By Ketil Larsen
What is due process and how does UNE contribute to ensuring compliance with the principles of due process in the immigration administration?
This is the first of two articles about due process in asylum cases and the Immigration Appeals Board’s (UNE) role as an appeal body.
It is the Norwegian Parliament that decides on the appeal procedure in immigration cases and on the level of legal certainty in the case processing. UNE’s responsibility is to adhere to the laws and regulations that apply and to provide information about how the current system works.
In this article, I use the term ‘applicant’ or ‘party’ about the person who seeks protection, submits an appeal to UNE after having received a rejection from UDI or brings an UNE decision before the courts.
1. What is due process?
Due process concerns the relationship between the state / the authorities and individuals or other legal entities (e.g. a company or an organisation). Due process means that decisions taken by the authorities in individual cases must respect the law. Furthermore, the case processing must be sound and subject to control by e.g. an appeal body or independent court of law. Under the rule of law, the citizens have rights that the state must respect, such as the right to access to documents in their own case and the right to state their opinion about the facts that the authorities will base their decision on. See Jusleksikon.no or Store norske leksikon for more information about the term due process (in Norwegian).
In this article, you can read about due process for asylum seekers and how UNE ensures due process protection.
2. Two levels of appeal and case processing
To be able to appeal against a rejection and to have the case reviewed by an appeal body are two important aspects of due process. UNE has been established as an appeal body to safeguard the rights of the applicants.
A person seeking protection (asylum) will first have his/her case considered by the Norwegian Directorate of Immigration (UDI). In recent years, the UDI has granted residence permits to the vast majority of asylum seekers who have had their cases considered on their merits in Norway. In 2019, the UDI granted 75 per cent of all applications: see statistics from the UDI here.
If the UDI rejects an application, the decision can be appealed to UNE. Most applicants who receive a rejection appeal the decision to UNE. To further ensure due process protection, all asylum seekers are entitled to free legal assistance (free legal advice) if they wish to appeal a rejection from the UDI. This means that almost all appellants are assisted by a lawyer.
If the asylum seeker appeals the UDI’s decision, the UDI will first consider the applicant’s objections to the decision. If the UDI does not reverse its decision, the case will be transferred to UNE, which will consider it with ‘fresh eyes’ and make its final decision. In 2019, UNE reversed previous rejection decisions in whole or in part in 17 per cent of the asylum cases we considered (including replies to requests for reversal of UNE’s own decisions); see statistics from UNE here. UNE also considers the importance of possible new information and developments in the case that have taken place after the UDI’s decision.
In light of claims of a lack of due process or poor attitudes in the immigration administration, it is worth noting that the UDI and UNE combined granted residence permits to more than three out of four asylum seekers in 2019. Since 2001, UNE has granted residence permits to approximately 12,000 asylum seekers.
One of the reasons for establishing UNE was to achieve stronger due process protection, both in real terms and the perceived level of protection. The preparatory works to the Act establishing UNE states that an independent, court-like body will be particularly fit for the purpose. Previously, appeals in cases falling under the Norwegian Immigration Act or Nationality Act were considered by the Ministry of Justice and the Police. In section 6 below, I will go into more detail about UNE as a court-like body.
3. The procedural rules are statutory
UNE’s powers and duties are established in law. Key to the principle of due process is that these powers are exercised in accordance with the law (the principle of legal authority).
UNE shall ensure that the asylum seeker’s rights are safeguarded, and has a duty to make decisions that are in accordance with the provisions of the law. Neither the processing of the case nor its outcome shall be arbitrary. This entails that similar cases should have the same outcome (principle of equal treatment), but also that UNE must consider each case on its specific merits. This can pose a challenge: What cases have so much in common that their outcome should be the same, and what differences may justify different outcomes? In administrative law, discrimination on factual grounds is permitted, while unfair discrimination is not. The processing of the case should be predictable.
