In June 2017, two cases concerning asylum seekers from Mogadishu in Somalia were considered by UNE’s Grand Board.
The Grand Board concluded that the security situation in Mogadishu has changed significantly over the past five years, and that this change is sufficiently permanent to allow many refugees to return.
Cases considered by the Grand Board
The decision to use the Grand Board was based on a request from UDI. Reference was made to the fact that the cases concern interpretation of the instructions GI-14/2016 issued by the Ministry of Justice and Public Security and Section 37 first paragraph letter (e) of the Immigration Act. The instructions establish a new practice whereby residence permits granted under Section 28 of the Immigration Act can be revoked as a consequence of changed circumstances in the asylum seeker's country of origin, and irrespective of the person in question’s actions. The main issue for the Grand Board to consider was to what extent the circumstances must have changed before they constitute grounds for concluding that the need for protection is no longer present pursuant to Section 37 first paragraph letter (e).
The instructions do not apply to persons who have been granted permanent residence permits, quota refugees, persons who have been granted collective protection in a mass flight situation or a residence permit on strong humanitarian grounds.
The majority’s grounds
The majority of the Grand Board found that there were grounds for cessation of the appellants' refugee status and revocation of their residence permits pursuant to Section 37 first paragraph letter (e) in the two specific cases. Reference was made to the following: Protection granted to refugees is in principle a temporary measure for the period in which the need for protection in a third country is present. The provisions of the UN Refugee Convention concerning cessation entail that states are only obliged to provide protection to persons who cannot achieve protection in their country of origin. The right to revoke a permit also builds on a need to protect the right of asylum and the danger of undermining such right by maintaining the refugee status on false grounds or without the need being present. Cessation of refugee status and revocation of residence permits may either be based on changes relating to the refugee’s individual circumstances or general circumstances in their country of origin.
The majority has made an independent assessment of the available country information and has, on this basis, concluded that the changes that have taken place in Mogadishu are significant in relation to the situation at the time the appellants were granted refugee status and temporary residence permits. The majority makes reference to the changes in the security situation in Mogadishu from 2012 until today, as described below. With the help of AMISOM, the Somali authorities regained control of the city in 2012, which has led to a gradual improvement in the security situation in Mogadishu, and that al-Shabaab is no longer deemed to constitute a real risk to the appellants.
Reference is made to the fact that al-Shabaab appears to have been weakened and that it is unlikely that they will become capable of taking control of large cities such as Mogadishu. According to available country information, Mogadishu is currently characterised by reconstruction, an economic upturn and optimism. This means that also Somalians who have been living outside the country are now returning to the city. The main security threats in Mogadishu are terrorist attacks carried out by al-Shabaab. According to country advisers, the terror threat is aimed at the authorities and representatives of the authorities, as well as international representatives who support the authorities in Mogadishu. When the civilian population is affected, it is because they are unlucky and in the wrong place at the wrong time.
The majority underlines that, despite positive changes in Somalia related to social development and the police and legal system, much remains to be done before a well-functioning law enforcement system is in place with the ability and will to assist its citizens. Somalia is a country with a strong clan system that largely provides people with the security and protection they need. Members of big, dominant clans are generally better provided for than members of small clans or people who do not belong to a clan. Both appellants in the Grand Board cases belong to strong, dominant clans in Mogadishu. The majority emphasises that, in all cases in which revocation is an option, an individual assessment shall be made of whether the person will nonetheless need protection based on individual circumstances, despite the circumstances having changed. It shall also be considered whether there are strong humanitarian considerations that indicate granting a permit pursuant to Section 38 of the Immigration Act.
The minority’s grounds
The minority is of the view that the fact that the need for protection is no longer present does not constitute sufficient grounds for revocation pursuant to Section 37 first paragraph letter (e) of the Immigration Act. In their opinion, a significant change must also have taken place in the democratic and human rights situation in the country of origin, which they do not believe to be the case in Somalia. The minority makes particular reference to the fact that the security situation in Mogadishu has changed because al-Shabaab no longer has a dominant influence as of mid-2012, but that the available country information is divided as to whether al-Shabaab constitutes a risk to the civilian population in Mogadishu. Therefore, the minority does not agree that a significant and permanent change has taken place in the city’s security situation.
The Grand Board’s clarification of matters of principle
Cessation of refugee status under Section 37 first paragraph letter (e) of the Immigration Act is subject to a caution requirement. It is not sufficient that a foreign national would not currently have been granted protection because the situation in their country of origin has changed. For cases in which a person has a recognised need for protection, and he or she has been granted refugee status and a temporary residence permit on this basis, it must be included as a safety margin that the general change is of a certain degree of permanence. How permanent the change must be will depend on the nature of the conflict in the country in question and what changes have taken place. The changed circumstances in Mogadishu’s security situation the past five years after al-Shabaab withdrew from the city is deemed to be significant and of a sufficient degree of permanence to meet the requirements set out in Section 37 first paragraph letter (e) of the Immigration Act. This does not apply to persons who are deemed to be particularly vulnerable due to lack of support from a clan or family network, or who for individual reasons still have a need for protection pursuant to Section 28 of the Immigration Act. It shall nonetheless be considered in all cases whether a foreign national has an individual need for protection pursuant to Section 28 of the Act, or whether circumstances exist that indicate that the person in question should be granted a permit on grounds of strong humanitarian considerations or a particular connection to Norway.