Standard of proof when determining the age of asylum seekers
Supreme Court judgment 12 December 2019, HR-2019-2344-A, (case no. 19-093113SIV-HRET), civil case, appeal against judgment.
A, B, C, D, D, E (Counsel Georg Abusdal Engebretsen), Norwegian Organisation for asylum seekers (NOAS) (Counsel Jan Fougner) (third-party intervener) v. The State represented by the Immigration Appeals Board (The Office of the Attorney General represented by Ingrid Skog Hauge)
Justices: Webster, Normann, Ringnes, Østensen Berglund, Steinsvik
Five Afghan boys had applied for residence in Norway, see section 28 of the Immigration Act, and stated that they were 15-16 years old. After further assessments, which also included medical age examination, see section 88 of the Immigration Act, the immigration authorities considered all of them to be older than 18. The applications were rejected. The Supreme Court found, like the Court of Appeal, that the general requirement of preponderance of the evidence – and not a lower standard of proof – applied in the assessment of whether the applicants were younger or older than 18. Neither the Immigration Act nor the preparatory works suggested any other standard of proof. The application of a lower standard of proof could also not be derived from Article 104 of the Constitution, Article 3 of the Convention of the Rights of the Child, of the General Comments of the UN Committee on the Rights of the Child. There was no reason to invoke a non-statutory exception from the general standard of proof, not even when the assessment was made in a child-sensitive perspective. The personal consequences for the applicants considered against the risk of misuse was not sufficient to depart from the general preponderance of the evidence principle. It was also pointed out that it concerned a thoroughly regulated legal area that had been subject to difficult political considerations, and where provisions have been laid down relatively recently, implying increased protection of minor asylum seekers. Importance was also attributed to the safety margins generally added to all assessments that are made, and that when the decision is made, an individual and nuanced assessment must be made. It was also essential that all applicants are treated as children until the application for residence has been resolved. The appeal against the Court of Appeal's judgment was dismissed.