Alternative report to the un human Rights Committee regarding Norway’s sixth Periodic report under the International Covenant on Civil and Political Rights December 2010



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Asylum: UNHCR’s recommendations


102-103

Internal flight and UNHCR standards; Legal security of procedure

In section 28(4) in the Immigration Act of 2008, the internal flight alternative is now defined in terms of being a refugee right. We welcomed that the previous incorrect regulation where the internal flight alternative led to the possible granting of humanitarian protection rather than refugee status, now has been replaced. The present regulation does fall short however, of recognizing UNHCRs standard of “undue hardship”, in consideration of the internal flight alternative, as it merely gives a broad reference to the reasonability test14 without stating the content of the test. In the practice of the Directorate of Immigration and the Immigration Appeals Board, there is no trace of applying the “undue hardship” test.

Provision 16-4 in the Immigration Regulation of 2009 regarding the summoning of the Grand Board of the Immigration Appeals Board if a practice contrary to UNHCR’s recommendations concerning protection is established, is welcome in principle, but the present provision is heavily politicized as an exception is made if the new practice is based upon instructions from the Ministry. The exception in the regulation runs potentially against the obligation set forth in section 98 of the Immigration Act of 2008 that provides that Norway shall cooperate with UNHCR’s recommendations. There is no avenue to challenge a refusal to summon the Grand Board if a new practice based upon instructions from the Ministry violates Norway’s duty to cooperate with UNHCR as established by Article 35 of the 1951 Refugee Convention.

The grand board scheme that is meant to strengthen the legal security of the asylum seeker in cases where the Directorate of Immigration or the Immigration Appeal Board may establish a new practice contrary to UNHCR recommendations is seriously deficient.

Firstly, the grand board decisions are not fully in the public domain, which seriously detracts from its presupposed legal significance. At times the Immigration Appeal Board publishes “press releases” and extracts of a decision are made available to the public. Secondly, since the handing down of two grand board decisions in May 2007, which applied UNHCRs recommendations regarding internal flight, there were no grand boards until the fall of 2009. There was no avenue to influence the length of dormancy, as the initiative to set a grand board is wholly at the discretion of the authorities.

 Secondly, the Ministry’s final say as to the appointment of the members and the leadership of the Immigration Appeals Board suggests serious problems concerning the legal security of tenure of the Grand Board members. The one member which partook in the two May 2007 decisions, Terje Einarsen, who is one of only two university PhD’s in Norway who do research on refugee law, was pushed down to the reserve list in 2009. After several controversies regarding the Immigration Appeals Board’s procedure for summoning the grand board members (lack of written correspondence and reply), and after the leader of the Immigration Appeals Board publicly criticized Mr Einarsen for informing the public about details in a decision regarding Dublin II returns that the Board had refrained from publishing in full, Mr Einarsen withdrew from the Grand Board.

The Government has expressed that there is a goal to establish more political control over asylum issues and are considering removing the independence of the Immigration Appeals Board, inter alia by allowing for instruction on select or all areas of its various immigration cases. The government has not yet concluded in this matter,15 but the concerns run high as such a development would push the legal security in this field 10 years backwards, and bring Norway out of tune with most European countries which now have functioning and fully independent Migration Courts.

 Recommendations to Norway:


  • UNHCR’s recommendation of applying an “undue hardship” test in cases concerning internal flight should be implemented in Norwegian Asylum determination procedures.

  • A fully independent Migration Court should be established, or as a secondary option, the present appeal system must be strengthened by:

    • Upholding the use of practice setting cases in some form and give NGOs the right to propose new members to the Grand Board of the Immigration Appeals Board.

    • Giving NGOs and involved parties, such as asylum seekers, the right to initiate the summoning of the Grand Board in practice setting cases,

    • Making the summoning of the Grand Board in practice setting cases, immune from instructions from the Government.



ICCPR Art.

Subject

State Report para.

Keyword

7

Asylum: Concluding observations of UN human rights bodies


Not mentioned

Concluding observations not used as sources in asylum procedures

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