Beyond the northeastern border spectacle: The instrumentalisation of hybrid threats to suspend asylum law

Post by Jukka Könönen. Jukka is a critical migration scholar at the University of Helsinki and has conducted multidisciplinary research on immigration enforcement, the European border regime, and migration governance. This post is part of a thematic series on the EU Pact on Migration and Asylum, edited by Giuseppe Campesi and José Angel Brandariz. Read the introduction here.

In November 2023, following the entry of around 1,300 asylum seekers mainly from Syria, Somalia, and Yemen, Finland closed all its border crossing sites with Russia under the pretext of the instrumentalisation of migration and hybrid interference threatening national security and reception capacity. In March 2024, the Finnish Ministry of Interior released a draft proposal “on temporary measures to combat instrumentalised migration” – commonly called the “removal law” – that would enable the government to suspend the asylum procedures and prevent the entry of asylum seekers. Despite heavy criticism over its constitutionality and infringement on the right to asylum under EU and international law, the Parliament passed the law in July 2024 with modifications. Hybrid threats and the instrumentalisation of migration support fundamental transformations in immigration policies beyond the reforms introduced in the Pact on Asylum and Migration, with far-reaching consequences for the asylum system.

From externalised border controls to hybrid threats

In Finland, public debates on immigration have focused on the asylum system following the arrival of a record number of 32,477 asylum applicants in 2015 – around ten times more than in previous years. Due to the substantial drop in the recognition rates for international protection in 2016 and largely unsuccessful voluntary return and deportation policies, thousands of rejected asylum seekers remain in the country. Instead of eastern routes, most asylum seekers arrive in Finland via other Schengen countries, the only recent exception occurring via “arctic routes” at the turn of 2016, first to Norway and then to Finland. Although negotiations with Russia terminated the mobility, according to Norwegian scholars it was due to migrants finding cheaper and safer routes, rather than interference of Russian authorities. Moreover, around half of the 1,721 asylum seekers who arrived at the time in Finland through Russia did receive international protection or another residence status.

Although the 1289.6-kilometer border in a sparsely populated forest area between Finland and Russia is the longest external EU land border, irregular migration has been limited to dozens of individuals annually due to close border cooperation, regulated by bilateral agreements and facilitated by relaxed visa policies for Russian citizens. In practice, Russia has also taken care of EU border controls through several pre-exit checkpoints along the wide militarised border zone, inherited from the Soviet era. The Russian invasion of Ukraine in February 2022 and Finland’s NATO membership in April 2023 fundamentally changed the geopolitical environment, with significant implications for bilateral relations and cross-border mobility. In October 2023, three weeks before alleged instrumentalisation operations, Russia withdrew from its border cooperation agreement with Finland. Rather than migration routes to Finland, the border closure greatly impacts Russian residents and other people with cross-border connections.

While the Finnish authorities have prepared for years for large-scale arrivals of asylum seekers, the EU-Belarus border crisis in autumn 2021 expedited the legislative work in Finland under the hybrid threat framework.  In February 2022, the Finnish Ministry of Interior released a report on the needs for legislative amendments under the title “Preparedness for Use of Migration as a Form of Hybrid Influence Activities”. In addition to expanding border guard powers, the Finnish government decided to build 200 kilometers of border fences along the Russian border. In July 2022, the Parliament accepted amendments in the border guard law that enabled the government to close border-crossing sites and centralise the reception of asylum applications in the case of exceptionally large numbers of arriving asylum seekers or interference by a foreign state. The current border closure extending to a second year is based on this amendment.  

“Removal law” and other reforms to tighten immigration policies 

Contravening the measures stipulated in EU law, the Finnish government aims to prevent the arrival of “instrumentalised asylum seekers” altogether because of known complications in removing rejected applicants. In contrast to the current border closure, the “removal law” enables refusal of entry for “persons used for instrumentalisation” for one month at a time at designated areas, based on information or “grounded suspicion” of attempted interference of a foreign state that seriously endangers Finland’s sovereignty or national security. The law enables the government to restore cross-border traffic, with the option to suspend asylum procedures by a national decision if considered necessary, thereby derogating from EU law as well as the new crisis and force majeure regulation introducing permissible measures in exceptional situations (such as the extension of border procedures and processing times, and solidarity response measures), subject to authorisation by the European Commission.