Naturally, it is important to the quality of the case processing and for safeguarding the rights of the applicant that case officers and decision-makers have the necessary expertise (education, experience, knowledge) and are able to make sound assessments. UNE places particular emphasis on recruiting competent personnel and to ensure their competence-building. As mentioned in section 6, UNE’s board chairs must meet all the requirements that apply to court judges.
Although UNE is a court-like body (cf. section 6), it is nonetheless an administrative body. This means that UNE, like the UDI, follows the rules of procedure set out in the Public Administration Act. In addition, some rules set out in the Immigration Act and the Nationality Act and their regulations apply. The Public Administration Act contains provisions on, inter alia:
- The administrative body’s duty to clarify the facts of the case
- TThe right of the parties to comment on new information (the contradictory principle)
- The parties’ right of access to the documents of the case
- The administrative body’s duty of confidentiality and duty to protect the party’s privacy
- The party’s right to be assisted by a lawyer or authorised representative
- That the persons preparing the basis for a decision or making a decision in the case are impartial, i.e. that they are not disqualified due to ties to interests or persons that may influence the decision
- Requirements concerning the grounds for the decision, giving the party information about the reasons for the outcome and on what circumstances the decision is based
- The right of appeal and the appeal deadline after a rejection in the first instance
As in other administrative cases, most of the case processing in immigration cases takes place in writing. Cases concerning protection (asylum), however, also include an oral statement.
All asylum seekers whose case is decided in Norway are interviewed by a UDI case officer. If the UDI rejects the application and an appeal is lodged against the decision, the UDI will transfer the documents of the case, including the interview document, to UNE. As stated in section 6 below, asylum cases that raise material questions of doubt are decided at UNE board hearings, where the asylum seeker normally has the right to appear in person.
In some cases, UNE will conduct a preparatory interview with the applicant, regardless of whether the case will be decided at a board hearing or by the board chair alone (cf. section 6 below on modes of decision).
In asylum cases, information about the country concerned may be very important. The information UNE uses includes reports from Landinfo (the Norwegian Country of Origin Information Centre), recommendations from the United Nations High Commissioner for Refugees, reports submitted by Norwegian embassies and reports from human rights organisations. Many of these reports are easily accessible online, for example on UNE’s and Landinfo’s web pages.
Over time, both users and society have developed higher expectations of an accessible and user-oriented administration, which is important for a party to be able to safeguard his or her rights. It is not enough that the administration itself puts an ‘approved’ stamp on its own processing of the case. We should be perceived as inspiring confidence, convincing users and society that UNE treats all cases in a way that ensures due process. In recent years, UNE has made special efforts to use plain, clear language in our decisions and texts published at une.no. We have modernised our website and adapted it to the needs of the users. On our website, we describe our practices and include links to different sources of country information as well as a public database of previous decisions. We are convinced that this helps to ensure due process.
4. Children have the right to be heard
Children are individuals and thus have the right to due process. The rights of children include the right to be heard before any authority makes a decision affecting the child. This is stipulated in the Norwegian Constitution, in the UN Convention on the Rights of the Child and in the Norwegian immigration legislation. To be heard means that children have the right to express their opinion, especially about their own situation and how they may be affected by a decision.
Children can be heard in writing or orally, and either in a direct dialogue between the child and the decision-makers at UNE or indirectly through parents or another spokesperson. Children’s right to be heard in immigration cases is first and foremost safeguarded by the UDI. For UNE, the question that most often arises is whether the child should be interviewed more extensively, for instance if the circumstances have changed. In recent years, UNE, the UDI and the police have all increased their knowledge about children’s rights and how they should be heard.
5. UNE’s decision is final
UNE’s decision is final. The applicant’s case has then been considered by two instances: the UDI and UNE. If UNE upholds the UDI’s rejection, the applicant may nonetheless, on certain conditions, have his or her case reviewed. Firstly, the applicant may bring action before the courts (cf. section 8).
