Lexploria

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)

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K. and I.S. v. FINLAND

K. and I.S. v. FINLAND

LEXI