Are you an irregular (paperiton) in Finland


 

There has been a lot of discussion surrounding the the current immigration policy situation in Finland. A lot of rumors get entangled with facts and it is sometimes hard to distinguish black from white since everything just seems gray. This is the reason I wanted to write this article. To give some insight, data and legal proceeding surrounding the situation. If you see some information that is factually wrong, please contact me and I will change it if necessary. I want this to be sort of a guide for general discussion around the topic.

Despair

Background information

(This is a long text, please skip it if you want to just know about the practical questions. However you might get an idea of why the current situation is as it is.)

So what has actually happened since 2015 that forced us into this situation? Until the remodeling of the Common European Asylum System (CEAS) in late 2016 the asylum procedure was never tailored to incorporate mass immigration/asylum seeking. There are several clauses in the Asylum directive that allowed extraordinary action (in case of war or natural disaster) but few countries applied them (Hungary was the first).

According to the EU law the applicants were supposed to apply for protection in the first safe EU county they arrived in. In 2015 the responsibility of that (and taking fingerprints) lay on the actual country and not the applicant. (That has changed since late 2016 where it is the applicants responsibility and can be charged with jail time (following an automatic rejection) if he leaves the country he has applied to). However the amount of people could not be handled by the countries at the time and there was a free flow (organized by smugglers) to almost all target countries (mainly Germany and Scandinavian countires).

Each countries immigration policy was well known in the human trafficking circles as they “marketed” every country for potential refugees. Finland was known to give residence permits at a  higher chance to people from Iraq, Somalia and Afghanistan (and Kosovo in the very beginning). This was due to the protection based on humanitarian reason, an “extra” part of the law that allowed a residence permit even though they wouldn’t qualify for one according to the EU requirements. Also there was a return ban (palautuskielto) to these countries that granted a temporary residence permit (B-permit) for all people from there three countries. Because of that the fees of the smuggling to Finland (and Sweden) were considerably higher than other countries. Finland was also marketed as a place where family reunion would happen in 6 months, something that made a lot of applicants to risk their life to start a new one here.

Because screening of refugees at that level has been made practically impossible and the high amount of money needed to come to Finland there is statistically a great chance that not all refugees were justified. Some had borrowed a lot of money, and others had money already. There were people working for the militia groups and people running away from them all in the same place.

Finland’s government at the time was extremely passive with decision making and professional action which made the situation a lot worse that it could had been. There were a lot of issues with security among all for the security of rightful asylum seekers themselves. A lot of groups saw an income opportunity as long as the movement was not limited which made it difficult to act proactively in many aspects. There were a lot of applicants that were disappointed with the reality in Finland and accepted voluntary return or returned by themselves. However they had overloaded the court system and real applications had to suffer. Meanwhile the media was very protective of the way the government worked and was given an instruction not to incite public fear with negative reporting of the situation. This partly caused some sort of divide and polarization around the immigration policy discussion in general.

In order to deal with applications in a timely fashion (by advice from  The Finnish Immigration Service (Migri) ) the government made several adjustments to the immigration policy. Less rights and tighter schedules were given for applicants. The biggest change happened on 17.05.2016 when it was no longer possible to receive protection based on humanitarian reasons. It was the EU Commission’s request to do so. This caused a lot of negative decisions as it was obligatory to prove a personal continuous threat to be given a residence permit based on asylum grounds.

One of the biggest problem that Finland has had is that it doesn’t have a readmission agreement (palautussopimus) with Iraq and Somalia (they made one with Afganistan in October 2016). That means that it is still a problem to have people physically leave the country if they come from one of these. Finland is trying to be on the same level with other Scandinavian countires which is the reason why security analyses of different areas of the countries are done quite regularly.

And now we are in a situation where people that have got a second (final) negative decision are being deported if they have not chosen the voluntary return. What is crucial is to see whether there have been irregularities in the proceedings leading to the decision and also irregularities with the implementation. For example things like family, health, marriage, work and change of the risk assestment (of the country in question) must be taken into account as a right to appeal if one of them changes. Especially sending children back (as families) has been very controversial since the foreign law (ulkomaalaislaki) says you have to use “common sence” (harkintakyvyn mukainen päätös) in the decision making.

 

Practical questions

Context:

1-Who is irregular?

2-What happens after I become irregular?

3- What happens when I get a return decision?

4- How does the voluntary return work?

5- How much money can I get from a voluntary return?

