CASE OF SENCHISHAK v. FINLAND
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia)
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
6. The applicant was born in 1942 and lives in Espoo. 7. The applicant had a husband and two daughters in Russia. In 1988 one of the daughters moved to Finland and has lived there permanently since then. She is a Finnish citizen. The other daughter went missing in 2003 and is probably dead. The applicant raised her granddaughter, who was born in 1986, from the age of 3 or 4, when the child’s mother went missing. 8. In November 2006 the applicant suffered a stroke in Russia. Apparently her right side was then paralysed. At the time, she lived with her husband, until he died in 2007. Thereafter the applicant apparently lived with her granddaughter and her family near Vyborg. 9. On 7 December 2008 the applicant arrived in Finland with a tourist visa issued for a period of 30 days, without having lodged a prior application for a residence permit at a Finnish Representation. Since then she has been living with her daughter in Espoo. 10. On 17 December 2008 the applicant applied for a residence permit on the basis of family ties to her daughter. 11. On 31 July 2009 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) refused the applicant a residence permit and ordered her removal to Russia. 12. The applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), presenting new medical evidence about her state of health. 13. On 8 April 2010 the Helsinki Administrative Court quashed the Immigration Service’s decision and referred the case back to it for reexamination as new evidence had been presented in the matter on which it could not take a stand as a first instance. 14. On 29 April 2010 the Immigration Service again refused the applicant a residence permit and ordered her removal to Russia. It found that, according to the domestic law, the applicant was not entitled to a residence permit on the basis of family ties as she was not a family member (a spouse or a minor child) of a person living in Finland. Other relatives than family members were issued a residence permit only in exceptional circumstances, mainly if the purpose was to continue close family life in Finland or if the relative was completely dependent on a Finnish citizen living in Finland. The applicant and her daughter had not had any family life since 1988 when the daughter had moved to Finland. A residence permit could not be granted on the basis of health reasons either. It did not appear that the applicant could not receive proper medical treatment or care in Russia. The applicant’s age, her state of health and the fact that her relative lived in Finland were not sufficient reasons to issue her a residence permit. 15. The applicant appealed to the Helsinki Administrative Court, requesting that the Immigration Service’s decision be quashed. She claimed, inter alia, that she had not received proper treatment in Russia and that such treatment could not be provided. She had no relatives in Russia who could take care of her. This meant that she would have to be put in a nursing home, the standard of which was generally poor in Russia. Her daughter could not move back to Russia either as she would have to leave her job in Finland and take her daughter with her. It was not even certain that they would be issued a residence permit in Russia. The applicant’s mental condition was such that she could not endure removal and separation from her daughter. Separation would lead to her death either through sickness or suicide. 16. On 27 May 2010 the Helsinki Administrative Court ordered a stay on removal for the duration of the proceedings before it. 17. On 16 September 2011 the Helsinki Administrative Court rejected the applicant’s appeal. In its reasons the court noted that the essential question was whether the applicant was completely dependent on her daughter who lives in Finland. The applicant’s state of physical and mental health was attested by proper medical certificates. However, it was not shown that the applicant could not receive proper medical treatment or care in Russia, in her own language. The applicant was thus not completely dependent on her daughter in Finland, nor did she have any close ties to Finland. The applicant had close ties to Russia where she could also receive treatment. The fact that treatment would be more expensive there was not a ground to grant a residence permit. The applicant’s daughter could help her financially and could also visit her in Russia. 18. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that she be granted leave to appeal and that the court order a stay on removal. 19. No stay on removal was ordered by the Supreme Administrative Court. 20. On 14 June 2012 the Supreme Administrative Court refused the applicant leave to appeal.