National case details
Registration ID: KHO: 2021: 2
Instance: Appellate on fact and law
Area of law
Safeguards for access to justice
Relevant principles applied
23 November 2017
Finnish Immigration Service
9 January 2019
Administrative Court of Northern Finland
16 January 2020
Finnish Immigration Service
28 February 2020
Administrative Court of Eastern Finland
8 January 2021
Supreme Administrative Court
Identification of the case
- Right to an effective remedy and to a fair trial (art. 47 CFREU)
- Aliens Act
- CFREU art. 47, Dublin III regulation, directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast)
Summary of the case
The Finnish Immigration Service had rejected X:s application for international protection. X appealed the decision to the Administrative Court of Northern Finland. As X had disappeared while the appeal was pending, the administrative court had decided that there was no need to adjudicate. X had later been returned from Germany to Finland based on the Dublin III Regulation, and he reapplied for asylum in Finland. The Finnish Immigration Service treated the application as a subsequent application and determined that no new elements or findings had arisen or been presented by the applicant, and therefore the application was inadmissible.
X appealed the decision by the Finnish Immigration Service to the Administrative Court of Eastern Finland, which stated that as the Administrative Court of Northern Finland had decided there was no need to adjudicate the appeal concerning X:s first application, and as the Finnish Immigration Service had deemed the subsequent application inadmissible, X had not had access to effective remedies before a court.
The Supreme Administrative Court referred to regulations according to which a person concerned could be considered to have withdrawn their appeal or forgone the possibility to appeal. As X had disappeared, the Administrative Court of Northern Finland could take the decision that there was no need to adjudicate. With the decision that there was no need to adjudicate the appeal, the decision by which X:s application had been rejected by the Finnish Immigration Service had become final. X:s second application was to be treated as a subsequent application.
- Administrative judicial enforcement
Annulment of the decision by the Administrative Court and entry into force of the decision by the Finnish Immigration Service.
After appealing the decision by the Finnish Immigration service to his first asylum application, X had left Finland voluntarily and had been unreachable for at least two months when the Administrative Court of Northern Finland had decided that there was no need to adjudicate the appeal.
Under Article 46 (1) of the Procedural Directive, Member States have an obligation to ensure that applicants have an effective remedy in their international protection case. it is in accordance with the case law of the CJEU on that article and the principle of effectiveness enshrined therein, as well as with Article 47 of the Charter of Fundamental Rights, that the applicant has an effective remedy before a court or tribunal. In this respect, the applicant had had the possibility of an effective judicial remedy in accordance with Article 46 of the Procedural Directive and Article 47 of the Charter of Fundamental Rights, as required by Article 18 (2) of the Dublin III regulation. As X had disappeared after appealing the first decision, the Administrative Court had been right to decide that there was no need to adjudicate the appeal. The Supreme Administrative Court stated that X had appealed his first asylum decision and had thus had access to an effective remedy as required by CFREU art. 47.
According to art. 102 of the Finnish Aliens Act, an application can be considered as a subsequent application only if the applicant has left Finland for a short period of time. What constitutes a short period of time cannot be defined in general terms but requires consideration of the facts of the case. In assessing the significance of the passage of time, the admission and readmission procedures and significant deadlines laid down in the Dublin III regulation must be considered.
In the case at hand X had been missing for over a year. The Dublin transfer of X from Germany to Finland had been delayed as German authorities had not been able to reach X. In these circumstances the Supreme Administrative Court decided that X:s second application could be considered as a subsequent application.
Role of the Charter and role of the general principles on enforcement
CFREU art. 47 was found to be applicable. The right to an effective remedy was a central consideration in the case.
- Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
Elements of judicial dialogue
- Dialogue between high court - lower instance court at national level
- CJEU C-180/17, Staatssecretaris van Veiligheid en Justitie
- CJEU C-348/16, Sacko
Conform interpretation with EU law as interpreted by the CJEU.
Harmonization of national case law.
Additional notes on the decision
No impact on legislation is foreseen.
The decision clarified under which situations a second asylum application can be considered a subsequent application even if the applicant’s appeals with regard to the first application has not been decided on the merits by a tribunal.