Finnish Supreme Administrative Court, KHO:2019:99, 2019

Abstract

Finland: Supreme Administrative Court overturns ruling on #asylum application on grounds of #sexualorientation and #genderidentity

On 20 August 2019, the Supreme Administrative Court of Finland ordered the re-assessment of an applicant’s asylum claim on the grounds of their persecution due to their sexual orientation and gender identity.

In an appeal from July 2018, the Administrative Court of Northern Finland found the applicant described their sexual orientation, including their experience in a previous relationship, in a general and superficial manner and found their account to not be credible. The Administrative Court upheld the decision of the Immigration Service rejecting the application for international protection and ordered the applicant’s return to Iraq.

In the Supreme Administrative Court, the Court examined the situation in Iraq for individuals who identify as LGBTI+ referencing UNHCR Eligibility Guidelines from 2012, the UNHCR Position on Returns to Iraq from 2016, as well as the latest EASO Country Guidance on Iraq.

The Court held that definitions of sexual orientation and gender identity are unique to each individual and cannot be assessed using generalised concepts. It recognised that sexual orientation as an identity is not directly related to a person’s sexual behaviour and that the assessment of international protection concerns should not be based on specific acts of the applicant.

The Court held that the applicant had consistently and sufficiently described their relationship with a man in Iraq and recognised that the applicant self-identified as gay and internally felt that they were a woman. The application was further corroborated by the medical reports submitted by the applicant. The Court held that the applicant had legitimate reasons to fear persecution in their home country. It annulled the previous rulings and referred the matter back to the Immigration Service for re-assessment.

Based on an unofficial translation by the EWLU team.

[Source: ELENA Weekly Legal Update – 23 August 2019]