the Contracting States, the Commission
concludes that the interference, if any, with the applicants'
respective family lives was justified under Article 8 para. 2
(Art. 8-2) of the Convention in that it could reasonably be considered
"necessary in a democratic society" for the economic well-being of the
respondent State. Accordingly, there is no appearance of a violation
of Article 8 (Art. 8).
The Commission finds no separate issue with regard to the alleged
lack of respect for the applicants' homes.
3. The applicants furthermore complain that their expulsion
discriminate against them in their capacity as cohabiting partners of
A. and S., if the applicants are compared with spouses in a situation
similar to theirs. They invoke Article 14 (Art. 14) of the Convention
which reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
The Commission recalls that Article 14 (Art. 14) complements the
other substantive provisions of the Convention and the Protocols. It
has no independent existence since it has effect solely in relation to
"the enjoyment of the rights and freedoms" safeguarded by those
provisions. Although the application of Article 14 (Art. 14) does not
presuppose a breach of those provisions - and to this extent it is
autonomous -, there can be no room for its application unless the facts
at issue fall within the ambit of one of more of the latter.
In the present case the Commission has found no appearance of a
violation of Article 8 (Art. 8). The applicants' present complaint
nevertheless falls within the ambit of that provision and Article 14
(Art. 14) therefore applies.
The Commission recalls that a difference of treatment of persons
in a similar situation is discriminatory if it "has no objective and
reasonable justification", that is if it does not pursue a "legitimate
aim" or if there is not a "reasonable relationship of proportionality
between the means employed and the aim sought to be realised". The
Contracting States nevertheless enjoy a certain margin of appreciation
in assessing whether and to what extent differences in otherwise
similar situations justify a different treatment (e.g., Eur. Court
H.R., Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A
no. 291-B, paras. 22 et seq.).
The Commission has considered whether, because of their
expulsion, the applicants were treated differently on account of their
status as non-nationals cohabiting in a marriage-like manner with
non-nationals lawfully and permanently settled in the country, compared
with non-nationals, who have contracted marriage with equally lawfully
and permanently settled non-nationals. It observes that the applicants'
requests for residence permits on account of their cohabitation with
A. and S., respectively, were in essence rejected because of the
applicants' lack of sufficiently strong ties to Finland and because the
applicants had only in January 1993 referred to their alleged family
life with A. and S., respectively. It cannot find sufficient
substantiation of the applicants' complaint that their expulsion
discriminated against them in their capacity as cohabitants of A. and
S., respectively.
In these circumstances the Commission cannot find any appearance
of a violation of Article 14 in conjunction with Article 8 (Art. 14+8).
4. It follows that the applications as a whole must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO JOIN APPLICATIONS NOS. 25946/94 AND 25947/94; and
DECLARES THE APPLICATIONS INADMISSIBLE.
Acting Secretary President
to the First Chamber of the First Chamber
(S. DOLLÉ) (C.L. ROZAKIS)
Full & Egal Universal Law Academy