Finland’s new law to deal with cases of instrumentalised migration has set alarm bells ringing for its far-reaching provisions.
“We should all be more Finnish when it comes to security.”
This is how Ursula von der Leyen has described the Nordic nation’s ability to deal with Russia and manage their shared 1,340-kilometre border. These skills have been tried and tested since Vladimir Putin ordered the invasion of Ukraine, fanning a collective sense of urgency across the European Union’s Eastern flank.
The European Commission president invoked the same phrase in April when she visited Lappeenranta, a small city near the border, accompanied by Prime Minister Petteri Orpo. In a joint press point, von der Leyen firmly condemned Moscow’s “hybrid attacks” and supported Helsinki’s response to counteract them.
During the autumn, Finland experienced a sudden influx of hundreds of migrants attempting to cross the border. They came from distant countries, such as Somalia, Iraq, Yemen and Syria, and were coaxed by Russian authorities into making the trip to the other side. The November crisis, widely perceived to be a concentrated effort by the Kremlin to sow chaos in the NATO state, led to the closure of all crossing points.
“Finding the right balance between securing the external borders and ensuring the respect of our international obligations is essential,” von der Leyen said. “And I am confident that you are making every effort to ensure that this balance is achieved.”
Barely three months after von der Leyen’s visit, the balance she spoke of is all but gone.
Fearing a repeat of the autumn emergency, Orpo’s government tabled in May a new law that, in exceptional situations of instrumentalisation, will empower border guards to stop asylum seekers from crossing into Finnish territory and refuse the registration of their applications for international protection.
The bill triggered a heated debate, as legal scholars, migration experts and humanitarian organisations decried the proposal as a blatant breach of European and international norms.
The government was well aware of this: the law was labeled an “exceptive act” due to its inherent clash with the Constitution and required a five-sixths majority in the Finnish parliament. Despite the chorus of criticism inside and outside the country, the initiative moved ahead and eventually received 167 votes in favour and 31 against.
The legislation entered into force on 22 July and has since remained dormant, waiting to be activated to cope with an out-of-the-blue border crisis.
But its mere passing has set alarm bells ringing, with many voices deploring the fact that, for all intents and purposes, Finland has legalised pushback.
Never again
The new law is designed as an on-and-off tool to combat instrumentalised migration: it can be triggered when there is a “justified suspicion” that a foreign country is trying to meddle in Finland’s internal affairs, posing a threat to its sovereignty and national security. The application is limited in space (the government has to define a section of Finland’s sprawling border) and time (one month or as soon as the threat disappears).
Once the law is switched on, border guards are compelled to ensure the entry of instrumentalised migrants is “prevented” – which, in practice, could mean pushed back.
Asylum seekers who have already entered Finnish territory have to be “immediately removed” and directed to another place, presumably near the border, to review their applications. Expulsion cannot be appealed but it can be re-evaluated. “Removal will be enforced regardless of the request for re-evaluation,” the text says.
In this context, all asylum claims will be refused unless:
- The re-evaluation request is successful.
- The applicant is underaged, disabled or in a “particularly vulnerable position”.
- If sent back, the applicant will be “in real danger” of being subjected to the death penalty, torture or any other type of inhumane treatment.
“This new act prepares Finland for the possibility that Russia may continue to exert pressure for a long time and in more serious and larger-scale ways,” said a spokesperson of the Ministry of Interior in reply to a series of queries. “We cannot accept that people are being used as tools in hybrid actions.”
During the drafting process, the spokesperson explained, the government looked into “other possible means” to address instrumentalised migration but concluded these alternative plans would fall short because “current national and international law lack sufficient procedures”.
For Helsinki, the emergency bill fills this glaring gap and endows authorities with the legal basis to act decisively in times of crisis. The country is determined to never again see 1,300 migrants without a visa crossing from Finland into Russia, as happened last year. However, since the closure of all crossing points, irregular arrivals have plunged to zero, prompting questions on whether the far-reaching act was needed in the first place.
