11 July 2014

An amendment to the guidelines issued by the Norwegian Director of Public Prosecutions orders police to cease their practice of criminalising asylum seekers who do not ‘immediately’ admit they have used false identity papers. The revised guidelines protect asylum seekers from prosecution if ‘without undue delay’ they admit to using false documents to enter the territory.

The amendment is the government’s response to a ruling of the Norwegian Supreme Court that the previous policy was incompatible with the 1951 Refugee Convention, Article 31 of which prohibits Contracting States from penalising refugees for entry or presence without authorisation if they ‘present themselves without delay to the authorities and show good cause for their illegal entry or presence’.

On 24 June 2014, the Supreme Court ruled that the former guidelines were interpreting Article 31 too restrictively by translating ‘without delay’ into ‘straks’, which is Norwegian for ‘immediately’. Such a narrow interpretation meant that even those who claimed asylum on arrival at the airport were not exempted from prosecution. The new guidelines now use the more accurate translation ‘uten ugrunnet opphold’ (without undue delay), as recommended by the Supreme Court. If asylum is sought at the airport on the day of arrival, then the guidelines say this ‘obviously’ prohibits prosecution for illegal entry, although this does not mark the maximum allowed time period.

The addition of the word ‘ugrunnet’ (undue) requires that, in each individual case of delay, the police must consider circumstances of the person, including what awareness of the system he/she can be expected to have, in order to ascertain whether the extent of delay was justified.

The Supreme Court relied on UNHCR’s 1999 Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers, which states: ‘given the special situation of asylum-seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of insecurity, and the fact that these and other circumstances may vary enormously from one asylum-seeker to another, there is no time limit which can be mechanically applied or associated with the expression “without delay”’.

Following the Supreme Court’s judgment, the new guidelines also exempt from prosecution refugees who have made necessary stops in other safe countries before reaching Norway. Under Article 31, to be exempted from penalty, a refugee must be ‘coming directly from a territory where their life or freedom was threatened’. Previously, the Norwegian policy interpreted this as exempting from prosecution only those asylum seekers who had not passed through any other ‘safe country’ during transit.

The UNHCR Guidelines explain that the term ‘coming directly’ ‘also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there. No strict time limit can be applied to the concept “coming directly” and each case must be judged on its merits’.

The Supreme Court’s judgment, and the amended guidelines for police, uphold the recommendations of ECRE member the Norwegian Organisation for Asylum Seekers (NOAS), who intervened in the legal proceedings and advocated for reforming Norway’s application of Article 31 in their February 2014 report entitled ‘Detention of Asylum Seekers: Analysis of Norway’s international obligations, domestic law and practice’.

NOAS and the UN Special Rapporteur on Arbitrary Detention Mads Andenæs have argued that those wrongfully imprisoned under the previous guidelines must be released if still in detention and that they must be given compensation.

In their judgment in Case C-481/13 Qurbani, which is due on 17 July 2014, the Court of Justice of the European Union is expected to provide further interpretation of the Refugee Convention with regard to penalising refugees for breaching immigration rules.

This article originally appeared in the ECRE Weekly Bulletin of 11 July 2014.
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