Markus Himanen and Lauri Jäntti
The “Closure” of the Balkan Route and Hungary After the Summer of MigrationResidence Permits instead of Deportations and Criminalisation!
Since 2015, the tightening of asylum policy in Finland has resulted in both a humanitarian disaster and an administrative deadlock. Thousands of applicants are still waiting for a final decision. The government is threatening forced returns and criminalisation instead of providing solutions that would guarantee the realisation of fundamental rights.
Asylum policy fundamentally changed in Finland during the fall of 2015 and the spring of 2016. In the first six months of 2015, 81 percent of the asylum decisions concerning Iraqi citizens (excluding uninvestigated and closed applications) were positive, but in the spring of 2017, only 37 percent of the decisions were positive. 80 percent of Afghani citizens received a positive decision in the spring of 2015, while only 46 percent did so in the spring of 2017.
What happened? During that time, Finland tightened legislation by abolishing residence permits based on humanitarian protection, tightening the conditions for family reunification, and weakening legal aid for asylum seekers. However, according to a recent study, the most significant change occurred in the decision-making process of the Finnish Immigration Service (Migri).
A study published by the University of Turku, Åbo Akademi University, and the Equality Ombudsman, compared samples of asylum decisions in 2015 and 2017 concerning Iraqi citizens aged 18 to 34. According to the researchers, the legal status of asylum seekers deteriorated significantly during this period. A key explanatory factor was the tightened policy of the Finnish Immigration Service: the danger posed by similar events was deemed less significant to the applicant in 2017 than before, and the credibility of the applicant’s report was more often questioned. The study showed that the large number of negative decisions was due to changes in how the law was interpreted, and not due to the new background of the applicants; applicant profiles did not change much based on this sample.
Because of the politically, juridically and morally intolerable bureaucratic measures, there are more asylum seekers with negative decisions than ever before. The political struggle for a just solution to their situation is one of the most important social questions at the moment. Both the lives of the asylum seekers and the future of Finnish state as an entity that respects human- and fundamental rights are at stake.
10 000 Remain in the Bowels of the Asylum Machine
A year ago, it was conjectured that the tightening of Migri’s decision policy would lead to thousands of undocumented homeless people in Finland, forced to live on the street or hide from the authorities. This did not happen. What happened instead were ‘irregular stays’ on a grand scale, a result of prolonged and unresolved asylum processes. The boundary between asylum seekers and the undocumented is not self-evident, neither legally nor in everyday life; a person who has received a negative asylum decision can have an enforceable deportation order, but can still, for example, work legally, live at home, and await the Supreme Administrative Court’s handling of their application for appeal.
In the political debates around irregular stays and deportations, the essential question revolves around the treatment of asylum seekers who have been left without international protection—partly because of the tightened policies of Migri.
People who have received negative decisions have opted for various solutions. Most have appealed their negative decisions in the Administrative Court. Some have applied for asylum again. At the end of 2017, more than 7,500 asylum decisions being handled or in a queue at the Administrative Court. The Finnish Immigration Service was awaiting a review of more than 2,000 administrative decisions. More than 1,800 re-applications for asylum were made last year.
Many have also left Finland for other EU countries, and a significant number of these have sought asylum. However, according to the EU Qualification Directive (the so-called Dublin III Regulation), other member states do not need to process these applications. Dublin-based transfers of asylum seekers back to Finland have increased, and so many are forced to return, and must start the asylum process again in Finland.
In any case, around 10,000 of the asylum seekers who arrived in Finland during 2015–2017 remain stuck in the Finnish or European workings of the asylum machine.
The government has not put forward any meaningful solutions for the situation. The proposals for enhanced deportations are both inhumane and unrealistic. Deporting Iraqi and Afghani citizens is still very difficult. Even though, early on, many returned voluntarily to their countries of origin during the asylum process, this does not mean that any sizeable number of people who receive a negative decision would make use of this possibility.