UNE is involved in around hundred legal proceedings every year. A person who would like UNE to reverse a final decision may in some cases also ask UNE to reconsider the case (request for reversal). This applies, in particular, in cases where the need for protection has changed since UNE made its decision or where the applicant has new information indicating that the previous decision may be flawed. UNE may also reverse a previous decision and grant a residence permit on the grounds that accompanying children have developed stronger ties to Norway or because the applicant’s health situation has seriously deteriorated. See UNE’s latest report on children who have lived in Norway for a long period. In addition, a party (the applicant) may submit a request to the Parliamentary Ombudsman to consider the case.
6. UNE is a court-like administrative body
UNE is not only an administrative body, it is also a court-like body. What is court-like about UNE is that:
- UNE has board chairs who must meet the requirements that apply to court judges. That means, inter alia, that all UNE’s board chairs are experienced lawyers.
- Each of the board chairs is an independent decision-maker, in the same way as court judges. Neither politicians nor UNE’s director general or other staff members may instruct a board chair on the outcome of an individual case. This independence is justified by the need for the appellants’ due process.
- The board chairs shall not take into account any extraneous considerations or ‘political signals’ other than applying laws, regulations, international convention obligations and other sources of law. Politicians have no right to instruct UNE, either in general on the interpretation of the law or concerning the exercise of discretionary judgement. Their duty is to govern through laws and regulations.
- Cases that raise material questions of doubt will be decided at board hearings. At a board hearing, three decision-makers are present: the board chair and two board members (lay members). At most board hearings, the applicant will also be present, and normally also an interpreter and a lawyer or other authorised representative. In addition, a case officer from UNE’s secretariat will be present, and sometimes a country adviser from Landinfo. Other experts or witnesses may also occasionally be summoned. A board hearing has much in common with a court hearing.
However, UNE’s board hearings are different from court hearings in that a court hearing is a process between two parties, in which the court settles the dispute between the two parties. In the administrative procedure that applies to UNE, there is only one party (the applicant). UNE is independent of the UDI (the first instance body), and the UDI is not party to the appeal case before UNE. Like other administrative bodies, UNE is responsible for both the processing of the case and the decision, and must at the same time safeguard the applicant’s right to due process as well as control considerations in the public interest.
While legal proceedings before the courts are normally open to the public, UNE is an administrative body that is bound by a duty of confidentiality regarding sensitive personal information. UNE’s board hearings are held behind closed doors.
Most cases before UNE do not concern material questions of doubt. The law provides that these cases can be decided by the board chair alone or by UNE’s secretariat. Regardless of the mode of decision, the case will normally be prepared by UNE’s secretariat, and one or more case officers will be involved in establishing the facts of the case. This means that multiple experts usually take part in the processing of each case at UNE.
7. UNE’s most important duty is to provide protection
UNE’s most important duty is to provide protection (asylum) to those who are entitled to it. Our attitude is that it is better to grant asylum in a case where we are uncertain than to risk returning someone to face persecution.
In order to be entitled to protection (asylum), the person’s life, health or existence must be threatened in (all parts of) his or her country of origin without the authorities being able to help. According to the UN Refugee Convention, there must be a specific reason for this threat, such as religious belief or political opinion. Even if there is no specific reason, the person may nonetheless be entitled to protection under the European Convention on Human Rights. The threat must be serious, such as a risk of death penalty, torture or inhuman or degrading treatment. Less serious incidents, such as harassment, arrest of short duration, or problems obtaining work or income, do not in themselves constitute persecution. The threat must be real, not only a remote possibility. The rules on protection are set out in Chapter 4 of the Immigration Act.
Immigration into Norway is subject to control. In the assessment of the need for protection, UNE does not give weight to immigration control considerations, but it is UNE’s duty to distinguish between those who have the right to protection and those who do not. Because a wrongful decision to return a person to his or her country of origin can have fatal consequences for the person concerned, we have a wide margin of doubt. It will usually be enough that the grounds for protection have been established with reasonable probability. In other words, the probability requirement is less stringent than is normally the case in civil cases.
8. Court review important for due process
An asylum seeker whose application is rejected by the UDI/UNE can bring legal action to ask the court to consider the validity of the decision. The fact that independent courts of law (‘the third branch of government’) can review decisions made by the public administration is an important guarantee of due process.
