Border Crisis as a Crisis of Law: National Security & Mobility Rights at the Eastern Border of Finland

Jaana Palander & Mehrnoosh Farzamfar

Åbo Akademi University & University of Turku

Background

Derogating from human rights and/or restricting them is part of managing crises. During the COVID-19 pandemic, many countries, including Finland, implemented various measures to control the spread of the virus. The imminent threat against public health led to the declaration of a state of emergency and restrictions on the right to the freedom of movement of people (referred to here as mobility rights). In March and April 2020, for example, the Finnish Government closed the Uusimaa region (the capital area), and during the pandemic, it frequently imposed restrictions on entries from inside and outside the Schengen area. Recent research has demonstrated how these restrictions have violated the enjoyment of human rights.

The conclusion of the COVID-19 pandemic, however, did not guarantee the return of mobility rights. Following the Russian invasion of Ukraine and Finland’s consequent NATO accession, Finland’s Eastern border has witnessed an increase in the number of immigrants. This phenomenon has been labelled by the Finnish Government as a form of hybrid warfare – ‘instrumentalisation of immigration’ – and is regarded as a threat to the national security and public order of Finland. As an immediate response, the Finnish Government has issued decrees to close border crossing points with Russia since November 2023. The periods of total closure of the border with Russia have derogated from mobility rights, including the rights to enter, to leave, and to seek asylum. Furthermore, the Finnish Government has drafted a law proposal (HE 53/2024 vp) to combat instrumentalised immigration by derogating from the right to seek asylum at borders. The only exception would be applications lodged by vulnerable people (mainly children and disabled people), the assessment of which is left to border guards. In this blog post, we argue that portraying asylum seeking merely as a matter of national security will erode the right to seek asylum from the list of human rights.

Learning from the Past: COVID-19 Pandemic

In Finland, rights can be derogated from and/or limited during the states of emergency under Section 23 of the Constitution. Any restrictions, however, must pursue a legitimate aim and be necessary and proportionate, while respecting non-derogable rights (such as the right to non-refoulement). In addition, EU law and human rights obligations must be fulfilled. The legal ground for restrictions on mobility rights lie in Sections 15 and 16 of the Finnish Border Guard Act. Accordingly, a temporary reintroduction of border control could be imposed between the Schengen countries, and a temporary or continuous restriction on the external borders, as long it meets the constitutional requirements.

In 2020, the activation of the Emergency Powers Act by the Government and the President allowed further reaching restrictions on mobility rights. The main problem was not the legal basis for restrictions but the application of Government decrees at the borders by authorities. Though this Act provided the legal basis for restrictions on mobility rights, in undertaking the balancing act required by the Constitution, law enforcement authorities could not show that the criteria for restricting or derogating from rights were met. As mentioned in the introduction to this post, studies on legislative oversight – based on the decisions by the Finnish Parliamentary Ombudsman – have shown that certain aspects of mobility restrictions were disproportionate or unnecessary and hence in violation of several human rights.

The Current Border Crisis: The Instrumentalisation of Asylum Seeking

There are some constitutional similarities between the current border crisis and what was experienced during the COVID-19 pandemic in Finland. To manage both crises, some mobility rights and human rights are heavily restricted – including the right to seek asylum and the right to family reunification. In both cases, the Finnish Border Guard is entrusted with an exclusive power to determine access to human rights.

The main difference between the two crises, however, is that restrictions on mobility rights during the COVID-19 pandemic followed the declaration of a state of emergency and relevant parliamentary decisions, which were made in accordance with the Finnish Constitution and the Emergency Powers Act (even if there were some problems with implementation of the restrictions at the borders). In contrast, the current absolute restrictions on mobility rights and derogations from the right to seek asylum at the Eastern border are not the result of such legal processes. A pressing constitutional legal question thus remains: on what legal ground is the Finnish Government limiting mobility rights and human rights? This question is warranted particularly since the restriction is based on classified security information, not available to public or legal scrutiny.

