Other residence permits do not preclude asylum in Norway

An Eritrean woman and her child were granted a residence permit in Norway in 2022 on the basis of family immigration with a Norwegian national who was the child’s father.

In 2023, the woman applied for asylum in Norway for herself and the child. She stated that she risked imprisonment in Eritrea because she had deserted from military service. She also explained that she needed a refugee travel document because she lacked valid identification.

The Directorate of Immigration (UDI) and the Immigration Appeals Board (UNE) rejected the applications. They held that applicants who already hold a residence permit in Norway do not risk persecution in their home country because they cannot be returned there. The applicants therefore did not meet the conditions for asylum. UDI and UNE found it unnecessary to assess the applicants’ situation in Eritrea. Such an assessment would only be required if the basis for their residence permit were to lapse and removal became relevant. The rejections were in line with the Ministry of Justice’s circular GI‑15/2022 of 19 September 2022.

The District Court concluded that this interpretation of the law was correct, and that the asylum rejections were valid. The Court of Appeal reached the opposite conclusion.

The Supreme Court – like the Court of Appeal – held that the asylum rejections were invalid. In its judgment, the Supreme Court states that a person who risks persecution in his or her home country under Article 1A of the 1951 Refugee Convention is entitled to asylum in Norway under section 28 of the Immigration Act. Weight may not be attached to the fact that the applicant holds another type of residence permit in Norway. This follows from the wording of the provision, read in the light of the preparatory works and the legislative history. UNE’s decisions were therefore based on an incorrect interpretation of the law, and the appeal against the Court of Appeal’s judgment was dismissed.

Upon renewed consideration of the applications, the immigration authorities must determine whether the requirement of a risk of persecution in the home country is satisfied.

The judgment clarifies that the fact that an applicant already holds a residence permit in Norway on another basis is irrelevant in the asylum assessment.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Area of law: Immigration law

Key paragraphs: 59, 64, 65–67, 73–75

Justices: Øie, Bull, Arntzen, Sivertsen, Steen