European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 57264/09
F.S. and Others
against Finland

The European Court of Human Rights (Fourth Section), sitting on 13 December 2011 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,

Nebojša Vučinić,
Vincent A. De Gaetano, judges,

Lawrence Early, Section Registrar.

Having regard to the above application lodged on 27 October 2009,

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 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Ms F.S., is a Somali national who was born in 1980. The second and the third applicants are children of the first applicant, born in 1996 and 2007 respectively. They all live currently in Finland. Their application was lodged on 27 October 2009. The applicants were represented before the Court by Mr Harri Nevala, a lawyer practising in Oulu. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

The President of the Chamber decided, ex officio, that the applicants’ identities should not be disclosed (Rules 33 § 1 and 47 § 3 of the Rules of Court).

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Asylum proceedings

The applicants entered Finland on 16 September 2008 and sought asylum on the same day. In the asylum interview the first applicant submitted that she had left Somalia because of the war. She had intended to leave alone, but the second applicant had run after her and she had to take her along. The first applicant has five other children who remained in Somalia, as did her two nephews, of whom she had been taking care.

Having left Somalia, the first and the second applicant had travelled through Ethiopia, Sudan and Libya. They had left Libya by boat for Malta. The third applicant was born during that voyage. Upon arrival in Malta the applicants had been placed in detention. The first applicant had been released after seven months after which she had lodged an application for asylum. She was given a tent in which to live, but no other accommodation or subsistence. She had no work or access to health care services. Four months after her release from detention, the first applicant had paid a trafficker to arrange a flight to Finland for her and the children.

On 14 November 2008 the Finnish Immigration Service (Maahanmuutto-virasto, Migrationsverket, hereinafter “the FIS”) refused the applicants residence permits and rejected their asylum claim without an examination of its merits. It also ordered their removal to Malta. It noted that, according to information received from the Maltese authorities, the first applicant had been granted a temporary residence permit on grounds of subsidiary protection, valid until February 2009. Moreover, the Maltese authorities had agreed to take the applicants back in accordance with Article 16 § 1(c) of the Dublin Regulation. As the applicants had a valid residence permit issued by the Maltese authorities, Malta was responsible for the examination of their asylum application. Differences in reception and detention conditions, work opportunities and social benefits between the receiving States was not a sufficient reason to examine a claim in another State. The FIS considered that the applicants’ removal to Malta was not in breach of Article 3 of the Convention.

The applicants appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), submitting, in particular, that the Maltese authorities had abused the first applicant and that she had not received any medical assistance before coming to Finland. In a later submission the first applicant informed the court that the father of the third applicant had been granted a residence permit in Finland.

On 11 December 2008 the Administrative Court decided to stay the applicants’ removal pending its decision. On 22 June 2009 the court rejected the appeal. In its reasons it stated that Malta was responsible for the examination of the applicants’ asylum claim under the Dublin Regulation and endorsed the immigration authority’s decision. Having regard to the reasons given by the FIS and the relevant circumstances as a whole, the court found no reason to prevent the applicants’ removal to Malta.

On 25 September 2009 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused the applicants leave to appeal.

Subsequent events

On 27 October 2009 the applicants lodged an application with the Strasbourg Court, along with a request for the Court, under Rule 39 of the Rules of Court, to stay their removal to Malta.

On 28 October 2009 the President of the Chamber acceded to the above request, indicating to the Government of Finland that the applicants should not be removed to Malta until further notice.

On 23 March 2010 the applicants submitted a statement given by a local social worker. It transpires from that document, inter alia, that the first applicant had initiated proceedings for the determination of paternity of the third applicant’s alleged father.

COMPLAINTS

The applicants complained that their removal to Malta would subject them to inhuman treatment contrary to Article 3 of the Convention. The conditions for asylum seekers in that country would severely jeopardise the healthy development of the children, in particular.

The applicants also complained under Article 8 of the Convention that the removal would prevent the third applicant from establishing family relations with his father, currently residing in Finland on the strength of a residence permit.

THE LAW

The applicants complained under Article 3 of the Convention that their removal to Malta would subject them to a risk of inhuman and degrading treatment.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The applicants also complained under Article 8 of the Convention that the removal would prevent the third applicant from establishing family relations with his father, currently residing in Finland on the strength of a residence permit.

On 26 August 2011 the Government informed the Court that, on 17 June 2011, the Finnish Immigration Service had granted the applicants a continuous residence permit on the basis of individual compassionate grounds for a period of one year. The residence permit was renewable if the grounds for granting it still existed. 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 and to lift the interim measure indicated on 28 October 2009.

On 31 August 2011 the Court forwarded the Government’s submissions to the applicants, who were invited to submit observations in reply by 28 September 2011. However, no response has been received.

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 applicants have now been granted a continuous residence permit and that they are 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 complaints can now be considered to be “resolved” (see Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 97 and 103, ECHR 2007 II). 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 continued examination of the case.

In view of the above, it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court and to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Lech Garlicki
Registrar President