On 14 November 2019, the European Court of Human Rights delivered a judgement in the case N.A. v. Finland (application no. 25244/18). The ECtHR found that Finland had violated Articles 2 and 3 of the European Convention on Human Rights when assessing an Iraqi man’s asylum application. Having exhausted all domestic remedies, the applicant’s father, an Iraqi man, returned to Iraq and was shot dead shortly after his return. In N.A., the Court was not convinced that the quality of the assessment conducted by national authorities satisfied the requirements under Articles 2 and 3 of the Convention (§ 83). The case at hand was given unanimously by the first section of the Court in a relatively quick pace of time, which also gives weight for the message the Court aims to signal with its judgement.
The applicant’s complaint was that the expulsion of her father, Mr A, violated Articles 2 and 3 of the Convention. Furthermore, the daughter complained that her father’s violent death had caused her considerable suffering under Article 3 of the Convention. The daughter claimed that the Finnish authorities (Finnish Immigration Service and the national courts) had not undertaken the risk assessment with necessary diligence (§ 43).
The applicant submitted that Mr A had been at risk not only because of his religious background as a Sunni muslim, but also due to his employment history; disagreement with a person who allegedly belonged to the Badr Organisation; a shooting incident at Mr A’s car; and a car bomb explosion which the applicant claimed had been targeted towards Mr A. The Finnish national authorities accepted that a risk could exist as a result of his employment history as a major in the army under Saddam Hussein and later on in an American logistics company. However, they did not agree that a risk occured as a result of the factors put forward i.e. the disagreement, shooting incident nor the car bomb explosion. Ultimately, the Finnish authorities regarded that the risk towards Mr A was improbable and that he would not personally be targeted but that the events were rather explained by the general security situation in Baghdad (§ 5-18).
Mr A applied for a stay on removal, which was not granted by the Supreme Administrative Court. Therefore, the removal order was enforceable. As a consequence, Mr A applied for assisted voluntary return to Iraq (§ 19). Mr A was granted the assistance and he thus left Finland on 29 November. His leave to appeal to the Supreme Administrative Court was rejected on 30 November, a day after his departure from Finland.
In December, the applicant received information from the neighbours of her relatives that her father, Mr. A, had been killed as a result of shots to the head and body (§ 22).
The Finnish authorities contested the fact that there was a link between his death and the national authorities’ obligations not to expose Mr A to the risk of ill-treatment. Their argument was based on the claim that he had chosen to return according to the voluntary return system (§ 45). Instead of being genuinely voluntary, the applicant claimed that Mr A’s return was rather a part of a process to execute an enforceable expulsion order (§ 48) therefore amounting to a de facto deportation. The daughter claimed that Mr A was planning to flee Iraq in the future and seek international protection elsewhere – a plan that is supported by many rejected asylum seekers who await their removal.
On the voluntary nature of the father’s return
First, the Court contested the fact that the circumstances of the case would not engage Finnish national authorities. On the contrary and interestingly, it held that the fact that Mr A had lodged an application for voluntary return was not to be regarded as decisive for the sake of the jurisdiction of Finnish national authorities in relation to the events that occurred to Mr A. Rather, the conditions needed also to be mirrored with the enforceable return decision Mr A had received at the time of the events. The Court regarded that Mr A’s departure was not to be taken as voluntary or as if he had made a choice of his own will (§ 53-57). Indeed, this is a key statement made by the Court stressing the fact that national migration policies may indeed be so narrow that they do not necessarily allow individuals to make their own genuine choices, but instead push them into making certain decisions that are recognized under the state’s national administrative structures and policies.
Thus, choices that comply with the administrative structures can be regarded as personal by the state despite the lack of individual free will. The Court’s message would here be that even though migration programmes or legislation may be disguised as “voluntary”, it will not eliminate the states’ human rights obligations under Articles 2 and 3 of the Convention. The Court skillfully weighed the options Mr A would have had if he decided to choose an alternative option – which was to stay in Finland without any hope of obtaining a legal residence permit, being detained for an upcoming forced removal and possibly attracting the attention of the Iraqi authorities upon return (§ 60).
Simultaneously however, the Court stressed in N.A. that criticism may be placed on the requirements of Articles 2 and 3 the Court. This point will now be discussed.
