NALS 2017 Reykjavik, Iceland Workshop 12 (Stream 3): Minors and Children Work in progress, do not cite. Professor Elina Pirjatanniemi (Åbo Akademi University, Finland) Renegotiating the Best Interest of the Child - the Case of Family Reunification There is a comprehensive framework in Public International Law on the rights of migrants. The starting point in all activities must be to fully safeguard and respect their fundamental and human rights. 1 1. Background After the Finnish parliamentary elections in 19 th of April 2015, the Government was formed of three middle-sized conservative parties: the Centre Party, the Finns Party and the National Coalition Party. Social democrats, the Greens, Christian Democrats, the Swedish People s Party and the Left Alliance were left in the opposition. On 29 May 2015, the President of the Republic of Finland Sauli Niinistö appointed Finland's 74th Government, that of Prime Minister Juha Sipilä. 2 The new Government faced a difficult economic situation. Problems with fiscal sustainability, the ever-darkening future of economy and slowly advancing structural reforms have shadowed its journey from the very beginning. Nevertheless, migration policy is the question that has triggered particularly fierce criticism against PM Sipilä s Government. Migration was one of the most important topics already during the elections 2011, when the Finns Party achieved their first groundbreaking election victory. In this context, it is important to notice that in the 2011 elections candidates with an anti-migration agenda were the winners amongst 1 Migration policy measures approved by the Government on 11 September 2015, p. 1 (translation: EP). 2 An Open Letter of Appointment from the President of the Republic, Statutes of Finland 699/2015. 1
the Finns. The 2015 elections were, for their part, rather normal parliamentary elections. Compared to earlier elections, migration as a topic had moved to the background. The Finns, however, continued to push forward their critical agenda and the skillful politicization of the migration question was visible in their election results. Paradoxically, one might say, the entry of the Finns Party to the heart of the power coincided with the largest flow of asylum seekers to Europe, and to Finland, since the World War II. As well known, Europe is not the only region affected by the global refugee crisis. As repeated many times, Europe is actually not facing a refugee or migration crisis at all; Europe has a political crisis. This political crisis has led to a race to the bottom, where Member States try to renegotiate their obligations towards persons seeking international protection, and this development has obviously significant direct and indirect fundamental and human rights consequences. 2. National context During the most difficult year, that is 2015, Finland got 32 476 asylum applications. The rise from the previous year was in a Finnish context significant, as the equivalent figure in 2014 was 3651. It is noteworthy that the figure or 2016 was already relatively modest: 5651. The amount of asylum seekers obviously triggers debates on migration, but it is not the only reason why these debates flourish. The migration and/or asylum question is very much present in all Member States, regardless the amount of asylum seekers. Most importantly, it is a key question for populist movements. In the Finnish setting, it is one of the most important issues for the True Finns. Migration policy is their mirror. If they fail to leave a strong footprint into that policy, they are doomed to lose voters. As a party in power, they tend to lose voters for other reasons as well. For example, the recent and manifold cuts in welfare services have left an impact on their popularity. Other parties know this, and they are obliged to follow the moves taken by the True Finns very carefully. In order to keep the door open for disappointed True Finns, those who might gain from the failures of the True Finns must deal with asylum-related questions cautiously. 2
The current political situation reveals also another type of mechanism, which is the focus of my intervention today. Namely, when a populist party enters into the Government, it must reconsider its way of communicating its agenda. In order to qualify as one of the ruling parties the populist party has to modify its rhetoric. At the same time, they have the position to require, or assume, that other ruling parties change their rhetoric as well. A government must naturally speak with one voice. In this game, no areas of politics stay unaffected. In many ways, Finland has since the late 1980 s and early 1990 s, developed to a country where fundamental and human rights are taken seriously also in the midst of the political battles. There are, however, reasons for worries. More and more often arguments based on fundamental and human rights are sidestepped. The current Finnish discussions regarding migrants, irregular migrants, asylum seekers, deportations, non-refoulement, name it, show an alarming tendency to address fundamental and human rights as a last resort instead of seeing them as questions of primary concern. At the same time, political actors try to pretend that they do respect fundamental and human rights. 3. Research task The aim of my presentation is to show how the trick is done. How are human rights unfriendly solutions pushed forward in a society that is strongly committed to the promotion of human rights? This intervention is based on a work on progress, and my conclusions are preliminary. Finland has recently changed its legislation regarding the right to family reunification. According to the new legislation, this right primarily depends on the applicant s protection status. As a starting point, only persons who are given refugee status will have the possibility of family reunification. Persons who get subsidiary protection status will only have the right to be reunited with their family in exceptional cases. In addition, strict maintenance requirements will apply. There will also be stricter time limits for family reunification. The tougher criteria also applies for children. Regardless of this, the Finnish government emphasizes that the principle on the best interests of the child continues to apply. I am trying to 3
