Article 24 - The rights of the child
Key facts of the case:
An Iraqi man A and his son B had applied for international protection but the Finnish Immigration Service had rejected the application and decided the applicants are to be returned to Iraq. In his appeal to the administrative court, A brought forth the fact that the Immigration Service had not heard B before making a decision on the application. At the time of the decision B was 14 years old. Both the Immigration Service and the administrative court found that hearing the child was manifestly unnecessary, because the grounds for seeking international protection as presented by the applicants were not pertaining to the child. The father A had claimed, among other things, that he had been persecuted because of his Sunni origin and Sunni name.
According to the Aliens Act, before a decision is made concerning a child who is at least 12 years old, the child shall be heard unless such hearing is manifestly unnecessary. The child’s views shall be taken into account in accordance with the child’s age and level of development. In any decisions that concern a child under 18 years of age, special attention shall be paid to the best interest of the child and to circumstances related to the child’s development and health.
The Supreme Administrative Court held that in interpreting the Aliens Act, the CRC and its provisions on the best interests of the child and the child’s right to be heard need to be taken into account, along with the views and recommendations of the Committee on the Rights of the Child concerning the interpretation of the relevant CRC provisions. The court also referred to Article 24(1) of the Charter and the constitutional provisions on children’s right to equal treatment and their right to influence matters pertaining to themselves to a degree corresponding to their level of development.
Outcome of the case:
The Supreme Administrative Court noted that according to the Aliens Act and its preparatory works, hearing a child, who is aged 12 years or over, in asylum proceedings is clearly the main rule, and possible exceptions to this rule must be interpreted narrowly. Unlike the Immigration Service and the (lower) administrative court, the Supreme Administrative Court held that the asylum grounds based on A’s Sunni origin and Sunni name also concerned the child B. As presented by A in his appeal to the Supreme Administrative Court, the child B had also been bullied at school because of his Sunni origin. The court concluded that the child’s views had not been examined or taken into account in accordance with his age and level of development and therefore the decision of the Immigration Service had not been made in the proper order. The Supreme Administrative Court quashed the decisions by the lower court and the Immigration Service and returned the case to the Immigration Service for reassessment of the application.
When the application for international protection was initiated, the applicant’s child was 13 years old, and he had turned 14 by the time the Immigration Service made its decision. The child has not been given the opportunity to be heard concerning the reasons for the application for international protection. It is apparent from the information submitted to the court that the child’s views have not been heard during the asylum investigation and have thus not been taken into account, as required in section 6(3) of the Constitution Act, Article 24(1) of the Charter of Fundamental Rights of the European Union, Article 12 of the Convention the Rights of the Child and section 6(2) of the Aliens Act. Contrary to what the Immigration Service has held in its statement to the administrative court, the elements on which the application for international protection is based and which are pertaining to the applicant’s Sunni origin and Sunni name Omar, concern both the applicant and his son. On the basis of the written evidence submitted in this case, hearing the child’s views could not be regarded as manifestly unnecessary, as held by the Immigration Service and the administrative court.
Kansainvälistä suojelua koskevaa hakemusta vireille pantaessa 13-vuotiaalle ja Maahanmuuttoviraston päätöksentekohetkellä 14-vuotiaalle muutoksenhakijan lapselle ei ole varattu tilaisuutta tulla kuulluksi kansainvälistä suojelua koskevan hakemuksen tekemiseen johtaneista syistä. Lapsen mielipiteitä ei ole asiassa saadun selvityksen mukaan selvitetty turvapaikkatutkinnan aikana eikä niitä ole siten otettu huomioon Suomen perustuslain 6 §:n 3 momentissa, Euroopan unionin perusoikeuskirjan 24 artiklan 1 kohdassa, lapsen oikeuksia koskevan yleissopimuksen 12 artiklassa ja ulkomaalaislain 6 §:n 2 momentissa edellytetyllä tavalla. Toisin kuin Maahanmuuttovirasto on hallinto-oikeudelle antamassaan lausunnossa todennut, muutoksenhakijan kansainvälistä suojelua koskevan hakemuksen sunnalaisuuteen ja Omar-nimeen liittyvät perusteet ovat koskeneet sekä muutoksenhakijaa että hänen poikaansa. Lapsen kuulemista ei asiassa saadun kirjallisen selvityksen perusteella ole voitu pitää Maahanmuuttoviraston ja hallinto-oikeuden esittämällä tavalla ilmeisen tarpeettomana.