The Supreme Court of Norway is set to decide the threshold for when involvement in a serious crime forms the basis for exclusion from refugee status, with the case being heard on November 14th and 15th 2023.

The case involves a Syrian man who served in the Syrian army during the uprising against the Assad regime. Initially, he met the criteria for asylum under Norway's Immigration Act § 28. In 2018, the Norwegian Immigration Appeals Board (UNE) upheld the decision made by the Norwegian Directorate of Immigration (UDI) that his actions while serving in the army formed the basis for excluding him from refugee status.

UNE argued that his actions as a soldier were so severe that they did not align with the status of a refugee. According to Immigration Act § 31, if there is serious reason to believe that a foreign national has committed a serious non-political crime outside of Norway's borders, they should be excluded from refugee status.

The Syrian was granted a temporary residence permit under Immigration Act § 74. UNE has since found no reason to change this decision. The case went to the district court in September 2022, where UNE prevailed. However, in January 2023, the appellate court reached the opposite conclusion, leading to an appeal to the Supreme Court.

Exclusion from refugee status

Exclusion from refugee status means that the authorities in the asylum-seeking country can deny a seeker the right to protection under the Immigration Act § 28 if there is serious reason to believe they have committed acts regulated by § 31 of the same act.

The purpose of exclusion is twofold:

  • firstly, some actions are so severe that those who have committed them do not deserve international protection;
  • secondly, it ensures that individuals who have committed serious crimes abroad do not avoid prosecution by seeking asylum.

The parties in this case agree that the actions the claimant participated in were serious, non-political, and committed outside Norway's borders. The question for the Supreme Court is limited to whether the involvement is sufficient grounds for exclusion from asylum. Can an ordinary conscripted soldier, who is not the perpetrator, be considered to have participated in serious crimes committed by his superiors and other service branches than those to which he was attached?

This Supreme Court case is well-suited to clarify the threshold for exclusion due to participation in a crime. The war in Ukraine and the subsequent refugee flows mean that Norway must expect asylum applications from various individuals who have served in the war. Generally, the immigration authorities assume that many of these individuals may have participated in serious abuses against civilians.

Judgement from the Court of Appeal

The judgement can be found here: Borgarting Court of Appeal - Judgement: LB-2022-152712 - Lovdata.

The Court of Appeal, with some hesitation, concluded that UNE had applied an incorrect understanding of the law regarding complicity responsibility, as per Section 31, paragraph 1, letter b of the Immigration Act. The actions of the foreign national as a conscript soldier in Syria were not considered to constitute a 'substantial contribution' to the main criminal acts committed by the security service and officers in the foreign national’s regiment.

The parties largely agree on the factual circumstances that might form the basis for exclusion. The disagreement concerns whether the acts of complicity are sufficient to form a basis for exclusion (the objective side of complicity responsibility).

The Court of Appeal concludes that the complicity responsibility is fulfilled under national criminal law, but, after some doubt, not under international complicity responsibility.

Legal practice for exclusion from asylum

The vast majority of cases in UNE where exclusion has been considered have ended with exclusion from refugee status. Exclusions have been considered under several provisions of Section 31, but the majority of cases involve exclusion under Section 31, paragraph 1, letter b. In almost all these cases, the applicants have been granted permission under Sections 74 and 73, paragraph 2 of the Immigration Act.

The practice memo 'Exclusion (eksklusjon)' (in Norwegian only) provides an overview of UNE's practice. It is based on a review of a number of decisions made since 2015.