The debates concerning Finland’s asylum politics and especially humanitarian visas brought out the worst in many decision makers. I have been digging deeply into the documents related to the decision-making process, and was recently wondering what the results might be today, a year after humanitarian protection could no longer be granted. I did not have to look far, as the leading Finnish newspaper Helsingin Sanomat published an article last Sunday giving us quite a good picture of, I’m sure, just one grave example.
One of the main justifications behind Finland giving up its provisions on humanitarian visas for those not qualifying for asylum (State declared refugee status) or a residence permit on the basis of subsidiary protection was that taking such action was complying with EU legislation, that being an aspect of the whole process which does not cease to frustrate me. More specifically, the claim was, that “it is important to ensure that Finnish law and practice are not more favorable than that those of other MS and the EU’s minimum requirements”. (1) This is the worst kind of area to begin a race to the bottom in, and furthermore, I beg to differ about that whole line of reasoning. First of all, the EU does not currently have exclusive competence in this area, nor has it even claimed to have legislated in such a fashion that MS not remain free to grant higher protection. Actually, the Court of Justice (CJEU) confirmed in a recent ruling that since “no measure has been adopted, to date, by the EU legislature on the basis of Article 79(2)(a) TFEU, with regard to the conditions governing the issue by Member States of long-term visas and residence permits to third-country nationals on humanitarian grounds, the applications … fall solely within the scope of national law.”(2) It is an interesting case in which the Court rules against Advocate General Mengozzi’s eloquent opinion and makes a controversial decision in regards the the Charter of Fundamental Rights, raising a lot of criticism, and in my opinion rightly so. Nevertheless, despite the fact that the ruling disregards the application of the Charter as the humanitarian visas remain solely in MS competences (thus EU law does not apply to them), what often seems to be forgotten by the MS and disregarded by the CJEU is that they have other international obligations they must follow. Furthermore, the very EU legislation in question in that case, in so far as it mentions humanitarian visas, Article 25(1) of the Visa Code (Regulation (EC) No 810/2009) gives MSs some discretion to ‘exceptionally’ issue a humanitarian visa, when they ‘consider it necessary on humanitarian grounds … or because of international obligations’.
There is a vast body of case law from the European Court of Human Rights (ECtHR) on the applicable principles of the European Convention of Human Rights (ECHR), those being the very international obligations that oblige MSs. Though it has been settled time and time again that the MSs have the sovereign right to control the entry, residence and expulsion of aliens, they are simultaneously obliged to comply with the obligations arising from Article 3 ECHR. This is true even when those very states are experiencing difficulties coping with a mass influx of migrants and asylum seekers, as many are today. Article 3 prohibits states from expelling persons to countries where they are at risk of being subjected to torture or inhuman or degrading treatment. Some argue, that this limits MS discretion in issuing humanitarian visas by making it their duty to do so.
The case law and current understanding of duties arising from the ECHR are not something the EU is oblivious toward, nor are humanitarian visas unknown to MS: in 2014 16 or more MS had or had had a scheme for issuing them. (3) The European Parliament, recognizing and advocating time and time again for the need for legal routes to enter Europe (4), has initiated need specifically for a common visa scheme as a part of the EU response to both the lives lost at sea and the growing smuggling and trafficking phenomena.(5) As AG Mengozzi points out in aforementioned opinion: “Frankly, what alternatives did the applicants in the main proceedings have? Stay in Syria? Out of the question. Put themselves at the mercy of unscrupulous smugglers, risking their lives in doing so, in order to attempt to reach Italy or Greece? Intolerable. Resign themselves to becoming illegal refugees in Lebanon, with no prospect of international protection, even running the risk of being returned to Syria? Unacceptable.” (para 157)
So, what aliens in fear for their life arriving in Finland are left with are two options. The first is asylum, if they arrive in Finland owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership in a particular social group or political opinion (with a few exceptions)(6). Section 87b (323/200) provides the guidelines to the assessment of reasons for persecution, in which “account shall be taken at least of factors relating to origin, religion, nationality and political opinion, or membership of a particular social group”. The second option is subsidiary protection (Section 88 (323/2009)), given if “the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail him or herself of 32 the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts.” Who these two provision now leave out of the scope of protection are the persons that cannot return their country of origin or country of former habitual residence due to an environmental catastrophe or a bad security situation which may the result of an international or internal armed conflict or a poor human rights situation. Taking into account the criticism relating to many of the lists currently drawn up and in use about safe third countries, one can only imagine the destruction that may await people in countries recognized as having “a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation” (which formerly fell under the provision laying grounds for humanitarian protection), yet not quite amounting to current standards for issuing residence permits.
