Anerkjennelse av flyktninger i Norge
Authors: Grahl-Madsen Atle 
Published: July 2010

AbstractThe procedures for recognition of refugees differ considerably from country to country. In Norway residence is on the whole more important than nationality. As in Denmark, the private international law is based on the principle of domicile. In social welfare legislation and with respect to education, formal status - nationality or recognition as a refugee - is of little if any importance. In fact, it is only within the ambit of aliens police law that the question of refugee status is of some consequence. The Norwegian Aliens Act of 27 July 1956 is strongly influenced by the Swedish Aliens Act of 1954. The Act is supplemented by the Aliens Order. Important provisions are found in the Administrative Procedures Act of 1967. The aliens authorities are the police, the State Aliens Office (which is assisted by a State Aliens Council), the Royal Ministry of Justice and Police, and finally the King in Council. There would be no legal hindrance for the Ministry (or the Aliens Office, given the authority) to issue eligibility certificates to refugees. But it is doubtful what legal effect such certificates would have. Today, such certificates are not issued, and the question of refugee status is therefore only determined prejudicially in connexion with applications for asylum or Convention travel documents. According to § 11 of the Act, an alien shall not be refused entry if he can substantiate his claim to be a political refugee, until his case has been presented to the Aliens Office. Against a refusal of entry, he may file an appeal to the said Office, which may instruct that the entry refusal order shall not be effectuated until the appeal has been decided. In any case it is obvious that in connexion with the question of entry refusal, a full-fledged recognition of refugee status is not possible. According to § 2 (1) of the Aliens Act, a political refugee is entitled to asylum, provided that there are no valid reasons to deny it. Applications for asylum are decided by the Ministry, which prejudicially shall have to determine whether the applicant is a political refugee as defined in § 2 (2) of the Act. Against the Ministry's negative decision, it is possible to appeal to the King in Council. Such appeals are frequently successful. - The alternatives to asylum are either leaving the country or being issued with a residence permit on humanitarian grounds. The latter instance corresponds to the status of so-called "B-refugees" in Sweden. As the quality of refugee is merely prejudicially determined, the grant of asylum is not binding on other authorities which may have to make an eligibility determination, but naturally a grant of asylum will carry considerable weight in such situations. Travel documents are issued upon a decision by the Aliens Office. In this case to, the determination of eligibility is just a prejudicial one. A refused request does not necessarily mean that the person in question is not considered a refugee. Just as the grant of asylum, the issue of a travel document creates a presumption in favour of its holder, even if the underlying eligibility determination is not formally binding on other authorities. A special determination of fear of persecution may take place if a person is threatened with deportation or extradition. All administrative decisions are subject to administrative appeal to higher authority. But a final decision may be challanged in a court of law. The question whether a person is a refugee is a question of law. A plaintiff may request a declaratory judgment to the effect that he is a refugee according to the Aliens Act and/or the Refugee Convention and Protocol. But it seems more practical to ask a court to declare the refusal of asylum or a travel document illegal, and to order the authorities to grant the applicant's request. There have not been many court cases concerning refugee status in Norway. But the fact that such cases may be entertained by the courts, adds an interesting dimension to the aliens law of Norway. The author suggests that the Aliens Act ought to be amended so that whenever an alien claims to be a refugee, his case should be considered by the Aliens Office before he is refused entry. It is also suggested that it should be possible to request an eligibility determination pure and simple, and that this question, and also the questions of grant of asylum and grant of a travel document, as well as the question of non-refoulement, ought to be decided by the State Aliens Office in the first instance. In the event of a negative decision, the administrative appeal should be filed in a court of summary jurisdiction (forhørsrett, cf. the French juge d'instruction), which would give an oral hearing to the applicant, his counsel, and a representative of the State, and also hear witnesses and experts, if any. A representative of a refugee aid society might appear as an amicus curiae. The judge would in due course forward the court records and other ducuments to the State Aliens Office, which might reverse its decision or forward the documents to the Ministry for decision. Should the Ministry's decision, too, be negative, the applicant would have the option of suing the State in the City Court of Oslo. The author makes a strong plea for the creation of a Eupean Refugee or Eligibility Appeals Commission within the framework of the Council of Europe. An appeal to this Commission might become an alternative to court proceedings. It might also be possible for national courts to request the Commission's opinion on points of interpretation, somewhat along the lines of Article 177 of the Rome Treaty establishing the European Economic Community. One would then get some uniformity in the application of the Refugee Convention and Protocol in the participating countries, notability with respect to eligibility and non-refoulement. If also the so-called refugees in orbit could appeal to the Commission, it might prove possible to find a solution even to this very pressing humanitarian problem. Perhaps the creation of a European Refugee Commission should be considered the next great challange in the development of refugee law.