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Finland / Supreme Administrative Court / KHO:2018:52; Decision 1762; 3891/4/17

X v the Finnish Immigration Service

Policy area:
Borders and Visa
Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Administrative Court
Decision date:

Key facts of the case:

The Finnish Immigration Service had rejected X’s asylum application which was based on a fear of persecution on grounds of sexual orientation. The administrative court upheld the decision, after having held an oral hearing in the case. Both the Immigration Service and the administrative court found that the applicant’s claims related to his homosexuality were not credible. When appealing to the Supreme Administrative Court X submitted as evidence a photograph and a video recording of intimate acts between himself and another man. In its decision, the Supreme Administrative Court assessed the admissibility of such evidence, along with the applicant’s right to asylum or subsidiary protection.

Regarding the assessment of facts and circumstances in the case, the court applied the general rules concerning administrative procedures as provided for in the Aliens Act (301/2004) and the Administrative Judicial Procedure Act (586/1996). The authorities have a duty to investigate the matter and review all evidence available. Where necessary, the appellate authority can request the parties to submit additional evidence or obtain evidence on its own initiative.

The court also relied on the rulings of the CJEU in the cases of C-148/13, C-149/13 and C-150/13, A et al. and C-473/16, F, which concern the interpretation of the Qualification Directive in the light of the Charter and the limits imposed on national authorities when assessing an asylum claim based on sexual orientation. It also referred to the UNHCR guidelines on claims to refugee status based on sexual orientation.

Key legal question raised by the Court:

Admissibility of photographs and video recordings of sexual acts as evidence in a case where an asylum application is based on fear of persecution on grounds of sexual orientation.

Outcome of the case:

The Supreme Administrative Court noted that the applicant’s own testimony is the primary source of evidence when assessing the credibility of a claim related to sexual orientation. A court cannot require applicants to provide photographs or video recordings of intimate acts in support of their asylum application based on sexual orientation. Such evidence would of its nature infringe human dignity and the right to private life, even in cases where the persons had voluntarily agreed to being filmed.

The Supreme Administrative Court then noted that in the national administrative procedure, free evaluation of evidence is the general rule. The way evidence is presented has not been restricted, and there are no detailed rules concerning analysis on the probative value of evidence. However, submitting photographs or video recordings of sexual acts as evidence is problematic with regard to the protection of the fundamental rights of human dignity and the right to private life. The court, nevertheless, found that because of the principle of free evaluation of evidence and the protection of the procedural rights of the applicant, the court cannot completely refuse to accept such evidence when submitted on the applicant’s own initiative and in order to support his claim for international protection. The court emphasised that the main issue was the assessment of the credibility of the applicant’s statements concerning his declared sexual orientation and sexual identity, not the actual practice of homosexual acts. In this case the credibility assessment was based on the applicant’s statements made in the various stages of the application process and in the oral hearing before the administrative court. The photograph and video recording provided by the applicant could not undermine the findings of the credibility assessment based on the applicant’s statements and his oral hearing. . Such material had no role in the assessment and it did not thus support the applicant’s claim to international protection. The Supreme Administrative Court upheld the decision of the administrative court and dismissed X’s appeal.