Expulsion of a single mother of a minor who is a Norwegian citizen

Supreme Court judgment and order of 29 January 2015, HR-2015-206-A, (case no. 2014/1583), civil case, appeal against judgment

A, B, SEIF (intervener) (Counsel Rasmus Asbjørnsen) v. The state repr. by The Immigration Appeals Board (Attorney General repr. by Håvard H. Holdø)

Justices: Bårdsen, Normann, Arntzen, Bergsjø, Skoghøy

A Kenyan woman who remained in Norway illegally after her application for asylum was rejected, had an expulsion order imposed on her by the Immigration Appeals Board (UNE). At the same time, her application for a residence permit on the basis of family reunification with her five-year-old daughter, who is a Norwegian citizen, was also rejected. In a lawsuit brought by the mother and daughter, the Supreme Court found both decisions to be null and void, and rendered a declaratory judgment, establishing that the decisions contravened Article 8 of the ECHR.

Initially, it was established that the daughter had legal interest, both in the validity suit and in the declaratory suit, cf. section 1-3 of the Dispute Act. The fact that a potential convention violation might constitute a legal controversy without prejudice for subsequent litigation in a parallel validity suit, did not reduce the legal interest in obtaining judgment for convention violations. In the validity suit, the Supreme Court concluded that a procedural error had failed to establish the daughter as a party to the immigration authority's hearing of the case, and that the actual coercive situation the expulsion of her mother would create for the daughter, could not be equated to a decision to expel Norwegian nationals.

The Supreme Court furthermore made reference to Article 102 and 104 of the Constitution, concluding that the child's interests weigh heavily in any consideration of interests pursuant to Article 102 of the Constitution. In the assessment of this specific case, it was found that there were no alternatives to her mother's care for the daughter. The fact that the daughter is a Norwegian citizen, with the rights this status entails, is a key factor. Her care situation would be difficult if her mother were to move to Kenya with the child.

The daughter's interests carried considerable weight in favour of allowing the mother to remain in Norway, and against the expulsion of her mother, who is her only care-giver. The circumstances on which the expulsion order was based, i.e. illegal residence in the realm and providing a false identity in her asylum application, could not outweigh these factors. Finally, the Supreme Court concluded that the immigration authorities' decision violated the daughter's rights pursuant to Article 8 of the ECHR.

Read the order and judgment