understand this paradox and to reveal the underlying logic in the Finnish legislative amendments. In order to do that I will scrutinize how the legislative changes, having a significant impact on children, were motivated. The basic question I ask is as follows: How was this act of renegotiation made intelligible? My focus has been in the new maintenance requirements. According to the directions given by the Migration Office, the funds necessary to fulfill the income requirement is 1.000 euro/month per adult, and for a family with two adults and two children the sum would be 2.600 euro. This amount must be freely available, for example through the applicant s own bank account. The research question is analysed with the help of discourse analysis. I will use as my analytical framework Perelman s new rhetoric. 3 According to Perelman, argumentation aims at securing the adherence of the audience. This persuasion is made by using particular techniques. In my analysis, I will try to disclose the argumentative techniques used by the Finnish legislators by implementing the Perelmanian categories of techniques. I hope that this endeavour will provide knowledge on 1) how the legislators convinced their audience and 2) how human rights were downplayed in the discourses. The material consists of the preparatory works of the relevant Finnish legislation, comments made to the governmental proposals and the minutes of the discussions on the proposals held in the parliament. I have read the material once, and I have some preliminary ideas to share. A lot of digesting is still needed before I can present solid conclusions, but already the first reading shows interesting features in the debate. In the later stage of this study, I will also include Swedish discussions into my analysis. My assumption is that the comparison will be of interest in many ways. The de facto refugee situation has been very different in Sweden. Compared to Finland, Sweden has hosted a significant amount of asylum seekers. It is thus interesting to see whether the arguments used against family reunification the same, or whether there are differences in responses and what conclusions can be drawn from the results. 3 Perelman & Olbrecht-Tyteca, The New Rhetoric, 1971. 4
4. A preliminary analysis of the debates in the Parliament 4.1. The opening statement by the responsible Minister The debate in the Parliament starts with a presentation made by the responsible Minister. Minister of Interior Orpo presents the Governmental proposal 4 by referring to several important reasons to adopt the legislation. First argument is, interestingly, that the proposal is based on the Government Programme. For those of the readers that are not well accustomed with Finnish politics, a short explanation might be useful. According to a long tradition in Finland, important questions, legislative and other, must be included in the strategic programme of the Government. The detailed content of this political document is negotiated when the Government is formed, and in the Finnish politics, it is a document of significant weight. If an issue is not mentioned there, it does not exist. On the contrary, if an issue is there, parties can always refer to it without having a full burden to argue for the importance of it. In other words, by anchoring the changes in the Government Programme, the Minister is reminding the audience of that here we are implementing the programme, which we have the full right to do as ruling parties. After stating the politically obvious, the Minister stresses that the legislation at hand became particularly topical because of the difficult migration situation that both Finland and Europe have recently faced. Note that the Minister uses the term migration situation. During the debate, all those who speak in favor of the changes tend to use the neutral term migration. It is difficult to say whether this is deliberate, but it certainly strengthens the idea that those in the move are primarily migrants, not people in need of international protection. Those who are against the proposal use more often words like refugee, asylum seeker and person in need of international protection. After the Minister have referred to the Government Programme and to the alarming migration situation, he stresses that the proposed legislative changes are in accordance with the EU Family 4 Governmental proposal 43/2016, presented to the Parliament 12.4.2016. 5
Reunification Directive. He emphasizes that when the Directive was implemented, Finland chose not to include in our national legislation all criteria listed in the Directive. Now in the current situation we have, according to the Minister, an urgent need to make corrections according to the examples given to us internationally and by the countries of reference. Here the Minister makes three important arguments. First, he says that everything is in accordance with the Directive. Second, he indicates that we have been too lenient before. Third, he emphasizes that our countries of reference, including other Nordic countries, have already done all this. Finally, he concludes by stating that he sees the proposal necessary in the current situation. After the opening statement, Members of the Parliament are provided a possibility to discuss the proposal. In the following, I will focus on the first debate that followed immediately after the Minister s presentation. 4.2. We must do what others do The debaters arguing for the new legislation make often references to what other countries in Europe, and in the Nordic context, do. The core of the argument is as follows: all countries of reference tighten their criteria for family reunification. Consequently, Finland cannot step aside from this development. This argument is prevalent amongst those arguing in favor of the proposal. There are even those who are critical to the income requirements, but who do accept the basic idea behind the proposal. This dividedness is especially visible in some of the comments made by social democrats. It is noteworthy that in Europe there is a trend whereby all countries tighten their practices concerning family reunification. One can ask the question whether Finland can stay outside. And the answer is: no. Even Finland must scrutinize and tighten family reunification practices. 5 (15.32 Antti Lindtman, sd) 5 EP interpretations. 6