In most areas of law, the appeal body will reverse some of the decisions made by the lower instance, and the courts will review some of the decisions made by the administration. That is how the rule of law works, with independent appeal bodies and courts of law.
The law and the assessment of evidence are not exact sciences. An asylum case may raise difficult questions whose answers may be debatable. This is why we see examples in immigration cases, as in other cases concerning the public administration, of different decision-makers and judges making different assessments. UNE’s board hearings sometimes end with a majority and a minority. Also, the district court, the court of appeal and the Supreme Court can come to different conclusions, with dissenting votes where several justices are involved. There have also been cases with many similarities where the courts have come to different conclusions. Due process is nonetheless ensured when an rejection from the UDI in the first instance can be appealed to UNE as the appeal body, and when UNE’s rejection can be reviewed by the courts.
In 2019, UNE’s decisions were upheld by enforceable court decisions in 70 out of 91 cases, or 77 per cent. This percentage has not changed much over the last few years. With reference to these numbers, it should be noted that a lawyer would seldom recommend legal action in a case where it is highly likely that the client will lose. Several lawsuits concern cases raising complex legal or factual questions.
A decision in a case concerning protection may be declared invalid for a number of reasons. In some cases, there will be disagreement about how to interpret a legal provision. Other cases may concern the facts of the case and whether the grounds for asylum have been substantiated with reasonable probability. Here, different persons may have different perceptions of the applicant’s credibility or assess the presented documentation differently. In addition, the facts of the case may change, for example where new documentation is presented. The court will normally assess an administrative decision based on the facts of the case at the time when the administrative body made its decision. The court may, however, give weight to new evidence or subsequent developments that shed light on the situation prevailing at the time of the decision.
The law is evolving, which means that what is right today is not necessarily good enough at a later date. For example, case law has led to more stringent requirements for UNE to justify its decisions in some areas. And UNE’s practices are also developing.
When a person’s application for protection (asylum) is rejected, the immigration administration may nonetheless grant the person residence based on strong humanitarian considerations or whether the person has particularly strong ties to Norway – often referred to as residence on humanitarian grounds. See Section 38 of the Immigration Act here. In some asylum cases, the issue before the court is therefore not the need for protection, but the humanitarian grounds for a residence permit, e.g. whether UNE has placed sufficient weight on the best interests of the child. Although the courts are reluctant to review a discretionary assessment made by the public administration, the administrative decision will be invalid if the court finds that the assessment is clearly unreasonable.
A decision may also be invalid if the administration has made a procedural error, for example that a child has not been sufficiently heard, that the case has not been sufficiently elucidated or that the decision is not sufficiently justified for the court to be assured that the decision is correct. The court’s conclusion will concern whether or not the decision is valid, and not whether the applicant should be granted a residence permit. If the conclusion is that the decision is invalid, UNE must reconsider the case. Sometimes, UNE may correct the error that made the decision invalid, by considering the case again and making a new decision, even if the outcome is the same. After a final and enforceable judgment on invalidity, however, UNE usually reverses its decision.
UNE will not only normally conform to a judgment in a specific case, but will also generally comply with judgments clarifying legal questions of doubt. These judgments may thereby have significant bearing on cases similar to the one brought before the court. Regardless of whether the court finds in favour of UNE, judgments presenting legal clarifications (precedent) are useful for both the UDI and UNE in that they will know what to rely on, and for the applicants’ right to due process.
9. Quality assurance system and public sources
UNE works systematically to improve the quality of its case processing, including through training, guidelines, memos and meeting places. More information about the quality assurance system is available here.
UNE also has an external database of previous decisions allowing the public to ‘peek at our cards’ and lawyers to check whether UNE has already made a decision in a similar case. But because cases and decision may differ, it is necessary to consider several decisions in conjunction with each other to understand UNE’s general practice in a certain area. Both the database of previous decisions and other public sources used by UNE in its case processing are available here.