Setting precedent
From its inception until its approval, the law has been the object of intense criticism.
The obligations to prevent entry to instrumentalised migrants and refuse their asylum applications have come under fire because, if enforced, they will violate the principle of non-refoulement, which forbids countries from deporting refugees to a place where their lives might be in danger. The principle, recognised in the Geneva Convention, the Convention Against Torture and the EU’s Charter of Fundamental Rights, among other texts, is considered the main shield against the practice of pushback.
Additionally, the law has the potential of breaching the prohibition of collective expulsions, as it could lead to the mass deportation of all those estimated to be a pawn in the Kremlin’s malicious games – without accounting for individual factors.
“Pushbacks endanger lives: as we have witnessed at other border crossing points, including in the region, pushback practices expose people to grave human rights risks and can lead to death or other bodily harm,” said a spokesperson at the UNHCR, the United Nations Refugee Agency, noting that every person, including those designated “instruments of influence,” has the right to seek refugee and file a claim.
Deviating from these standards “is not only contrary to international and European law but also creates a dangerous precedent for the erosion of refugee rights globally.”
The burden placed upon the border guards has also been challenged.
The Finnish Refugee Council considers the law imposes an “unreasonable and risky responsibility” on officers because they will be asked to conduct preliminary reviews and identify vulnerabilities in unpredictable, fast-moving circumstances at the border. Moreover, applicants, who are flown to Russia from war-torn nations, will be “unlikely” to provide the necessary documents, be it physical or electronic, to plead their case.
In a statement to Euronews, the Finnish Border Guard ruled out the prospect of collective deportations and insisted only “individual expulsions” would take place after “case-by-case assessments.” The corps is currently being trained according to the law’s “special characteristics” and “additional training may be provided during the implementation.”
Silence in Brussels
The legal contradictions, such as the lack of appeal that damages the access to effective remedies, are far from the only “extraordinary” aspect of the bill, says Martti Koskenniemi, a professor emeritus of international law at the University of Helsinki.
Instead of promoting the contentious text, Orpo’s government could have installed a state of emergency to give border guards greater leeway in their operations. However, the Finnish Constitution establishes that, under a state of emergency, the provisional measures must be “compatible” with international human rights obligations.
“The government took the less dramatic road, which is to make an exception to the Constitution, to enact more dramatic exceptions to international human rights, which couldn’t have been taken if the more dramatic state of emergency had been declared,” Koskenniemi told Euronews. “It’s paradoxical. It violates the sense of legal propriety,”
“The Finnish parliament has made a mistake, and it’s a legal mistake,” the professor added. “It’s a black spot in Finnish constitutional history. And I have no doubt that it will be corrected – sooner or later.”
But who should make the correction?
The European Commission, which is tasked with ensuring national legislation respects EU norms, has remained silent in the debate, pending the completion of an internal analysis. The executive regularly launches infringement procedures against countries that infringe on EU law, as has been the case multiple times with Hungary.
Still, these decisions can be swayed by political considerations. Petteri Orpo and Ursula von der Leyen hail from the same political family, the centre-right European People’s Party (EPP), which made border management a pillar of its 2024 campaign.
The reform of migration and asylum policy spearheaded by von der Leyen contains precise articles to deal with cases of instrumentalisation, a key demand from Eastern states. Under the Crisis Regulation, member states will have extra time to register and examine asylum claims without letting applicants into national territory.
But the overhaul, which painstakingly covers all stages of the asylum process, does not foresee an automatic rejection of applications, let alone permission to push back.
“These derogations will provide member states with robust and targeted means to protect our external borders,” a Commission spokesperson told Euronews.
“Whilst allowing for specific derogations, member states must ensure the effective and genuine access to the international protection procedure, in accordance with Article 18 of the EU’s Charter of Fundamental Rights and the Geneva Convention.”