Finland’s proposed return law may face EU Court of Justice scrutiny over potential asylum rights violations

Finland could face the European Union’s Court of Justice due to a proposed return law, even if no asylum seekers are rejected at the Finnish-Russian border as a result of it. This scenario could become a reality if the parliament approves the return law on Friday and the European Commission or a member country of the Union raises a violation claim against Finland.

A large group of legal scholars has assessed that the return law would violate the right to seek asylum, the absolute prohibition of return, and the right to effective legal remedies. The prohibition of return prevents anyone from being returned to a country where they face persecution, inhumane treatment, or torture.

The return law is an emergency law, which would aim to prevent the application for asylum for a month at a time along part of the Finnish border, excluding certain exceptions, if a foreign state orchestrated asylum seekers at the border and the government and president found the criteria to be met. The law would be enforced for a year.

In Finland, the Chancellor of Justice Tuomas Pöysti and the Parliamentary Ombudsman Petri Jääskeläinen act as the highest legality inspectors. The pair have interpreted more broadly than legal scholars whether the parliament can enact the return law.

Stubborn violation of EU law can also have costly consequences. As an example, Hungary faced a significant bill for neglecting EU law. The EU Court of Justice found that the country violated the right to asylum, among other reasons, because asylum seekers could not wait for an asylum decision in Hungary. This resulted in a one-time bill of 200 million euros, supplemented with additional costs of 900,000 euros for each day before the required changes this June.

Finland has previously been vocal about Poland and Hungary’s rule of law violations. Now, the parliament may pass a law with a five-sixths majority out of fear of Russia, which may prove to be unenforceable.

This is due to the primacy of EU law over national legislation. If the law is to be applied, border guards would have to ignore Finnish law in parts that are contrary to EU law. Otherwise, they would be breaking the law and ultimately have to answer for it in court.

The return law also aims to prevent appeals in the court process, but Finnish courts are unlikely to be able to do this. Among other things, the EU Charter of Fundamental Rights stipulates that everyone must have effective legal remedies in court.

The return law may therefore end up being dealt with in national courts in both administrative and criminal processes. However, this requires that a person who has been the subject of law enforcement starts to pursue change through legal means, for example with the help of a refugee organization’s lawyer.

This route could also lead to the EU Court of Justice having to give a preliminary ruling. In addition, it is possible that a person seeking international protection could appeal directly to the European Court of Human Rights after receiving the final decision from the Border Guard.