FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31862/02 by Moshammet NESSA and Others against Finland

The European Court of Human Rights (Fourth Section) , sitting on 6 May 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 13 August 2002,

Having regard to the information submitted by the parties in accordance with the instructions of 10 January 2003 of the judge appointed as rapporteur under Rule 49 § 1 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

Mrs Moshammet Nessa, is a Bangaladeshi national, who was born in 1953 and lives in Helsinki, Finland. She is complaining on behalf of her daughter, Mrs Sahera Sultana, and her grand-daughter, Ms Razia Sultana. They were born in 1972 and 1997, respectively, and live in Bangladesh. Mrs Nessa and Sahera and Razia Sultana are hereafter referred to as “the applicants”. They are represented before the Court by Ms Kristiina Bhuiyan.

A. The circumstances of the case

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

Sahera Sultana arrived in Finland on 18 February 1997, under a temporary residence permit granted for the period from 2 January 1997 until 31 July 1997. The residence permit was issued for the purpose of university studies. She immediately, on 26 March 1997, applied for a permanent residence permit for business activities and studies.

Sahera Sultana’s daughter, Razia , was born on 1 April 1997 in Finland.

The Directorate of Immigration ( ulkomaalaisvirasto , utlänningsverket ) issued a temporary residence permit for the period from 1 December 1997 until 1 December 1999 for the purpose of studies.

Sahera Sultana was no longer registered with the university for the term of 1999-2000. The applications of Sahera and Razia to be granted a residence permit were refused by the Directorate of Immigration on 29 May 2000. It noted that Sahera , who had been granted a residence permit in Finland for the period of 1996-2000 on the basis of her studies in Finland, had returned to Bangladesh after having attended only a few courses at the University of Technology. Sahera argued that she had been unable to study because of her pregnancy. The Directorate considered that Sahera , who had however not been hindered by her pregnancy from founding a business together with one of her brothers, did not have such family ties in Finland that she would be entitled to stay there. Taking into account that Sahera’s husband lived in Bangladesh and that Sahera could continue her business from there (the business idea was to import goods from Bangladesh to Finland), her request was refused. Accordingly, Razia was not granted a residence permit either. Sahera and Razia travelled to Bangladesh in September 2000.

On 9 August 2000 Sahera’s parents arrived in Finland as visitors with a sixty-day tourist visa. They were later granted a residence permit on a humanitarian basis as two of their sons had already stayed in Finland for over twelve years and had been granted Finnish citizenship. The parents were both also diagnosed with severe chronic illnesses (the father with cancer and the mother with kidney failure) which could not be treated effectively in their country of origin.

Sahera and Razia appealed to the Administrative Court of Helsinki, arguing that most of their family lived in Finland and that Sahera wished to continue her studies which she had not yet finished. Their appeal was refused by the Administrative Court on 25 September 2001. The court noted that Sahera Sultana had originally arrived in Finland because of her studies but that the reason for her visit had changed into business and family ties during her stay. Taking into account that Razia was only four years old, the Administrative Court did not find that the interests of the child rendered the refusal of the residence permit unreasonable.

Sahera and Razia applied for leave to appeal from the Supreme Administrative Court on the basis of new circumstances as Sahera’s mother, Mrs Nessa , had fallen seriously ill in Finland, suffering from kidney failure, requiring dialysis three times a week. On 15 May 2002 the Supreme Administrative Court refused Sahera and Razia leave to appeal.

Sahera Sultana gave birth to her second daughter in Bangladesh in December 2001.

In September 2001 Sahera and her family applied for visas to enter Finland. The requests were refused on 18 September 2001, with reference to section 11 of the Aliens Act ( ulkomaalaislaki , utlänningslagen ). The visa application indicated that visas were not sought for “travel or other comparable short-term stay in the country” but rather for long-term stay for which a residence permit should be applied for instead. On 12 November 2001 the Embassy advised Sahera and her family to apply for residence permits, if their purpose was not to stay in the country for a short time only.

On 8 June 2002 Sahera submitted to the Embassy applications for a residence permit for herself and her family. The family was interviewed at the Finnish Embassy on 9 July 2002 and the difference between a residence permit application and a visa application was explained to them.

On 10 July 2002 Sahera informed the Embassy that they wished to withdraw the residence permit applications and apply instead for a short-term visa. Subsequently, the fees they had paid (amounting to USD 236) for the residence permit applications were returned by the Embassy.

Sahera and her family filed new visa applications on 10 July 2002. These applications were also refused and the decisions on refusal were mailed to the persons concerned on 23 July 2002. The reasons for the refusals were the same as in respect of the first visa applications. However, having received several petitions, the Embassy reviewed the visa applications and sent Sahera a letter on 16 August 2002, offering her and her younger child a possibility to have a thirty-day tourist visa for Finland for the purpose of travelling to see their sick mother/grandmother. Razia was not offered a visa. Since then Sahera has not been in contact with the Embassy and nor has she replied to the letter or filed a visa application as suggested.

On 22 September 2002 Sahera’s brother sent the Embassy an e-mail message, according to which his family was not able to accept that visas should be issued only to her sister and her younger child, since in their opinion the whole family should travel together.