Helsingin Sanomat reported (7) on Sunday May 7 about asylum seekers and persons illegally residing in Finland after having been declined asylum who are now selling sex for 25 to 60 euros. This is not because they necessarily wish to do so, but rather they have found it to be an easy way to make some money – enough to survive in Finland, whether or not legally. The article illustrates the dangerous situation especially persons of gender and sexual minorities are put in, often facing discrimination and violence. Yet they are here and prefer to stay here, where our Alien’s Act deems only that a common characteristic of a social group may also be sexual orientation, and where “gender-related aspects do not themselves alone create a presumption of persecution”, where selling sex for cash, subject to violence and crimes and put in an extremely vulnerable position is better than returning to their countries of origin. In the article, worry is expressed by researchers about this very position that these “newly paperless” are put into. This is due to the fact that those exposed to crimes whilst illegally residing in Finland are given no protection of the law.
Given the knowledge of the amounts of people subjected to trafficking, the vast numbers of persons that have gone missing, and the number of persons that often face sexual violence, this phenomena is rendered even more dangerous. I am worried that the lack of humanitarian visas will render the vulnerable even more vulnerable, and victims will continue to live here without protection, this setting, flowing from impunity and normative expectations, gives further incentives to perpetrators of crimes. Even the provisions in the Alien’s Act for issuing a residence permit for a victim of trafficking in human beings (Section 52a (619/2006)) seems but a slim hope, as it does not allow for security that the victim will actually receive the residence permit, thus creating a risk of deportation to their countries of origin, in which they may be faced with a bad security situation, due to an international or internal armed conflict or a poor human rights situation (just not one deemed to proven as persecution on the given grounds, or amounting to torture). This, it seems, is the bigger fear for many, who prefer to face the dangers they currently face whilst selling what they can to feed themselves and their families and stay in Finland, a country which prides itself in its security and human rights standards, yet leaves them without any effective venues for protection.
To me this sounds like a downward spiral, the lack of humanitarian protection now resulting in heightened vulnerability for persons that are here to stay. Because they now have no legal route to residence, they reside here, subjecting themselves to crimes with no protection of the law, and working, undocumented, in the only ways they can. This, in my opinion, though certainly in line with the word-to-word minimum standards of EU law, does not comply with either the international obligations of MS (including Finland), especially that of Article 3 ECHR, nor does it reflect the purpose of the grounds provided in EU law for issuing visas on humanitarian grounds.
(1) HE 2/2016 p.3
(2) C-638/16 PPU X and X v État belge, para. 44
(3) Directorate-General for Internal Policies, Citizen’s Rights and Constitutional Affairs’ Policy Department. Humanitarian visas: option or obligation? A study for the LIBE Committee, 2014, p. 7
(4) See, for example: European Parliament. P8_TA(2016)0102 The situation in the Mediterranean and the need for a holistic EU approach to migration European Parliament resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration (2015/2095(INI)), paras. P-R
(5) Ibidem, and: EP Policy Department for Internal Policies, Citizen’s Rights and Constitutional Affairs. Briefing – Towards an EU humanitarian visa scheme? PE 556 950, 2016
(6) The Finnish Aliens Act (301/2004) Chapter 6 Section 87
(7) Satu Vasantola HS. Samettiverhojen takana. Helsingin Sanomat, 7.5.2017