SECOND SECTION

DECISION

Application no. 56179/19 Awad ABDULAHI AWAD against Finland

The European Court of Human Rights (Second Section), sitting on 22 February 2022 as a Committee composed of:

Egidijus Kūris, President, Pauliine Koskelo, Gilberto Felici, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 56179/19) against Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 October 2019 by a Somali national, Mr Awad Abdulahi Awad, who was born in 1992 and lives in Helsinki (“the applicant”) who was represented by Mr V.T. Del Gaudio, a lawyer practising in Helsinki;

the decision to give notice of the application to the Finnish Government (“the Government”), represented by their Agent, Ms Krista Oinonen, from the Ministry for Foreign Affairs;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged discrimination of the applicant. By two decisions dated 26 March 2018, the Finnish Immigration Service refused the applicant a work-based residence permit as he had not, at any point during his stay in Finland, been able to prove his identity. The applicant had entered Finland in March 2015 as an asylum seeker. His application for a work-based residence permit was refused on the grounds that he had not submitted a valid travel document. His application for an aliens’ passport was refused since he was not granted a work-based residence permit. As a result, the applicant claimed that he had to give up his permanent job. On 3 July 2018 the Non-Discrimination Ombudsman gave a statement, suggesting that the applicant had been indirectly discriminated. On 11 April 2019 the Administrative Court rejected the applicant’s appeals. In its second statement to the Supreme Administrative Court on 5 July 2019, the Non-Discrimination Ombudsman suggested again that Somali citizens seemed to be in a disadvantageous position when work ‑ based residence permits were issued. However, on 27 September 2019 the Supreme Administrative Court refused the applicant leave to appeal.

2. The applicant complained under Article 14, combined with Article 8 of the Convention, and under Article 1 of Protocol No. 12 that he had been discriminated against as he was not granted a work-based residence permit in the absence of a valid travel document and was refused an aliens’ passport since he did not have a work-based residence permit. He had thus been discriminated against vis-à-vis other foreign nationals because Somali nationals could not in any circumstances receive work-based residence permits as their passports were not, as a rule, accepted and they could not receive aliens’ passports either because they could not be granted work-based residence permits.

THE COURT’S ASSESSMENT

3. The case concerns the applicant’s alleged discrimination under Article 14, combined with Article 8 of the Convention, and under Article 1 of Protocol No. 12 as he was not granted a work-based residence permit on the grounds of having no valid travel document, and obtained no aliens’ passport since he did not have a work-based residence permit.

4. As to the preliminary objections raised by the Government, the application of Article 14 – read in conjunction with a substantive provision – does not necessarily presuppose a violation of one of the substantive rights guaranteed by the Convention and to this extent it is autonomous. Article 14 is thus, in conjunction with Article 8, applicable to the present case. The alleged non-exhaustion of domestic remedies relates to another matter and is thus not relevant for the present case. Nor can it be considered that the applicant had suffered an insignificant disadvantage or that he had abused the right of individual application before the Court.

5. When bringing a complaint under Article 14 of the Convention or Article 1 of Protocol No. 12, the applicant has to show that he or she has been treated differently from another person or group of persons placed in a relevantly similar situation (see Molla Sali v. Greece [GC], no. 20452/14, § 133, 19 December 2018; Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV; and Kafkaris v. Cyprus [GC], no. 21906/04, § 160, ECHR 2008).

6. The Court notes, that according to the domestic law, a person seeking to obtain a residence permit in Finland always needs to prove his or her identity, unless the national law provides for exceptions or unless such an exception can be deduced from international treaties binding on Finland. One such exception applies to asylum proceedings: an asylum-seeker can be granted a residence permit without that person being able to prove his or her identity. According to the national law, no such exception applies to the granting of work-based residence permits. Nor can the Convention be interpreted as requiring to make such an exception in this context since the Convention does not guarantee a right to employment. The Court therefore accepts that the national law could impose an obligation to prove one’s identity as an absolute prerequisite for granting a work-related residence permit.

7. The absolute obligation to prove one’s identity applies to all third ‑ country nationals seeking to obtain a work-related residence permit. This requirement can be fulfilled by presenting a valid travel document or by other, reliable means. An aliens’ passport cannot, however, replace a national passport if a person’s identity cannot be established. The requirement to prove one’s identity is thus a central element. It is also a neutral requirement in the sense that it treats everybody in the same manner, irrespective of their country of origin, as long as they fail to prove, for any reason, their identities in a reliable manner.

8. In the present case, the domestic courts and authorities found that the applicant had not been able to prove his identity at any point during his stay in Finland. Failing to do so, his application for work-related residence permit was refused. The applicant has therefore not been treated, because of his Somalian nationality, any differently vis-à-vis any other groups of persons seeking to obtain a residence permit on work-related grounds and not being able to prove their identities. There is thus no difference in treatment between persons in relevantly similar situations.

9. To the extent that the applicant may be considered to have relied on indirect discrimination on the grounds that Somali nationals are unable to qualify for a work-based residence permit as Somali passports are not recognised as identity documents, the Court notes that according to the concurrent submissions of both parties, the applicant has not at any stage relied on a Somali passport before the domestic authorities. The crux of the matter lies in the applicant’s failure to submit proof of his identity. On this point, the Court accepts the Government’s argument to the effect that the requirement of proof of identity as a condition for a work-based residence permit, as set out in the relevant domestic law, is not without reasonable justification in terms of the interests of public order and security.

10. The Court therefore considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

11. It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 March 2022.

Hasan Bakırcı Egidijus Kūris Deputy Registrar President