Immigration Appeals Board v. A, B, and C, HR-2017-2078-A, (case no. 2017/670)

Table of Contents

Executive summary

Parties to the case

Name of the Court

Further information on the court

Interveners/experts

Person of concern

Original language of the decision

Country of origin

Country of pending case

Topics / Key terms

Legislation cited

Other comments, references or feedback

Full text of the case

Executive summary

Three refugees with residence permit in Norway were denied issuance of travel documents due to doubt about their identity. The Supreme Court stated, basing its decision on the Refugee Convention article 28, pursuant to which refugees are entitled to travel documents "unless compelling reasons of national security or public order otherwise require", see the Immigration Act section 64 and the Immigration Regulation section 12-1, that it is consistent with the Convention not to issue travel documents if it is more likely that the identity stated is false.

The Supreme Court held that false identification documents constitute a serious security risk and that the trust in Norwegian travel documents may be reduced if such documents are issued to persons with uncertain identities. For one of the refugees, the Supreme Court unanimously concluded that it was more likely that the identity he stated when applying for a travel document was correct. It was emphasised that he had only used a different identity once for a short period of time, and that he had stayed in Norway for a long time under the same identify without there being indications that this identify was false. For the other two, who had stated five and three different identities respectively when staying in other countries, the Supreme Court's majority concluded that their identity had not been substantiated. Dissent 4-1.

Parties to the case

The state represented by the Immigration Appeals Board
v.
A
B
C

Name of the Court

Supreme Court of Norway (Norges Høyesterett)

Further information on the court

Justice Kallerud

Justice Indreberg (dissenting)

Justice Noer

Justice Bergh

Justice Tønder

Interveners/experts

Self-help for Immigrants and Refugees (SEIF) (intervener) (Counsel Mads Andenæs)
Norwegian Organisation for Asylum Seekers (NOAS) (intervener) (Counsel Anders Christian Stray Ryssdal)
The UN High Commissioner for Refugees (intervener) (Counsel Brynjulf Risnes)

Person of concern

Refugees

Original language of the decision

Norwegian

Country of origin

Eritrea, Iraq

Country of pending case

Norway

Topics / Key terms

identity, travel documents, national security/public order

Cases cited

Relating and lower court: 

Supreme Court judgment, Rt-2012-494

Oslo District Court's judgment of 2 November 2015

Borgarting Court of Appeal 13 February 2017

Other decisions:

Supreme Court judgment in HR-2017-569-A para 38, para 44

Supreme Court judgment Rt-2006-1121, para 14

Legislation cited

International and regional

1951 Refugee Convention, article 25, 27, 28 

Resolution 1373 (2001) from the UN Security Council

Bangkok Declaration - UN's 11th Congress on Crime Prevention and Criminal Justice, para 27

Action Plan from the European Commission of 8 December 2016

Protocol no. 4 of the European Convention of Human Rights article 2

UN Covenant on Civil and Political Rights article 12

National

Immigration Act section 28 subsection 1 a.

Passport Act section 3

Immigration Act section 64

Immigration Regulation section 12-1 subsection 1 b 

Immigration Regulation section 12-2 subsection 5 and section 12-6 subsection 6

UDI's directive RS 2012-009, page 4 and page 8 et seq., item 8 on page 28, page 29

Immigration Act section 3, section 4

Norwegian Constitution article 106

Other material:

Norwegian translation provided in Proposal to the Storting no. 135 from 1952 (article 28 Refugee Convention)

Proposition to the Odelsting no. 75 (2006-2007),  page 51

Official Public Report NOU 2004:20 "New Immigration Act" page 359

Joint document issued by the ICAO and the UNHCR in October 2013 – "Guide for
Issuing Machine Readable Convention Travel Documents for Refugees and Stateless
Persons", page 11

Professor Atle Grahl-Madsen in his comments to the Refugee Convention of 1963, page 14

Passport Act, Proposition to the Odelsting no. 62 (1996-1997) page 1

ICAO's "Guide for Assessing Security of Handling and Issuance of Travel
Documents", January 2010

Proposition 90 L (2015–2016) regarding amendments in the Immigration Act, page 150
Proposition to the Odelsting no. 75 (2006–2007) Online source

