Collectivized Discretion: Seeking Explanations for Decreased Asylum Recognition Rates in Finland After Europe's 2015 “Refugee Crisis”

Abstract

In 2015, during the so-called “refugee crisis” in Europe, Finland was among the European countries receiving exceptionally large numbers of asylum applications. As the volume of asylum applications surged, however, the percentage of positive asylum decisions in Finland declined substantially. In this article, we explore reasons for this dramatic drop in recognitions rates and examine Finnish immigration control authorities’ use of discretion in asylum credibility assessment. Our approach is unique in its application of mixed methods to examine asylum decisions in pre- and post-crisis situations. We found that asylum caseworkers’ inconsistent assessment of similar facts and lack of faith in the veracity of applicants’ claims were essential to the mass denial of young Iraqi asylum applicants in Finland. This finding is important because it illustrates how asylum officers are able to “shift the border,” or generate a shift in asylum decision-making on a grand scale, without meaningful changes in law. Asylum officers, we show, are able to bring about such a shift via what we call collectivized discretion, or large-scale use of discretion, in asylum status determinations to control migration. Prior research on discretion in asylum decision-making highlights the individual decision-maker. This article expands discretion research by offering new insights on large-scale, collective discretionary shifts in the application of asylum law. We conclude that it is crucial that asylum status determinations be anchored in the individual assessment of each applicant's case, as collectivized discretion can lead to arbitrary results in the application of asylum law, potentially forcing those in need of refugee protection to face deportation.

Multiple functions of immigration detention: Police measures in the governance of mobile populations

“…Notwithstanding a significant drop in detention orders due to mobility restrictions following the COVID-19 pandemic, detention has been a routine police measure in immigration enforcement in Finland: around 1250 foreign nationals were detained annually during the 2010s, accounting for roughly half of all effective removals in many years (Police of Finland, 2022). Immigration detention has been affiliated with the asylum system in Finland, in particular after the arrival of a record number of 32,136 asylum seekers in 2015 (around 10 times more than in previous years) and subsequent harsh changes in the recognition rates for international protection (Näre, 2020; Vanto et al, 2022). While most removal decisions have followed rejected asylum applications—in particular, for Afghan, Iraqi, and Somalian citizens—individual situations of detained foreign nationals vary considerably.…”

“…Alongside specific deterrence for deportable individuals, immigration detention is also an instrument of general deterrence for other deportable subjects in the country by manifesting coercive consequences for noncompliance (see Leerkes and Broeders, 2010). However, the actual removability has constrained the detention of certain nationalities: in particular, Iraq and Afghanistan have only readmitted voluntarily returning citizens and individuals deported due to criminal offenses (see Näre, 2020; Vanto et al, 2022). In fact, the detention of Iraqi and Afghan asylum seekers has mainly been related to transfers to other EU countries under the Dublin regulation (Police of Finland, 2022).…”

“…From the perspective of governance, removals are necessary for the legitimacy and integrity of immigration policies; a failure to deport rejected asylum seekers or irregular migrants threatens the credibility of the immigration system and state sovereignty. Despite demonstrated deficiencies in asylum policies (Vanto et al, 2022), the Finnish government has been reluctant to introduce regularization programs for undeportable rejected asylum seekers, as exceptional legalization would undermine state policies and give a false signal for law-abiding migrants (see Ministry of the Interior, 2022). While immigration detention involves a self-proving rationale, preventing undesirable conduct and presumed risks for society regardless of individual intentions, it fails to provide a sustainable solution for the shortcomings of immigration policies because of the difficulties in detaining and removing all deportable migrants.…”

Between algorithmic and analogue harms: the case of automation in Finnish Immigration Services

“…Reports of investigative journalists at the beginning of the crisis indicated that caseworkers employed as a result of the emergency appointments in 2016 were given templates of negative asylum decisions (Yle News, 2017). Indeed, a comparison between the asylum decisions before and after the so-called crisis (Vanto et al, 2022) revealed that asylum caseworkers' assessment of similar facts changed considerably. In particular, trust in the credibility of applicants' claims decreased.…”

“…Notably, there were no legal changes that could explain this interpretative shift. The considerable scope of discretion given to immigration officers allowed them to draw on legal frameworks in a flexible and instrumental manner and, under the political pressure to curb the increased number of arrivals, generated a shift in asylum decision making on a grand scale (Vanto et al, 2022).…”