Lexploria

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)

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SIM AND UNGSON v. FINLAND

SIM AND UNGSON v. FINLAND

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