The statement according to which Finland must follow our countries of reference is an example of an argument based on reciprocity. Debaters present two phenomena as equivalent, which gives them a strong reason to treat them in a similar manner. In the discussion at hand it is easy to see the pattern; because Sweden/other EU Member States does/do X, it is obvious than Finland should also do X. This type of argument we need to do what others do is often developed into a question of causal links. By referring to causal relations, debaters give an impression that the proposal is anchored in real life phenomena. The logic is as follows: if we do not change our legislation, irregular migrants choose Finland as their destination. A complex phenomenon irregular migration is thus simplified to a simple game, where one piece of legislation plays a significant role. 4.3. We must get rid of pull factors Family-related reasons are statistically the most significant sources for migration in Finland. Considering the rise in asylum applications in 2015, it was expected that the Government felt obliged to react. In the debate, representatives of the Government perceived the right to family reunification primarily as a pull factor. Do you want that Finland is a particularly attractive country, so that thousands, tens of thousands, of asylum seekers travel via Europe, through other countries in order to come to specifically Finland, because on the contrary with those other countries, it is much easier to get your family reunified in Finland? Do you want this? If you do not, how can you shut your eyes to this? (16.09 Ben Zyskowicz, kok) As far as children are concerned, the Government presented the famous anchor child argument. Even if the situation of children was seen as worrisome, this did not change the bigger picture. If the income requirement were not to be applied to children, this would, according to the Government, encourage migrants to send their children to Finland in order to ensure family reunification here at a later stage. The counter-argument, according to which it is totally utopian 7
to require that a child in a family of four (two adults, two children) would have 2.600 euros available on a monthly basis, was shifted away by referring to possibilities in individual cases to adjust the requirements. Nota bene: the amount of children that have got their parents to Finland on the basis of family reunification has been very low. In 2013, there was according to my knowledge, only one such a case, 10 cases in 2014 cases and 5 cases in 2015. In the light of these figures, the discussion on anchor kids is very hypothetical. 4.4. In accordance with the Directive The core EU document in this respect is the Directive 2003/86/EC on the right to family reunification. 6 The preamble of the Directive clearly states that all measures adopted on the basis of the Directive should be adopted in conformity with the obligation to respect family life enshrined in several instruments of international human rights law. Furthermore, the preamble emphasizes that the Directive respects the fundamental rights and observes the principles recognised in particular Article 8 of the European Convention for the Protection of Human Rights and Freedoms [ECHR] and in the Charter of Fundamental Rights of the European Union. The aim of the Directive is to establish mobility rights for the family members of third country nationals. These are, however, restricted in comparison with the equivalent rights granted to the family members of EU citizens. In addition, there are optional clauses that allow Member States to impose further restrictions to their family reunification regulations. Among others, Member States may require stable and regular resources, which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. According to the Directive Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members. In addition, the 6 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 03/10/2003, pp.12-18. 8
European Court of Human Rights has emphasized that possible income requirements need to be reasonable. They may not constitute a de facto barrier for family reunification. Interestingly, those who refer to the Directive most eagerly represent the EU-critical the Finns Party. Their goal is that Finland would utilize all the options available, which means that income requirements is only the first step on the road. Sometimes their reliance on the EU is to some extent comical: And then this humanitarian question, which has circled around here all the time. The humanitarian thematic is take care of on the EU level and it is now defined collectively, and we follow the common EU level. (16.12 Sampo Terho, ps) 4.5. Children s cases will be assessed individually As said already, the new strict requirements regarding income would also apply to children. Many of the representatives of the opposition question the meaningfulness of this, partly because the requirement is seen as utopian or as Dadaistic, as the representative for Left Alliance, Silvia Modig, puts it and partly because it is not in accordance with the principle of the best interest of the child. Some parliamentarians, from the opposition, also refer to the Convention on the Rights of the Child. In the debate, the view of the Government is that the risk of anchor children is so significant that as a rule, income criteria must be applied to children. In individual cases, if the best interest of the child so requires or there is an exceptionally weighty reason, it is possible to deviate from this rule. 9
5. Preliminary conclusions In the rhetorical game played in the Parliament, there is a battle regarding how to frame the events that have led to more asylum seekers. Those who want to make the criteria of family reunification tighter, choose neutral terminology, they talk about migration, movements etc. The opponents refer to asylum, international protection. Human or fundamental rights, or concerns of justice, are referred to mainly in order to strengthen one s own viewpoint. Sometimes this leads to almost perverted outcomes, as in the case when Outi Mäkelä from the National Coalition Party compares Nordic and Finnish rules regarding family reunification, and concludes that by tightening the Finnish legislation we can assure that inequalities in this respect now will be removed. The same is true when the EU-critical Finns fiercely defend the EU Directive, and rely on it as a guarantee of humanitarian considerations. Based on the first reading, for the Government, fundamental and human rights seem to be aspects taken into account as a last resort. They are not something to be promoted, they are minimum standards. Human rights argumentation is superficial and fragmentary; one takes a case here and another case there, and uses the body of law as one pleases. The best interest of the child is an empty phrase that is often repeated, but that has no real relevance. If issues that are more important are at stake, the best interest of the child seems to be relatively easy to swift away. Based on this debate, the best interest of the child is not perceived as a principle that directs the actions on a general level, but a specific mechanism whereby individual injustices can be avoided. 10