The number of deportations is still very limited in relation to the number of negative decisions, especially concerning Iraqi and Afghani citizens: in 2017, the police escorted 47 Afghan citizens to Afghanistan and 139 Iraqi citizens to Iraq, according to the National Police Board. Statistics on how many asylum seekers have received an enforceable deportation decision are not made public, but according to a police announcement in April, there were 1,700 people in the “return queue” (YLE, 8 April, 2018).
Implementing deportations is expensive. Deportations are also a source of intense public criticism. A tightened policy and weakened legal aid are issues that have been raised both in the asylum seekers’ protests, and in statements from the judicial authorities. The president of the Supreme Administrative Court, Pekka Vihervuori, has also openly criticised changes made to the law.
Two incidents influenced the debate: in December 2017, after receiving a negative decision in Finland, Ali was deported and subsequently killed in Baghdad; in the summer of 2017, Zaki Hussaini was deported to Afghanistan, but the following morning the Administrative Court forbade the deportation, as his application for a work-based residence permit was still being handled. Hussaini was ultimately granted a work-based residence permit and was able to return from Afghanistan to Finland with the help of his supporters.
Because of the strong criticism, the Ministry of Justice requested an external report on legal aid. Interior Minister Kai Mykkänen asked for an internal report on the Migri’s decision-making and promised afterwards to order an external report.
The Government: Let’s Make Criminals out of Asylum Seekers
As an alternative strategy to the inefficient, force-based politics of deportation the government aims to make life so difficult for asylum seekers who have received a negative decision that they will agree to ‘voluntary return’. In December 2016, the Ministerial Working Group on Migration announced an action plan for preventing and managing irregular stays. The principle actions presented were enhancing surveillance; increasing security measures, such as making use of detention or reporting obligations; and the intensification of sanctions for irregular stays.
The strategy is based on the idea that Finland would become a less appealing destination among asylum seekers. Many of the legislative initiatives implemented after the fall of 2015 were already mentioned in the May government program, and were based on previous proposals by authorities and political parties.
For example, before July 2015, asylum seekers who had not been granted a residence permit, but whom Finland was unable to deport, were given a temporary residence permit. These permits were called B-permits. If deportation was still impossible after two years, these people might receive a regular residence permit, and could reside permanently in Finland.
The decision that came into force in the summer of 2015 seriously eroded the chances of asylum seekers who had received a negative decision to then formalise their status. Since then, when removal from the country is impossible, it has only been possible to obtain a temporary permit when cooperating with the authorities in this regard, and it becomes evident that a return is still impossible.
This change was particularly radical because it meant that reception centres were obliged to evict people with negative decision who refused voluntary return, and whose removal from the country was otherwise impeded. They were thus left without reception centre accommodation, health services, and reception funds.
Between September 2016 and February 2018, reception services terminated access for almost 1,000 asylum seekers who had received negative decisions. According to information from non-governmental organisations working with asylum seekers, the practices of the police and reception centres were not consistent: some applicants’ services were terminated immediately after the Administrative Court dismissed their appeal, while others continued to receive services until the Supreme Administrative Court’s decision. It has also been unclear how the police evaluate who is capable or incapable of returning. According to the Reception Act, services will be cut off only from applicants who the police are not able to return, and who do not cooperate with return attempts. The actions of the police create an impression that applicants are pressured to ‘voluntarily return’ through being forced out of centres and the removal of services. Combined with this, the current actions of the police appear to not take into account or investigate if voluntary return is even possible, and applicants are not given the chance to explain or defend their position.
This policy means that Finland accepts and endorses social isolation and exclusion as methods of managing migration. In the past, immigration policy was based on the idea that people are either returned or given an official status, which under certain conditions, leads to equal membership in Finnish society.
