01 December 2023

A Borderline Case 

When National Security and the Right to Asylum Conflict

On 28 November 2023, Finland decided to close all its land border crossing stations to Russia. This was done pursuant to a still-recent amendment to the Border Guard Act, from 2022, which permits closing the border in case a foreign power instrumentalizes migrants in relation to Finland’s territory. Russia’s apparent instrumentalization of migrants at the Finnish border adds a geopolitical dimension to the complex legal questions surrounding ‘conventional’ mass immigration, familiar from the past decade notably from the European Union’s (EU) southern border in the Mediterranean. That a foreign power, which conducts war elsewhere in Europe, directly engages in unfriendly acts against the EU’s (as well as NATO’s) eastern flank highlights the issues of national security involved.

As of early November, Russian actors have reportedly facilitated the offer of ‘travel packages’, advertised especially in Arabic-language social media channels, for migrants to acquire visas, transportation and vehicles to access the Finnish border through Russia. Since then, an uptick in arrivals has been recorded. Although outside temperatures have plummeted, increasing numbers of ‘not suitably dressed’ migrants have appeared even beyond the Arctic Circle. In November, in total more than 900 asylum seekers arrived at Finland’s eastern border. Close to the checkpoint, the migrants have reportedly been given a bicycle, pointed towards the border, and exhorted not to turn back (see migrant interviews here). Comparable unfriendly acts of instrumentalization of migrants are, of course, familiar from the Polish, Latvian, and Lithuanian border area with Belarus since 2021.

While national security concerns run high, migrants are caught in the middle. The goal of the Finnish Government’s most recent action is, in the words of the Interior Minister, to send a clear message to potential migrants around the world: ‘don’t come — the border is closed’. At the same time, the people flow largely depends on facilitation by Russian authorities (the latter officially deny any involvement). The situation is part of a broader European dilemma but presents certain idiosyncracies. How is an EU Member State such as Finland, respectful of the rule of law, to respond to such unfriendly acts which intrumentalize the vulnerable position of asylum seekers whose rights must, in principle, be observed at all times? This brief post addresses some of the legal issues involved in the currently unfolding situation.

Justifying Full Closure

While the European Union’s (EU) legislative response to the Belarusian instrumentalization of migrants in 2021 has yet to produce binding norms, Finland has concurrently pursued its own national legislation in this field. A proposal to amend the Border Guard Act resulted in hotly debated new powers for the government in 2022. Under Section 16, as amended, the government may, where it is ‘established or with reason suspected that immigration occurs due to the influence of a foreign power or other operator’, restrict the places where international protection can be sought to a limited number of border checkpoints. The rationale was to equip the government to respond to future threats involving instrumentalized migratory flows and, in particular, to prevent that a foreign power could de facto trigger a state of emergency in Finland because sufficient powers would not exist in regular legislation.

The most contested aspect of the amendment was its potential impact on the affected migrants’ right to seek asylum. The principle of non-refoulement is enshrined in Section 9 of the Constitution of Finland as well as in EU law and in Finland’s international commitments. The Constitutional Committee of the Finnish Parliament, which systematically engages in ex ante constitutional review of parliamentary acts, underlined in its opinion (37/2022) that the use of the new powers must not result in a violation of this principle. At the same time, the Committee greenlighted the amendment noting that, in the case of instrumentalized migratory flows, a complete closure of the border could exceptionally be possible, provided this would be limited in time to only what is absolutely necessary [para 30].

Relying on this amendment, the Decision of 28 November 2023 closes all land border checkpoints between Finland and Russia for a period of two weeks (air and sea borders remain unaffected). According to the Decision, the phenomenon of instrumentalized migration and its potential escalation may lead, among other factors, to the uncontrolled entry of persons with links to war crimes and even soldiers posing as civilians and, in any event, to widespread insecurity in society. Particularly interesting, for present purposes, is the extensive legal assessment contained in the annexed Memorandum. It openly acknowledges that the measures may be ‘in tension’ with EU law but nonetheless concludes that no directly controlling case law exists. Thus, in light of the highly exceptional situation at hand, the government suggests that ‘circumscribed and precise, indispensable and proportionate limitations’ to the right to seek asylum are ‘justified and at least de facto and in practice acceptable’ [p. 20].

When Balancing is Not Enough: On National Security and Non-Refoulement

The instrumentalization of migrant flows remains uncharted legal territory. The potential constitutional difficulties it creates are however clear as the light of day. A total land border closure implies a tension between the State’s asserted prerogative to ensure national security and the human right to seek asylum. While Finland has a sovereign prerogative to control aliens’ entry into its territory subject to its international obligations (see eg ECtHR, Saadi v UK, § 64), and even an obligation to protect the EU borders and to ensure the safety of its own inhabitants (see eg Schengen Border Code Art 13; EU Charter of Fundamental Rights Art 6), it must particularly not impinge on migrants’ right to seek asylum in a way which would violate the principle of non-refoulement (see on the various sources regarding the concept eg here).

