Plenary hearing on asylum and residence on humanitarian grounds for Afghan family
Supreme Court judgment of 18 December 2015, HR-2015-2524-P (case no. 2015/203), civil case, appeal against judgment
The state repr. by Immigration Appeals Board (Attorney General repr. by Fredrik Sejersted) (Assisting counsel Marius Emberland), (Counsel Marius Stub) v. A, B, C, D (Counsel Christian Hauge), Norwegian Organisation for Asylum Seekers (intervener) (Counsel Jan Fougner), Save the Children (intervener) (Counsel Mads Andenæs)
Justices: Utgård, Bergsjø, Ringnes, Øie, Matheson, Bull, Matningsdal, Stabel, Tønder, Webster, Normann, Noer, Kallerud, Arntzen, Skoghøy, Indreberg, Bårdsen, Falch, Schei
An Afghani family, with children aged six and two, had their applications for asylum rejected by the Immigration Appeals Board (UNE) in 2013. The family was entitled to protection pursuant to the Immigration Act section 28 subsection 1 b), but the rejection was justified by the family having the option of seeking protection elsewhere in Afghanistan, see the Immigration Act section 28 subsection 5.
The Supreme Court, which heard the case in a plenary session, found in favour of the state. The court stated that UNE, in its assessment into whether internal displacement would be unreasonable, did not misinterpret the Immigration Act section 28 subsection 3, see Article 3, no. 1, of the Convention on the Rights of the Child, by only considering the circumstances within the internal displacement area and not weighing these against equivalent circumstances in Norway. Section 7-1 of the Immigration Regulations establishes that internal displacement is only considered unreasonable if the condition of strong humanitarian considerations, as provided by section 38, has been met. This provision was found to have sufficient statutory authority in section 28 subsection 8. A majority opinion of 12 justices concluded that UNE had not violated any rules of procedure by not giving the eldest child the opportunity to give her statement to the board. The grounds for the decision were also deemed sufficient by the majority opinion, pursuant to both section 28 (13 justices) and section 38 (12 justices) of the Immigration Act.
The Supreme Court emphasised that UNE had applied a correct interpretation of the concern for the best interests of the child. Dissenting votes 13-6 on the question of invalidity pursuant to section 28, and 12-7 in the question of invalidity pursuant to section 38. A majority opinion of 10 justices stated that the question of whether internal displacement is unreasonable pursuant to section 28 subsection 5 can be tried by the courts.