Tytti Tuppurainen, the chairperson of the Social Democratic Parliamentary Group, spoke to reporters in the foyer of the Parliament House in Helsinki on 19 June 2024. Tuppurainen on Wednesday stated on YLE A-studio that it is still possible that the opposition group chooses not to support the government’s bill for a special border security act. (Markku Ulander – Lehtikuva)

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A GOVERNMENT BILL for a special border security act that would enable the temporary suspension of asylum application reception has generated heated debate within the Social Democratic Parliamentary Group, chairperson Tytti Tuppurainen admitted on YLE A-studio on Wednesday.

“Let’s just say that this hasn’t been a pleasant stroll in the park,” she characterised.

The bill would enable the government to suspend the reception of asylum applications in limited areas at and in the vicinity of national borders for up to a month and, in effect, delegate the responsibility for assessing whether applicants have a legitimate claim for international protection to individual border officials.

The government has argued that such legislation is necessary to combat so-called instrumentalised migration – the use of migrants in foreign influence operations.

While the government has conceded that the bill stands in tension with international human rights treaties, legal experts have estimated that it violates both international commitments and the constitution. Also border officials have expressed their concern about the bill, viewing that it would put border guards in situations where enforcing the act would constitute a violation of their official duty and expose themselves to litigation.

A parliamentary majority of five-sixths will be required to pass the bill as a special act. With the Green League and Left Alliance opposing and the Centre supporting the bill, the Social Democrats are set to decide the fate of the bill.

Also the Swedish People’s Party has ruled that its members can vote on the bill with their conscience.

Tuppurainen on Wednesday indicated that tempers within the parliamentary group have flared during the process but voiced her confidence that the group will be able to form a unanimous position on the bill. Helsingin Sanomat has reported that members of the opposition party have been instructed to discuss the issue publicly only “at a general level” and refrain from announcing their support or opposition to the bill.

The bill is presently being weighed up by the Parliament’s Administration Committee. Tuppurainen stressed that the committee has find ways to minimise the risk that the act violates international treaties in order secure the support of the Social Democrats.

“It’s possible [we won’t support the bill]. It’s too early to say that this is done and dusted,” she remarked to the public broadcasting company.

The Social Democrats are also demanding that the bill be subjected to a second review by the Constitutional Law Committee. “Yes, it’s indeed an absolute requirement,” commented Tuppurainen.

She estimated that the bill could be presented to parliament next week at the earliest.

The Constitutional Law Committee on 18 June ruled that enacting the special act is necessary and possible by a vote of 15 for and 2 against while acknowledging the incongruence it has with binding human rights obligations. The Administration Committee, it added, has to revise the bill and consolidate the legal protection of migrants with a retroactive legal protection mechanism.

Fatim Diarra (Greens) and Anna Kontula (LA), the two committee members who voted against the position, said the committee was walking over experts by approving human rights violations.

Helsingin Sanomat revealed earlier this month that enacting the bill was deemed unfeasible by all of the 18 legal experts who appeared before the Constitutional Law Committee. It was ruled to be problematic from the perspective of three basic and human rights: the principle of non-refoulement, the right to seek asylum and the right to an effective remedy and fair trial.

The experts commented on the bill before it passed the Constitutional Law Committee.

Allan Rosas, a former judge at the Court of Justice of the European Union, argued to the newspaper that the bill should be evaluated first and foremost through the lens of EU law.

“The government proposal is principally in violation of EU law because it’d violate the principle of non-refoulement, the right to seek asylum and the right to effective remedy and fair trial. The EU court has never sanctioned exceptions from asylum-related regulations, even when national security has been cited [as justification],” he said on 14 June.

The bill completely circumvents the asylum procedure directive of the EU, viewed Juha Raitio, a professor of European law at the University of Helsinki.

“This isn’t a matter of opinion, but circumventing it goes flagrantly against EU law,” he underlined.

Päivi Leino-Sandberg, a professor of transnational European law at the University of Helsinki, estimated that the special act would likely have no practical impact. “Even if you enacted ten national laws about the topic, the rights afforded to arrivals under the union’s directives would stay in effect under the surface and take precedence relative to national laws.”

The experts also drew attention to the untenable position of border officers in the event that the act is passed. Sakari Melander, a professor of criminal law at the University of Helsinki, said border officers would have to determine through brief interactions which migrants are allowed to apply for international protection.

“Border guards would on one hand have to adhere to the special act, but on the other hand it’s their official duty to respect basic and human rights and adhere to EU law,” he said. “This raises serious questions also from the perspective of the principle of the legality of criminal offences and penalties because the special act would blur what regulation border guards would have to adhere to and how under their official duty.”

Aleksi Teivainen – HT

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