Other comments, references or feedback

Dissenting opinion by Justice Indreberg paras 123-129

Full text of the case

THE SUPREME COURT OF NORWAY
On 31 October 2017, the Supreme Court gave judgment in
HR-2017-2078-A, (case no. 2017/670), civil case, appeal against judgment
The state represented by
the Immigration Appeals Board
(Attorney General represented by Anders
Wilhelmsen)
v.
A
B
C

Self-help for Immigrants and Refugees
(SEIF) (intervener)
(Counsel Mads Andenæs)
Norwegian Organisation for Asylum
Seekers (NOAS) (intervener)
(Counsel Anders Christian Stray Ryssdal)
The UN High Commissioner for Refugees
(intervener)
(Counsel Brynjulf Risnes)

V O T I N G :

(1) Justice Kallerud: The case concerns rejection of applications for travel documents for
refugees. The main question is whether it is in accordance with the UN Refugee
Convention article 28 to refuse to issue travel documents to refugees with lawful
residence in Norway, because there is doubt regarding their identities.
(2) The case before the Supreme Court concerns three persons who are registered in Norway
under the names of A, B and C. All three have refugee status in Norway and residence
permits on that basis, see the Immigration Act section 28 subsection 1 a. However, they
have been denied travel documents for refugees because the immigration authorities find
that they have not substantiated that the identities claimed are correct.
(3) The respondent stating to be A, born 00.00.1972 and an Eritrean citizen, was stopped by
the customs when arriving by train from Stockholm on 31 December 2010. He identified
himself with an Ethiopian passport under the name of D, born 00.00.1979. During an
interview, he stated that the passport was false. He further explained that during his stay
in Greece, he had claimed the false identity, E, to Greek authorities. He also presented a
deportation document from Greece under the name of F born 00.00.1977. Finally, he has
stated that he, on his journey to Europe, used a Sudanese passport under the name of G.
Hence, he has acted under a total of five identities.
(4) As documentation for the identity he is now stating – A – he has presented an Eritrean
national identity card bearing this name, but where the date of birth is stated to be
00.00.1976. The correct date of birth according to A is 00.00.1972. He has also presented
a marriage certificate, but there the date of birth is stated to be 00.00.1972. Furthermore,
he has presented a copy of a military service certificate.
(5) The immigration authorities found that A's identity information had not been
substantiated, but trusted nevertheless that he was an Eritrean citizen. Due to the security
situation in Eritrea, the Norwegian Directorate of Immigration (UDI) granted A a
residence permit in Norway as a refugee by a decision of 19 May 2011. By a decision of
17 February 2012, the Immigration Appeals Board (UNE) dismissed A's appeal against
the refusal to issue travel documents. Following a notice of action, UNE reconsidered A's
case, but declared in its decision of 22 October 2014 that there was no basis for reversal.
(6) The respondent stating to be B, born 00.00.1984 and an Eritrean citizen, applied for
asylum in Norway on 9 October 2007. During his police interview, he claimed to be born
on 00.00.1987, while during his asylum interview, he stated the date of birth I have
already mentioned, and with which he is registered in Norway.
(7) Searches for his fingerprints in international registers showed that he had been registered
as an asylum seeker in Italy on 20 July 2007 under the identity of H, born 00.00.1988. The
searches also revealed that he had been granted a residence permit in Italy from 22 August
2007 until 21 August 2008. To avoid being sent back to Italy, he damaged his fingertips
hoping that Norwegian authorities would not discover that he was previously registered as
an asylum seeker there. He explained to the court of appeal that he – like many other
asylum seekers – claimed a false identity before Italian authorities because he would
rather seek asylum in Norway.
(8) To prove the identity claimed before the Norwegian authorities – B – he has presented
school documents, member cards from a student organisation and his mother's national
identity card. In UNE's decision of 22 October 2014, it is set out that "documents from
Eritrea are generally not sufficiently verifiable to serve as adequate documentation for the
appellant's identity".
(9) B's application for asylum in Norway was rejected in 2008. Italian authorities were, in
accordance with the Dublin II Regulation, deemed to have accepted to receive him, but he
was not returned to Italy in time. Thus, UDI passed a new decision on 15 July 2010
granting him residence permit in Norway as a refugee. Although the immigration
authorities found that B's identity had not been substantiated, they trusted that he was
from Eritrea and in need of protection. His application for a travel document for refugees
was rejected due to the doubt regarding his identity. By its decision of 25 August 2011,
UNE dismissed his appeal against the rejection of his application for travel documents.
