The Council of Europe's Commissioner for Human Rights, Michael O'Flaherty, has called on Finland to reject a bill aimed at curbing instrumentalised migration, saying that the draft legislation "raises a number of significant human rights concerns".
A reaction to Russia's instrumentalised migration, the draft law aims to prevent people attempting to cross the eastern border from seeking asylum.
If the bill passes, the government could, under certain conditions, decide to limit the reception of asylum applications on its border. A person who has already arrived in Finland would be removed from the country and directed to a location accepting applications for international protection.
The law proposal would need the support of five-sixths of MPs — and would be in force for a one-year period.
Human rights concerns
O'Flaherty leads the Council of Europe, a 46-member organisation dedicated to upholding democracy, human rights and the rule of law. It is separate from the European Union.
He sent a letter about the matter last week, addressed to Finland's Speaker of Parliament Jussi Halla-aho (Finns), Administrative Committee Chair Mauri Peltokangas (Finns), Chair of the Constitutional Law Committee Heikki Vestman (NCP) and Foreign Affairs Committee Chair Kimmo Kiljunen (SDP).
The human rights chief stated that the proposed legislation "raises a number of significant human rights concerns, including with regard to the principle of non-refoulement, collective expulsion, and effective remedies, among others".
The non-refoulement clause forbids signatory nations from returning asylum seekers to a country in which they would potentially face persecution.
O'Flaherty noted that the prohibition of refoulement "is not subject to limitations clauses (including in relation to national security) and cannot be derogated from, even in terms of an emergency threatening the life of a nation".
The commissioner said that in his view, the draft law's case-by-case vulnerability assessment would be "inadequate to prevent refoulement in all cases," adding that there would be a risk that some people would be left unprotected.
As examples, he said migrants belonging to those groups include individuals "not immediately recognisable as a minor, as a person with a disability or as otherwise being particularly vulnerable, would be unable to benefit from this provision".
O'Flaherty also suggested that border guard officials may not always have the "competence and ability" to make such difficult assessments on a case-by-case basis.
He added that it remained unclear how such assessments would be carried out that would make it clear whether a person "faces a real risk of being subjected to the death penalty, torture, or other treatment violating human dignity".
National security grounds
The commissioner noted that the government's draft law relies heavily on national security grounds, but pointed out that "such grounds can never be invoked to justify refoulement".
"While member states are given a certain margin of appreciation with regard to the restriction of certain rights on grounds of national security, invocation of national security cannot be used as a carte blanche," O'Flaherty stated.
"It is my view that it is a fallacy to assume that the relationship between human rights and national security is a zero-sum game. Rather, human rights-compliant national securities are the more effective ones," he stated.
The commissioner also warned that if Finland were to pass the bill, it would set a precedent for other countries "including those with a less developed practice of upholding human rights".
"I therefore fear that it could set a destabilising precedent, at a time when the global asylum system is already under great pressure and subject to significant backlash, and weakening the very values which states, that seek to instrumentalise migration, wish to undermine," O'Flaherty's letter said.
The human rights chief asked Finnish MPs to not adopt the draft law and to instead deal with the challenging issue of instrumentalised migration by engaging with domestic and international partners.
EDIT 16:14 Removed references to the council as an EU body.