For lawyers, the concept of instrumentalized migration presents a thorny prospect. A classic ‘balancing’ exercise in constitutional law, whereby two non-absolute rights are weighed against each other to achieve the desirable outcome, does not resolve the dilemma here. In fact, the tension between the State’s prerogative to attend to genuine national security concerns and the migrants’ non-derogable right to non-refoulement arguably cannot be framed in the terms of ‘balancing’. On the one hand, due to its non-derogable nature, non-refoulement precludes balancing as a legal matter; on the other hand, States consider their core national security prerogatives existential.

Changing Contexts and Stagnant Legal Regimes

Yet, as the situation on Finland’s eastern border demonstrates, law must provide a satisfactory solution to address the tension. It is possible to begin approaching the problem by acknowledging that much of the existing asylum law has evolved in a context fundamentally different from that of instrumentalized migration. The principle of non-refoulement has been amply fleshed out in the law of mass migration which is ‘conventional.’ By this, I mean that ordinarily migratory flows are not directly facilitated as a policy instrument by a foreign power (see eg ECtHR ND and NT v Spain and Hirsi Jamaa and Others v Italy), even though governmental action is often indirectly the cause of migration. However, in the context of directly instrumentalized migration, the threat to national security is not primarily linked to immigration per se but above all to the deliberate conduct of a foreign power.

The problem also partly resides in the inter-State structure of classic public international law. Russia should, ideally, be held internationally responsible for its instrumentalization of migrants and for its intervention directed at Finland’s borders. However, enforcing that responsibility, even if feasible, can do little to help migrants. Finland may be, as a matter of international law, justified in taking countermeasures, such as a border closure, against the Russian State, while the instrumentalization of migrants continues (see eg Draft articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, p. 130). Yet, this may indeed only exacerbate the plight of migrants who are forced towards the border area. Whether instrumentalized migration can serve as additional grounds for further EU sanctions against Russia remains to be seen. Even so, such measures are unlikely to directly afford relief to the migrants affected by the situation.

The EU’s Standard of Legality in Cases of Instrumentalization

As for the legality of Finland’s actions, the most salient consideration is their compatibility with EU law. Indeed, the closest nexus for evaluating the legality of the government’s present action is found in the Court of Justice’s judgment in Case C-72/22 PPU. The ruling established that, even in the context of instrumentalized migration by Belarus, Lithuania could not deprive migrants of the right to seek asylum on the ground that they had crossed the national border illegally. Two points are significant. First, the discretion available to Member States to determine, under Article 6 of the Procedures Directive 2013/32, where applications for asylum are to be lodged cannot be exercised so as to practically prevent third-country nationals from lodging them (see para 65). Second, Article 72 TFEU, which provides for a derogation from the Union’s asylum rules particularly on grounds of ‘safeguarding of internal security’, requires, at the very least, specific reasons detailing the security threat going beyond the mere reliance on the general responsibilities of the Member State in this regard.

This post will not definitively assess whether Finland’s action is in all respects compatible with EU law. However, there are significant differences between the Lithuanian and Finnish situations. In Lithuania, the applicable rules were those of a state of emergency and resulted in a far-reaching denial of the right to seek asylum in Lithuania as regards illegally staying third-country nationals (see C-72/22 PPU, paras 24 and 27). By contrast, Finland’s closure of the eastern border relies on the Border Guard Act. The provisions of the latter have been specifically crafted in view of ‘instrumentalized migration’ and include certain procedural and substantive safeguards, including for vulnerable persons. In addition, the border closure, as currently envisaged, is very limited in time. However, the closure by nature makes seeking asylum in Finland more difficult, if not impossible, for persons arriving by land. A full assessment inevitably depends on how the situation on the border will develop in the future.

Upholding Legality in the Face of Illegality

Instrumentalized migration poses a particularly thorny legal dilemma since the phenomenon finds its root cause in the breach of various legal rules by the State engaged in such instrumentalization. For the affected State, it is a situation of ‘damned if you do; damned if you don’t’. Indeed, by preventing such migration, it is not easy to rule out all potential violations of non-refoulement; yet, if no measures are taken to prevent escalation, the genuine threats to national security may materialize. What is clear is that the problem is unlikely to be resolved by mere law.

That said, it is fundamental that States such as Finland, which find themselves having to address the phenomenon of instrumentalized migration, do so with openness about their legal obligations. These pertain both to national security and the human rights of the migrants whose lives are abusively used as pawns in the foreign policy gamble of an irresponsible foreign actor. In the meantime, while the moral blame of the situation lies with the perpetrator, Finland, and thus the EU, has a very practical problem in its hands as long as the situation persists.

SUGGESTED CITATION  Pohjankoski, Pekka: A Borderline Case : When National Security and the Right to Asylum Conflict, VerfBlog, 2023/12/01, https://verfassungsblog.de/a-borderline-case/, DOI: 10.59704/3ab1c58db4f8b755.

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