On the quality of the risk assessment done by Finnish authorities
The Court needed to determine whether the Finnish authorities failed in assessing the risk that Mr A was about to confront if expelled, and whether he thus would have been subject to the treatment contrary to Articles 2 and 3 of the Convention (§ 81).
The Court concluded that the Finnish authorities and courts had not made a cumulative assessment on the facts of Mr A’s case. The Court determined that national authorities had not assessed all of his claims together and as affecting each other but rather, as separate arguments based on separate incidents that occurred to him (§ 82-83).
The case at hand addresses the fact that the national authorities separated aspects of Mr A’s story. Aspects of his story that the authorities were unsure about how to assess their personal impact or were regarded as something arising out of the general situation in Baghdad, were kept apart from those that the authorities regarded credible and coherent – and personal (such as the employment history of the father). The national authorities’ incapability to assess these aspects together led to the violation of the requirements of Articles 2 and 3 of the Convention in the present case. Furthermore, the Court stressed that in assessing the general security situation in the country and the country material, the authorities should also give special consideration to the source of such material – and especially its reliability and objectivity (§ 75).
The Court found a violation under Articles 2 and 3 of the Convention based on the unimpressive quality of the national authorities’ assessment conducted in the father’s asylum application. The Court considered that the risk assessment made by Finnish authorities did not satisfy what is required under Articles 2 and 3 of the Convention. The Court however remains somewhat restricted in stressing the content of the requirements under Articles 2 and 3. The Court’s assessment appears to be based on the principles and values that the Preamble of the Convention refers to, namely the “common heritage of political traditions, ideals, freedom and the rule of law” (§ 72). The interpretative guidance to Parties to the Convention with regard to the ”requirements” under Articles 2 and 3 therefore remains very narrow.
Comments on the case
The Court’s reminder of the need for a cumulative approach, a holistic assessment on all aspects affecting an individual’s case, is not an unfamiliar concept but rather, a requirement established not only in the Qualification Directive 2011/95/EU but also in the Finnish Aliens Act (301/2004). What N.A. characterizes is the fact that there are also other reasons that explain the inability to reinforce the goals set in the national and European asylum legislation into practical activity. It raises the question of what is regarded a credible argument and how credibility is assessed on a national level. The Court does in this sense send an important message states that a cumulative approach does indeed mean a holistic approach on all the facts and aspects an individual seeking protection refers to, and that the authorities’ scope of observance must not place limits on the assessment.
In this regard, and with regard to the future threat a person is likely to experience, the individual circumstances, earlier acts or threats of violence and also the general security situation are all aspects that need to be taken into account as a whole – or cumulatively, as the Court referred.
However, it remains somewhat hard to figure out how the Court interprets the requirements of Articles 2 and 3 in the context of removal of asylum seekers as it mainly refers to the principled basis the preamble of the Convention sets forth. In order to better understand the Court’s message, we must place the judgment delivered in N.A. in a larger continuum of cases dating back to M.S.S. v. Belgium and Greece (application no. 30696/09). In this setting, the case of N.A. represents the aftermath of the refugee crisis Europe experienced in 2015-16 posing a current day challenge the states are facing while they assess on individual asylum applications and the credibility of applicants’ stories. The result may be, as characterized in M.S.S., that applicants lose their faith in the asylum procedure (M.S.S, § 313) and must seek other options in their life as did the applicant’s father in the present case while “voluntarily” leaving Finland. This may result from the expectations national authorities await from the applicants in terms of producing credible arguments in relation to their stories and providing the authorities with enough “personal links” to the incidents that occur to individuals in order not to be considered by ensuing from the general insecurity in a certain country. For the sake of national authorities’ obligations, this means, in line with the M.S.S.-judgment, that while the general situation is known to the authorities (and the country material is observed critically, N.A. § 75) the applicant should not be expected to bear the entire burden of proof (M.S.S, § 352).
The Finnish Migration Service newly announced that in response to the judgment, it will go through 500 similar applications. In view of the brief demonstration made above, it is yet somewhat unclear what the authorities are exactly going to do, and what will be the requirements they are to follow as the judgment in itself appears limited in its interpretative expression.