Since Sahera’s and her family’s earlier applications for visas had been refused by appropriate decisions, and she had herself withdrawn the residence permit applications, they have at present no residence permit or visa applications pending.

B. Relevant domestic law

According to Section 11 of the Aliens Act (639/1993), a visa means a permit or a decision issued for tourist travel or comparable short-term visit on the basis of which an alien may enter Finland, provided that he fulfils the other entry conditions.

Under Section 13 of the Aliens Act, a visa must be issued by a Finnish diplomatic representation or consulate abroad.

Section 18b (537/1999) of the Aliens Act defines the family members to whom a residence permit may be issued. Such family members include the spouse of the alien residing in Finland as well as his or her children under the age of 18 for whose custody he is responsible. Should the alien residing in Finland be under the age of 18, his custodian is considered a family member to whom a residence permit may be issued on the basis of family ties.

Section 18c (537/1999) of the Aliens Act provides for a possibility to issue a residence permit on the basis of family ties.

According to Section 19, subsection 2 (537/1999) of the Aliens Act, residence permits on the basis of family ties shall be issued by the Directorate of Immigration.

According to Section 58 of the Aliens Act, an appeal may be lodged within 14 days to the Supreme Administrative Court against the Directorate of Immigration’s decision not to grant a residence permit.

According to Section 60 of the Aliens Act, there is no appeal against decisions which are not mentioned in Sections 55, 57 or 58 of the Aliens Act. Accordingly, there is no right of appeal against the decision not to grant a tourist visa.

COMPLAINTS

1. The applicants complain, under Article 3 of the Convention, that they are subjected to inhuman treatment as Sahera and Razia Sultana are not allowed to enter Finland and to meet with Sultana’s parents and brothers even though Sultana’s parents are seriously ill.

2. The applicants also complain, under Article 8 of the Convention, that the Finnish authorities are violating their right to respect for their family life as their family is forced to live apart from each other.

3. Finally, the applicants complain that they are discriminated against on the basis of their origin and because Bangladesh is a less developed country than Finland. They invoke Article 14 of the Convention in this respect.

THE LAW

1. The applicants complain that they are subjected to inhuman treatment as the family members are kept apart from each other even though Sultana’s parents are seriously ill and cannot travel to their country of origin themselves. They invoke Article 3 of the Convention which reads as follows:

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

The Court recalls, first, that the Convention does not guarantee a right, as such, to enter or to remain in a particular country. Secondly, it recalls that to fall within the scope of Article 3 ill-treatment must attain a minimum level of severity. In the present case, however, Sahera Sultana is an adult woman living with her close family in her country of origin without alleging any kind of political or related persecution in that country. In these circumstances, the Court finds that the complaint does not raise an issue under Article 3 of the Convention.

It follows that this part of the application is manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicants complain that their right to respect for their family life is violated as their family has not been reunited despite of their various attempts to that effect. They emphasise that almost all of Sahera’s closest family members (parents, two out of three brothers and their families) live permanently in Finland either as citizens or residents. Moreover, the parents are suffering from life-threatening illnesses and are unable to travel for the rest of their lives. They also point out that Razia was not even offered a tourist visa although she was born in Finland. They invoke Article 8 of the Convention which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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 Court first refers to its constant case-law according to which the Convention does not guarantee a right to enter or reside in a particular country. However, the Court has also held that in view of the right to respect for family life ensured by Article 8, the exclusion of a person from a country in which her close relatives reside may raise an issue under this provision.

In cases where grown-up children wish to take up residence with their parents the Court examines the issue in light of the children’s ages, the extent to which they resided with the parents in the past and any financial or other dependency between parents and child.

As regards the facts of the present case the Court notes that Sahera is 31 years old and, taking into account that she has been married for several years and had herself lived in Finland in 1997-2000, for most of which period the parents lived in Bangladesh, she has apparently not lived with her parents for years. Razia is six years old and has never lived with her grandparents. Furthermore, it does not appear that there is any financial or other dependency between the applicants.

Nevertheless, the Court notes that there exist links with persons residing in Finland which could be considered as constituting Sahera’s and Razia’s family life. Having regard, however, to the substantial links which Sahera and Razia have with their country of origin (Sahera’s husband and younger daughter, i.e. Razia’s father and sister, are living there), the refusal to permit non-national persons to enter a country in order to visit their family members cannot be regarded as infringing their right to respect for their family life.

Moreover, Sahera’s parents’ state of health was not invoked in the residence permit application filed in 1997, nor where the illnesses mentioned in the letter of appeal to the Administrative Court. They were therefore not considered at all at the domestic level when the decisions not to grant the residence permits were taken. It is still open to Sahera and Razia to make a new application on the basis of the present circumstances.

As regards the possibility to visit Finland with a tourist visa, the Court notes that Sahera did not accept the visa granted for herself. Therefore, it cannot be said that she has been unreasonably hindered from meeting with her parents.

It follows that this part of the application is manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Finally, the applicants complain that they have been discriminated against on the basis of their origin. They claim that their applications would have been treated differently had Bangladesh not been an underdeveloped country. They invoke Article 14 of the Convention which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] 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 Court finds no indication that the applicants have been discriminated against on any of the grounds mentioned in that Article.

It follows that this part of the application is also manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President