Under the “removal law”, presumed instrumentalised asylum seekers can be returned without delay, with the exception of vulnerable asylum seekers (such as minors or disabled persons) and persons obviously in need of international protection. In addition to facing the unreasonable discretion to somehow recognize vulnerable people (also criticised by the border guard personnel), individual border guards can face legal sanctions if applying national measures contradicting binding and superior EU law. While the returned people will receive a written notification on the applied procedure, subject to reassessment by request (but without the right of appeal), and directions to submit asylum applications elsewhere, in practice the law enables pushbacks of asylum seekers, thereby risking violating the principle of non-refoulement. However, crisis scenarios of large-scale arrivals of asylum seekers have not materialised, and it is also possible that the removal law will not be enforced.  

Overall, the Finnish government aims to expedite the asylum process and removals with increased control and differentiation of asylum seekers, including the border procedure to screen inadmissible applicants at external borders, the expansion of the expedited processing, and the extension of immigration detention. The recent events at the eastern border also support wider immigration reforms to deteriorate foreigners’ rights on the government agenda, making use of the minimum standards defined in the previously accepted EU directives. In addition to prohibiting alternative legalization opportunities for asylum seekers based on employment, the government intends to make international protection temporary in nature and shorten the respective residence permits (in accordance with the Qualification Directive), tighten the conditions for family reunification (by introducing restrictions enabled by the Family Reunification Directive), and prolong the residency criteria for citizenship from five to eight years and introduce citizenship tests. 

Instrumentalisation of instrumentalisation 

Notwithstanding wider discussions on geopolitics and military strategies, hybrid threats have been increasingly connected with the instrumentalisation of migration since the crisis at the eastern EU border. In November 2021, the EU Commission communication called the state-sponsored instrumentalisation of migrants “a particularly cruel form of hybrid threat” that has “the intention of destabilising or undermining society and key institutions”. Instrumentalised migrants and hybrid threats justify new coercive and exclusive policies, even if – or precisely because of – remaining vague and all-encompassing concepts without clearly defined verifiable criteria to assess the hostile intentions of a third country or the vital state activities under threat, for example. Indeed, almost any irregular cross-border mobility through another state could be labeled instrumentalisation and hybrid interference, even if taking place autonomously. 

The Finnish government documents demonstrate indeterminateness surrounding the instrumentalisation of migration, raising more questions than answers about the role of Russian authorities. In practice, instrumentalisation accounts for any arrival of asylum seekers across the eastern border, and thereby the route taken defines arriving asylum seekers as a threat to national security and excludes them from international protection. Moreover, the threat posed by asylum seekers to national security remains unspecified, as the documents only include vague references to traffic safety, public order disturbances, infiltration of hostile actors, and onward movement of asylum seekers to other European countries. Ultimately, it is the instrumentalisation in itself – the potentiality of large-scale instrumentalisation of migrants and possible foreign state interference – that represents the threat to national security. In fact, security authorities and politicians themselves instrumentalise hybrid threats by labelling asylum seekers as “instrumentalised migrants” to justify the violations of international law. 

The instrumentalisation of migration and hybrid threats evolve the securitisation of migration that has been characteristic of EU policies, yet with more fundamental consequences by transforming asylum seekers into a national security threat orchestrated by a foreign hostile state. According to the UNHCR, the Finnish “removal law” advancing pushback practices sets a dangerous precedent, undermining international refugee law. In June 2024, Nordic and Baltic countries together with Poland released the “Joint initiative on an EU level approach to effectively address instrumentalisation of migration”, demanding possibilities to derogate from EU law on the basis of national security. While often overlooked in discussions on migration policies, which are predominantly focused on the Mediterranean routes, the eastern member states play an important role in the future of EU asylum policies.