On 29 January 2015, the Supreme Court pronounced a judgment in favour of the plaintiffs concerning decisions made by the Immigration Appeals Board (UNE). UNE has carried out a preliminary assessment of this judgment.
Statement published on 5 March 2015
Background to the case
The case concerns a national of Kenya who was granted a visa in 2007 using (presumably) a correct identity, and her daughter Maria, born in 2010.
Upon her arrival, the woman applied for protection using a false identity. After having received a final rejection of her application, she had a child with a Norwegian citizen, who renounced parental responsibility and has no contact with the mother or the child. She then applied for a family immigration permit with her daughter, but the Directorate of Immigration (UDI) rejected the application and made a decision to expel the woman for five years. The grounds for expulsion were illegal residence and providing incorrect information about her identity. In 2013, UNE decided not to grant the appeal against the UDI’s expulsion decision and rejection of the application for a family immigration permit.
The applicant brought the case before the courts. The district court found in favour of the State represented by the Immigration Appeals Board, and the petition for a preliminary injunction was not granted. Furthermore, the district court rejected the claim for a separate judgment establishing that a convention violation has taken place. The court of appeal rejected the plaintiffs’ appeal against the district court’s judgment and upheld the acquittal of the State. The Appeals Selection Committee of the Supreme Court allowed the plaintiffs’ appeal against the court of appeal’s judgment and ruling to be brought before the Supreme Court.
The Supreme Court judgment
UNE’s decisions were declared invalid and in violation of the European Convention on Human Rights (ECHR) Article 8.
This means that the Supreme Court has found in favour of the mother and daughter and has considered the following factors, among others: the child’s rights as a citizen, including the relationship with EU law and the prohibition against expulsion of nationals; the child’s right to receive a judgment establishing a convention violation; the child’s rights as a party; and the assessment of proportionality pursuant to the Immigration Act Section 70.
The Supreme Court has drawn the following conclusions:
- The child has a legal interest in the case and is entitled to a judgment establishing that a violation of the ECHR has taken place.
- Not making the child a party to the case was a procedural error.
- Expulsion of the mother is not considered a violation (in relation to the child) of the prohibition against expulsion of nationals (the Immigration Act Section 69). The child’s rights as a citizen are maintained.
- Union citizen rights under EU law do not have a bearing on the case.
- The Norwegian Constitution Articles 102 and 104 and ECHR Article 8, cf. the UN Convention on the Rights of the Child Article 3(1), govern the assessment of proportionality pursuant to the Immigration Act Section 70.
- The child’s right to respect for private and family life under ECHR Article 8 has been violated. The Supreme Court refers to the child’s citizenship as crucial, but also states that Norwegian citizenship is not above all else. The child has a right to develop a Norwegian identity in future.
Consequences of the Supreme Court judgment
The extent to which the judgment has consequences for others than the plaintiffs will become evident through future decisions made by our board chairs and board members, who make decisions as independent decision-makers. UNE will analyse the judgment in more detail and it will be presented to our decision-makers as a source of law.
Among other things, UNE will consider the importance of the judgment for other immigration cases where the consequences of the decision for a Norwegian child is either that the family is split or that the child must actually leave Norway with its parent(s). Furthermore, UNE will consider the importance of the judgment to the application of the new provisions in the Constitution Articles 102 and 104, the concrete assessment of the child’s best interests and the exercise of Norwegian citizen rights.