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14/09/2022
FI: The Supreme Administrative Court annulled a lower court decision which did not respect the voting rules set up for the members of the panel.

ECLI
ECLI:FI:KHO:2022:111
Input Provided By
EUAA IDS
Other Source/Information:
Referral to the CJEU
No
Original Documents
Type
Judgment
Relevant Legislative Provisions
National law only (in case there is no reference to EU law/ECHR);
Reference
Finland, Supreme Administrative Court [Korkein hallinto-oikeus], Applicant v Finnish Immigration Service, KHO:2022:111, ECLI:FI:KHO:2022:111, 14 September 2022. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=2737
Case history
Related cases:
Abstract

The issue raised in this case is whether the decision of the administrative court was legal, taking into account the voting of the three members of the panel, and whether the final result of the decision corresponded to the position of the majority of the assembly members. 

The appeal against the decision of the Immigration Service had been brought before the Administrative Court prior to the entry into force of the Administrative Procedure Act. The Administrative Procedure Act was therefore applicable, which states that if there are several questions which affect the outcome of the decision, each of those questions must, in accordance with the Administrative Procedure Act, be put to a vote and the members of the court must rule on each question to be resolved.

The administrative court’s decision in the main proceedings concerned international protection, residence permits, refusal of entry and entry ban. As regards international protection, the appeal was dismissed by two members of the Administrative Court. One member disagreed with regard to international protection and expressed the view in his voting opinion that the decision of the Immigration Service should have been annulled and the case referred back to the Immigration Service in order to grant asylum to the applicant. The member who disagreed with the outcome of the decision stated in his voting opinion that, on account of his sexual orientation, the applicant had a well-founded fear of being persecuted in his country of origin within the meaning of Article 87(1) of the Aliens Act and that he would not be able to obtain official protection. The dissenting judge noted that on those grounds, the decision of the Immigration Service should have been annulled and the case referred back to the Immigration Service in order to grant asylum to the applicant.

As regards the issue of a residence permit, refusal of entry and entry ban, the administrative court had, according to the decision in the main proceedings and the grounds on which it is based, annulled the decision of the Immigration Service and referred the case back for reconsideration. In his voting opinion, the President of the formation considered that there were no grounds for granting a residence permit within the meaning of Article 52(1) of the Aliens Act. There was therefore no reason for the refusal of entry and the lifting of the entry ban. The President of the formation would therefore have dismissed the appeal on that point too. As required by Article 23, Section 5, of the Administrative Procedure Act, the second voting opinion does not contain a statement on the individual form of residence, refusal of entry and entry ban.

The Supreme Administrative Court found that the outcome of the decision of the Administrative Court, in so far as it concerned a residence permit, refusal of entry and entry ban, was not based on the position of the majority of the composition, as required by the Administrative Procedure Act, currently Law on proceedings in administrative matters, Article 85. In that regard, the outcome of the decision was unclear.

The Supreme Administrative Court annulled the decision of the Administrative Court as unlawful and referred the case back for reconsideration.

Country of Decision
Finland
Court Name
FI: Supreme Administrative Court [Korkein hallinto-oikeus]
Case Number
KHO:2022:111
Date of Decision
14/09/2022
Country of Origin
Iraq
Keywords
Assessment of Application
Effective remedy
Second Instance determination
RETURN