The Ombudsman’s monitoring duty

One of the duties of the Non-Discrimination Ombudsman as an external and independent authority is to monitor the removal from the country of foreigners being deported or refused entry. The monitoring obligation is based on the EU Directive on common standards and procedures in Member States for returning illegally staying third-country nationals, according to which the Member States must provide for an effective return monitoring system. In Finland, the duty has been assigned to the Non-Discrimination Ombudsman in the Aliens Act.

In practice, the scope of monitoring work may vary from covering all stages of removal from the country to focusing on only one part of the process. The legislation grants the Non-Discrimination Ombudsman the authority to monitor the enforcement of all removals from the country. The central focus of monitoring is on returns, during which the police escort the person being returned. The monitoring is focused on the return of persons in a vulnerable position as well as return to challenging destination countries (such as Afghanistan and Iraq), in addition to returns with a heightened risk of use of force.

As the party monitoring removals from the country, the Non-Discrimination Ombudsman has the right to receive all information required for the monitoring.  The monitor has access to all premises and situations during a return. The Non-Discrimination Ombudsman does not have the authority to interrupt a return, interfere with the enforcement of return, the use of forcible measures or the time of return. The Ombudsman can draw the attention of the authority enforcing removal from the country, such as the police, to matters the Ombudsman considers important and issue recommendations to safeguard the rights of persons removed from the country.

When communicating about the Ombudsman’s work related to the enforcement of removal from the country, the Non-Discrimination Ombudsman must take the protection of privacy and secrecy obligations into account with regard to the individuals being returned. The monitors and the Non-Discrimination Ombudsman do not provide information on planned returns or, as a rule, about the realisation of individual operations even after the fact.

Some of the returns are carried out with European joint return flights, in which several countries participate. The joint returns are coordinated by the European Border and Coast Guard Agency (Frontex).

In December 2019, the European Union issued the Regulation on the European Border and Coast Guard, which requires Member States to nominate forced-return monitors to Frontex's pool of forced-return monitors. Finland updated its legislation with the adoption of the Regulation, simultaneously expanding the scope of the Non-Discrimination Ombudsman's monitoring of forced returns. The Office of the Non-Discrimination Ombudsman began carrying out the monitoring duties related to these obligations as part of its monitoring of removals from the country. While monitoring forced returns coordinated by Frontex, the monitors supervise the realisation of the returnees' fundamental rights and report on their observations to Frontex's Fundamental Rights Officer.

Basic and human rights are at the core of monitoring

The goal of monitoring removal from the country is to develop the return process so that the activity is humane and respects human rights. In fact, the core of the monitoring by the Non-Discrimination Ombudsman involves assessing the enforcement of returns from the point of view of basic and human rights. According to the Constitution of Finland, the public authorities must guarantee the observance of basic and human rights. This also applies to removal from the country.  International human rights bodies have stated that the enforcement of removal from the country is a situation during which the risk of violations of human rights is especially high.

The monitoring strengthens the legal protection of both the persons being returned and their escorts. The aim of monitoring is also to increase the transparency of the activities and dispel prejudices related to the activities of the authorities. Based on the experiences gained from individual monitoring trips, the Non-Discrimination Ombudsman can issue the authorities suggestions, recommendations, opinions and advice related to removal from the country.

Funding the monitoring of removal from the country

The Non-Discrimination Ombudsman has received support from the Asylum, Migration and Integration Fund (AMIF) of the EU Home Affairs Funds (EUSA) for the project ‘Haavoittuvassa asemassa olevien palautukset ja oikeuksien toteutuminen‘ on studying the returns of those in a vulnerable position and the realisation of their rights, implemented from 1 January 2022 to 31 December 2022. The aim is to improve the identification of those in a vulnerable position and the realisation of their rights in the monitoring of the enforcement of removals from the country and the practices of authorities.

The share of EU funding granted to the Non-Discrimination Ombudsman is EUR 99.392,49.

Legislation

• Aliens Act
• Act on the Non-Discrimination Ombudsman (in Finnish)
• EU Directive on common standards and procedures in Member States for returning illegally staying third-country nationals
• Regulation of the European Parliament and of the Council (EU) 2019/1896 on the European Border and Coast Guard