Amendments made to the Border Guard Act in 2022 have allowed the current closure of border crossing points. According to Section 16 of this Act, the Government may concentrate asylum applications to one or several border crossing points in case of mass immigration or instrumentalisation of immigration. However, currently, seeking asylum is not possible at the Eastern border and the applicants must use airports or harbours. Heavy carrier sanctions on airlines and ships have made this option practically impossible, as EU immigration law has for a long time required visas from citizens of countries most in need of international protection.

It is also remarkable that the Government has not asked for emergency powers in this situation but considers it can be handled within the normal legislative framework. However, the proposed law is in apparent conflict with international and EU law. In May 2024, the EU Council adopted its new Pact on Migration and Asylum, which takes a different approach to regulation during crisis for the reason of instrumentalisation of immigration. The EU Crisis Regulation does not allow full closure of a border, nor suspension of the asylum system. To overcome this constitutional problem, a majority vote in the Parliament is required (Section 73 of the Finnish Constitution). However, the conflict with international and EU law remains.

A Crisis of Law: Instrumentalisation beyond Securitisation

The Government’s new proposal recognises relevant human rights obligations and admits several conflicts with non-derogable human rights such as the principle of non-refoulement to torture and other forms of ill-treatment. The Government argues that the breach of human rights norms is justifiable on national security grounds, emphasising that the situation at the border is not an asylum issue but a security question. But earlier research has demonstrated the securitisation of immigration in the EU and Finland, and, therefore, the credibility of security threats needs to be examined carefully.

The current situation at the Finnish Eastern border is described by the Finnish Government as a hybrid attack waged by Russia, whereby Russia is manipulating information campaigns and transporting asylum seekers towards Finland. As a hostile act, the Government refers to Russia suspending the Border Agreement and allowing asylum seekers to approach the Finnish border without necessary travel documents. However, the termination of such agreements is not against international law, and nor is allowing people to leave warfare (also see Geneva Convention IV, Articles 35 and 36).

Despite Russia’s facilitation of the arrival of some asylum seekers at the Finnish Eastern border, their need for international protection may be real. Yet, the Government proposal ignores this need and the legal challenges to seeking asylum. There is a real displacement crisis in the world, and the answer is a matter of immigration and asylum policy. Therefore, the difference between managing large numbers of asylum seekers and combatting instrumentalisation should be clarified.

Although threats to national security are repeated in the Government proposal, it is not clear if these threats meet the constitutional threshold for suspending the admission of asylum claims. One cannot but think that this is an asylum issue instead of a security issue after all. The strong emphasis of the Finnish Government on national security threats makes one wonder whether the securitisation of immigration has resurfaced with a new vocabulary: ‘instrumentalisation of immigrants as a hybrid warfare.’ This approach to mobility is one step beyond securitisation – it is being called the militarisation or weaponisation of immigration. Knowing that the securitisation of immigration erodes mobility rights and human rights, there is a danger that a militarised approach will leave nothing of those rights.

Mehrnoosh Farzamfar is a postdoctoral researcher in laws at the Faculty of Law, University of Turku, Finland, and a lecturer in migration law at several Finnish universities.

Jaana Palander is a doctoral candidate in public law at Tampere University, Finland, a research assistant at the Faculty of Law, Åbo Akademi University, and a visiting lecturer at the Law School of the University of Eastern Finland.

Suggested citation: Mehrnoosh Farzamfar and Jaana Palander, ‘Border Crisis as a Crisis of Law: National Security & Mobility Rights at the Eastern Border of Finland’ IACL-AIDC Blog (11 July 2024) Border Crisis as a Crisis of Law: National Security & Mobility Rights at the Eastern Border of Finland — IACL-IADC Blog (blog-iacl-aidc.org)

Acknowledgement

Authors’ acknowledgement: This work is supported by the following research projects, both of which are funded by the Strategic Research Council (SRC), established within the Academy of Finland: Mobile Futures – Diversity, Trust, and Two-Way Integration (grant decision numbers 345154 and 345405) and Just Recovery from Covid-19? Fundamental Rights, Legitimate Governance and Lessons Learnt (JuRe with grant decision number 345950).