6- How does forced deportation work?

7- Will I get an entry ban (maahantulokielto) if I use a voluntary return?

8- How long will my entry ban be?

9- Can I apply for asylum in another EU country if I have a ban?

10- Can I be detained during any period of my asylum procedure?

11- What are my rights while awaiting departure?

-EXTRA QUESTIONS:

-Should I just “run away” from the Migri and police

– Should I take a voluntary return?

– I will die if I am returned, what do I do?

 

 

1- Who is an irregular? (1)

If you do not fulfil, or no longer fulfil the conditions for entering or staying in an EU country, you do not have the permission to be there. This could be the case if you do not have a proper visa or residence permit, or if you stay in the country after your visa or permit has expired. (1) In the current case it applies to staying in the country after receiving the final (from Korkein hallintooikeus) negative decision on the asylum application with no appeal option.

 

2- What happens after I become irregular? (1)

If you are found to be staying illegally in the EU you will get a “return decision” (palautuskehotus).  A return decision, from a court or another authority, will state that your stay is illegal and will oblige you to leave the country. While you will normally be expected to return to your own country, you may in some cases be expected to go back to another non-EU country which you passed through on your way to the EU. If you already have a right to stay in another EU country, you will have to go to that country. If you do not go immediately, or if you represent a threat to public policy or security, you may have to leave the entire territory of the EU.

 

3- What happens when I get a return decision? (1)

You will be given a time period in which time you are able to choose a voluntary return. EU has issued the time to be at least one week and at most four weeks. There are some exceptions to when you are not given that option. It happens if:

  • You represent a risk to public order, public security or national security;
  • Your application to stay in the country was based on false information;
  • Your application to stay in the country was dismissed as being unfounded;
  • There is a risk you will escape.

The court desides if you fall into these categories. In such circumstances, the period of time for voluntary departure might be less than seven days or you may have to leave immediately.

 

4- How does the voluntary return work?

All flights are organised and monitered by the Organisation on Migration (IOM). Finland “orders” the arrangement of the flights, and IOM has representatives that monitor the rights of the returnee as well as the actual protocol and procedure. You will not be left unattended at any point from departure to destination, when the IOM representative “marks” you as received by the target country.

 

5- How much money can I get from a voluntary return? (2)

If you are returning to Irag, Afganistan or Somalia you will receive a maximum of 1000€ if you are an adult and 600€ if child. However Migri can decide on less or change the cash assistance to in-kind support (hyödyketuki). If that is the case you will receive up to 200€ as cash and up to 1300€ in other form of support (ususally help for integrating). If you are a child the amounts are 100€ and and 650€ respectively. To be able to receive the aids you need to have no income or assets and have to have been away from your home country for a long enough period of time.

Please note that if you receive cash assistance you will receive (most of) it in the target country (home). Also from 1.4.2017 there has been a new project aiming to help integration in the target country and you will most probably be part of it if you return. You will also have to sign an agreement stating that you will not apply for asylum in the Schengen area for a certain amount of time. Read more about the integration program here (3) .

 

6- How does forced deportation work?

It works exactly the same way as a voluntary retun. The exception is that instead of a single IOM observer you will have 3 security personnel (usually Frontex, but local police or even flight carrier specially trained crew members is possible) and a doctor to go along with them for the reasons listed above (risk of escape/hurting one self etc.).

You will NOT get any cash assistance during a forced deportation.

 

7- Will I get an entry ban (maahantulokielto) if I use a voluntary return?

It is possible. Every situation is viewed individually and the risk assessment of the applicant determines what the decision will be.

Will I get an entry ban if I get a forced deportation?

Most probably. There has never been a known case where a deportee has not been given an entry ban at the same time (since he has had an option to leave voluntarily).

 

8- How long will my entry ban be?

According to the (EU commision’s) asylum directive each country can decide on the length of the ban or whether to have one at all. All depends on the individual case and evaluation. The directive states also that the maximum (there are exceptions) period of an entry ban is 5 years. So in theory 0-5 years. In practice the shortest entry bans are 3 months long and the “standard” range between 2-4 years. For example the Swedish Immigration Department (Immigrationsverket) has a “recommendation” of 4 years for irregulars.

9- Can I apply for asylum in another EU country if I have a ban?

In theory yes. The country you are applying to has to contact the country that gave you the ban and consult with them before accepting your application. In practice this rarely happens so basically it is safe to assume that an entry ban will cover the whole Schengen area during the time it is active.