The Three Legislative Initiatives of the Government
Sipilä’s government has launched three legislative initiatives that increase the punitiveness of current immigration legislation. Firstly, a proposal by the Government on 28 March, 2018, is being submitted to Parliament, which would make it easier for foreigners who have committed crimes to be deported. According to the proposal, a foreigner found to have committed a crime, or found dangerous to Finnish society, could be deported based on the decision of the Finnish Immigration Service alone. Deportations could be implemented without waiting for a decision from the Administrative Court. The proposal applies to foreigners who have repeatedly committed crimes or committed an offense punishable by a maximum term of imprisonment of at least one year. In the same way, people who are considered by the authorities to be dangerous based on their criminal record, or for other legitimate reasons could be expelled. The proposal means that people who have resided in or grown up in Finland can be removed from the country, merely due to the interpretation of officials within the Finnish Immigration Services.
Secondly, the Ministry of Justice has proposed that breaking an entry ban should result in a prison sentence. A person who has been denied entry to a country cannot visit Finland or any other Schengen country while it is in force, and the ban will typically be for a period of several years. According to the draft law, the punishment would be a fine or up to one year imprisonment. The government has not yet submitted its proposal on this issue.
The most problematic feature of the draft proposal is that it would criminalise the breaking of an entry ban, irrespective of what the ban was based on.
An entry ban may be issued for reasons of crime or security, but also, for example, because of a manifestly unfounded asylum application; because of a residence permit application which the Finnish Immigration Service has deemed to be a circumvention of immigration regulations (for example, a marriage of convenience); or because of a person not leaving the country within the designated period for voluntarily return.
To date, the most extensive discussion concerning criminalisation sprang from the third legislative proposal, namely a review memorandum sent for a round of comments by the Ministry of the Interior in May 2017, which suggested that irregular stays should be a prison offence. According to the current law, irregular stays can result in a fine, but according to the proposal, it should result in a fine or imprisonment for up to six months. In addition, the memo suggested that the police should have the right to obtain the phone location information of persons suspected of irregular stays. The review memorandum received a very critical reception from both NGOs and, for example, the Non-Discrimination Ombudsman. The memo did not lead to legislative preparation, so the proposed legislative changes are very unlikely to be enacted during this government.
Since this draft law on criminalising the undocumented has not progressed, and the first two have no impact on asylum seekers, it is clear that a policy based on coercive measures is unsuccessful. The protracted legal and political disputes over the legal and social rights of the undocumented have also somewhat improved their status. As a result, voluntary return is not the only option for those who receive a negative decision. For example, in Helsinki, the undocumented have had access to emergency accommodation and temporary housing, and have received social support for food and local public transport. The Ministry of Social Affairs and Health has also announced a nationwide recommendation on this topic. Yet, access to services depends largely on the support of organisations and volunteers, and the local practices of municipalities.
Legalisation as a Solution to the Asylum Dance
The asylum system in Finland has some good features: an undocumented person or asylum seeker may—at least in principle—also apply for a residence permit for other reasons.
As temporary residence permits are no longer granted, work, study and family-based permits are the most important means by which a person who has received a negative decision can formalise their status. Those who give advice to foreigners and their supporters at the Free Movement Network have confronted many of these problems.
Firstly, the Finnish Immigration Service enforces very strict passport requirements: for example, work or marriage permits are generally not granted to people who do not have a passport of their own. People seeking international protection often have no passport. They could legally be granted an alien’s passport, but this has not been done in recent years.
Another problem is that it is opften impossible to submit an application for a residence permit safely. The Finnish Immigration Service informs the police about undocumented persons when they are in the process of trying to formalise their status by going to identify themselves for a residence permit. This leads to the situation of the undocumented being afraid of trying to formalise their status, even if they have a right to residence through an employment contract. Thirdly, Migri often interprets requests for residence permits from asylum seekers who have received negative decisions as attempts to circumvent immigration provisions. Even if the terms of a permit granted for marriage, work or study would otherwise be fulfilled, the applicant will receive a negative decision because the authorities suspect that their real purpose is not to work, study, or be with their family in Finland.
Obtaining a work permit is also hampered by labour market testing. The law is also strictly interpreted: it is difficult for employers to prove that no workforce is available within a reasonable time within the European Economic Area. Additionally, those fields experiencing labour shortages—such as the restaurant sector—are now also subject to additional conditions, relating to, for example, the educational qualifications of employees.
Opposition parties have suggested one solution to the situation, a statement promoting the reinstatement of B-permits (TS, 8 March, 2017). The then incumbent Secretary of the Ministry of the Interior, Päivi Nerg, objected to the proposal (HS 12 May, 2017) by arguing that this would mean that anyone who came to Finland could obtain a residence permit, even if they did not meet any conditions. However, this argument is untrue. The earlier B-permit did not apply to all the undocumented, only to persons who the authorities were in actuality unable to deport. The police have estimated that this group comprises about 1,000 asylum seekers who have received a negative decision from 2016 to 2018. Also, the B-permit did not immediately result in a permanent residence permit. It could be withdrawn after one or two years if circumstances changed. Obviously, the problem is not the impossibility of developing a realistic humanitarian or temporary permit. It is a lack of political will.
Finland has created a bureaucratic mill that churns out the untenable state of being undocumented and its associated endless waiting, marginalisation and mental health problems. The Interior Ministry has implied that problems can be resolved by increasing deportations and encouraging “voluntary” return. Instead of promoting inhumane and ineffective practices, there are more just and more practical solutions available that do not even require legal changes—the Immigration Service would only need to change its decision-making practices. Migri could grant alien’s passports, reduce the use of the circumvention clause, and allow people to safely submit applications for formal status. The demands of labour market tests could also be eased through re-interpreting administrative requirements.
The policy options concerning the situation of asylum seekers with negative decisions are not choices between idealistic and realistic solutions. The most human answer—giving residence permits—would also be the most practical and economical. This wouldn’t right the mistakes in the asylum policy and it wouldn’t remove the need of an inquiry concerning the actions of the government during the autumn 2015, but it would give accesses for the asylum seekers with negative answers to the fundamental rights and a possibility to rebuild their lives that have been interrupted by the Finnish bureaucracy.
- Arviomuistio laittoman maassa oleskelun tutkintakeinoja ja rangaistusasteikkoa koskevista lainsäädännön muutostarpeista [Review memorandum on the judicial change requirements for investigation methods and punitive scale regarding irregular stay], OM 23/41/2016.
- Hallituksen esitys eduskunnalle laiksi ulkomaalaislain muuttamisesta [Government proposal to the Parliament on changing the Aliens Act], HE 24/2018 vp.
- Luonnos hallituksen esitykseksi laeiksi rikoslain 17 luvun, ulkomaalaislain 185 §:n ja aluevalvontalain 44 §:n muuttamisesta [Draft of the Government proposal for changing the Criminal Code chapter 17, Aliens Act §185 and Territorial Surveillance Act §44], OM027:00/2016.
- Saarikkomäki, E., Oljakka, N., Vanto, J., Pirjatanniemi, E., Lavapuro, J. & Alvesalo-Kuusi, A (2018): Kansainvälistä suojelua koskevat päätökset Maahanmuuttovirastossa 2015–2017 [Decisions of the Finnish Immigration Service concerning international protection in 2015–2017]. Turun yliopisto, Åbo Akademi & Yhdenvertaisuusvaltuutettu.
- Statistics: Finnish Immigration Service, National Police Board, Ministry of Interior.
- Toimenpidesuunnitelma laittoman maassa oleskelun ehkäisyyn ja hallintaan [Action plan for preventing and managing irregular stay], Sisäministeriö, 16.12.2016.
Markus Himanen is a researcher and activist versed in migration issues.
Lauri Jäntin haastattelu, haastattelija Johanna Raekallio