10- Can I be detained during any period of my asylum procedure? (1)

About detention:

In general, you will not be held in detention while awaiting departure. However, if, for example, there is a risk that you will flee, avoid or obstruct your return, you may be placed in temporary detention while preparations are made for your journey. Where possible, the authorities must use means other than temporary detention. A person who has received a return decision can always ask to have this reviewed by a court.

The conditions of detention must be in full respect of fundamental rights and meet national and international standards. You must be placed in a specialized detention center. Where this is not possible, you might be in a prison but separated from ordinary prisoners. You must be able to contact your legal representatives, family members and consular authorities. Your detention shall be regularly reviewed by the relevant national authorities. In cases of prolonged detention, any such review will be supervised by the courts.

The detention period will be as short as possible and is generally limited to a maximum period of six months. In exceptional cases, detention will be allowed for a maximum of 18 months.

 

11- What are my rights while awaiting departure? (1)

You benefit from a number of legal guarantees during the period before your return. These can include the right to:

  • Contest a return decision
  • Seek legal advice
  • Language assistance, such as interpretation or translation, where necessary
  • Have the unity of your family respected. Efforts will be made to house you together with your family members and to return you together
  • Emergency health care and essential treatment of illnesses

In the case of children, access to education for the duration of their stay. In addition, the special needs of vulnerable people should be taken into account. (This is the part that the government might want to look into again). In some cases you may be able to get legal advice and/or representation free of charge.

Extra questions:

 

E1- Should I just “run away” from the Migri and police?

This is strongly not advised. Being in Finland without a documentation makes you vulnerable to basically everything. One of the biggest issues is you cannot file a police report where you might be asked to witness or give a statement. So you will be helpless in cases such as sexual abuse, abuse, slave-like work, forced people/drug smuggling or selling and other activities. You cannot get an official residence nor an official work permit. It is very hard to live in a technologically advanced country just on cash.

A lot of systems need bank codes autentification which you will be impossible to receive. There is a chance of receiving social aid according to the present law but if several people start using it and media gets hold of the situation it will most probably be changed. The risks are just not worth it at the present moment.

However you should appeal to the European court of Human rights if you feel your procedure was not according to the law. If you know you don’t fit the criteria for asylum your best move is to obey the law.

 

E2- Should I take a voluntary return?

If you feel you will be deported forcefully anyway then absolutely yes. The EU is trying to minimize the number of forced deportation and is granting aid to the countries to imply a voluntary return option. There is an obligation to offer you a voluntary return option. You will receive help both in Finland and in the destination country in the form of assistance, monetary aid and counseling. Read more about that here (3).

 

E3- I will die if I am returned, what do I do?

That is one of the hardest dilemmas out there. Because there were a lot of people misusing the asylum system in Europe during 2015-2016 a lot of people have had a negative conception of asylum seekers in general and a lot of genuine refugees are targeted and discriminated. The law changed on 17.5.2016 and applications were not viewed on the same level as before.

In general all of the advice above is based on the law and legal procedure. According to it you can only hope the law changes and the people in charge change their approach. However a humane approach should always outweigh all laws and norms if you are fighting for a right to be alive.

Therefore you should as a human and humane being do everything necessary to stay alive and have the right to live. So contradicting to what is stated above if you are fighting for your right to be alive you should have that right since you have nothing to lose. Don’t however resort to committing a crime in order to stay in the country. It has worked before but it was amended in the law since last year.

*Personally I think that the government should write an exception in the foreign law (ulkomaalaislaki) to where it can review the applicants original applications that were issued from 1.9.2015-16.5.2016 according to their old law with humanitarian protection. That way it will get rid of the dilemma we are facing now (it will make similar decisions to all from the 2015 crisis). It will solve the issues that we are having at the moment and wont affect future decisions. That is because a refuge flow of the scale of 2015 is impossible with the current augmented EU migration policy. If someone from the government is reading this they can contact me about how it could be implemented.

Sibil

 

1) More info on irregular immigration

2) Cash assistance amounts (Migri)

3) From 1.4.2017 there is a new program that helps people with integrating to their home country (in a new area for example). It is part of the voluntary return program so the procedure is monitored by IOM. The funding happens by (EU commission’s) Asylum, Migration and Integration Fund (AMIF) , which has a funding program until 2020.

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