(10) Following a notice that a writ would be issued, UNE reconsidered B's case, but declared
in its decision of 22 October 2014 that there was no basis for reversal.
(11) The respondent stating to be C, born 00.00.1977 and an Iraqi citizen, applied for asylum
in Norway on 9 July 2002.
(12) In the court of appeal's summary of C's background and the processing of his case, the
following is set out:
"He claimed to be a Feyli Kurd, and that he feared Iraqi authorities after he, in May
2002, was sentenced to imprisonment of 25 years for treason. On 18 November 2005, he
stated to UDI that he was homosexual and that he sought asylum for that reason too. In
the meantime, it had been discovered that C, in 1998, had sought asylum in the
Netherlands under a different identity (I, born 00.00.1975), and that he had been
registered in Germany under a third identity (J, born 00.00.1985). He had handed in a
new application for asylum in the Netherlands in 2003, only to be returned to Norway.
By its decision of 12 April 2006, UDI rejected the application for asylum and residence
permit in Norway. The decision was appealed to UNE, which by its decision of 27
August 2007 dismissed the appeal. C's petition for reversal was also dismissed.
C then brought an action against the state represented by UNE contending that UNE's
decisions were invalid. He no longer argued that he was entitled to asylum or protection
from being returned because he was a Feyli Kurd and therefore convicted for treason in
Iraq. On the other hand, he claimed that he had a well-founded fear of persecution by
the Iraqi government and his family or clan in Iraq because of his homosexuality. UNE
no longer contested that C was a homosexual, but held that the risk of persecution had
not been sufficiently substantiated."
(13) Both the district court and the court of appeal ruled in favour of the state. However, the
Supreme Court concluded in its judgment in Rt-2012-494 that the court of appeal's
judgment had to be set aside. In para 57, it is stated that if "fear of persecution is the
reason why the applicant chooses to hide his sexual identity, the requirement for a 'wellfounded
fear of persecution' must be deemed fulfilled". The court of appeal therefore
applied the law – without considering the cause – concluding that C in the event of a
possible return to Iraq had to be expected to adjust his way of life so as to avoid
persecution, see paras 60 to 62.
(14) Following this, UNE granted C a residence permit in Norway as a refugee in its decision
of 22 August 2012. In its decision of 17 October 2012, UDI refused to issue a travel
document since there was doubt regarding C's identity. The decision was appealed to
UNE, which dismissed the appeal in its decision of 11 November 2013. This decision
referred to earlier decisions concluding that C had claimed other identities before Dutch
and German authorities, and that he had given conflicting information about his parents,
wife and children to Norwegian and Dutch authorities. He had not presented any
documents to verify his identity.
(15) Following a notice of action, UNE reconsidered C's case, but found, in its decision of 22
October 2014, that there was no basis for reversal.
(16) A, B and C – together with a number of other refugees in a similar situation – brought an
action to Oslo District court claiming among other things that the rejections of the
applications for travel documents were invalid.
(17) By Oslo District Court's judgment of 2 November 2015, UNE's rejection of the
applications for a travel document was declared invalid for all the applicants. In the court
of appeal's view, the fact that several identities had been claimed was not a "compelling
reason" for rejecting the applications under the Refugee Convention article 28. In
addition, the court of appeal found that all claimants had substantiated their identity.
(18) The state appealed the district court's judgment to Borgarting Court of Appeal, which
dismissed the appeal on 13 February 2017. The court of appeal concluded that a general
doubt regarding a refugee's identity is not a "compelling reason" required under the
Refugee Convention article 28 for refusing to issue travel documents. In the court of
appeal's view, serious and extraordinary circumstances had to be demonstrated with
respect to each refugee. That was not the case here. For instance, there were no
indications that the refugees were being prosecuted in other countries, were connected to
international terrorist networks or involved in human trafficking. The court of appeal
concluded that the decisions thus had to be declared invalid. With regard to the three
persons concerned in the Supreme Court case, the court of appeal did not specifically
consider whether their identity had been verified.
(19) UNE has appealed the court of appeal's judgment to the Supreme Court. The appeal
concerns the application of the law and includes only the three parties where the court of
appeal did not specifically address whether their identity had been verified.
(20) The Norwegian Organisation for Asylum Seekers (NOAS), Self-help for Immigrants and
Refugees (SEIF) and the UN High Commissioner for Refugees have acted as interveners
for the respondents.
(21) The appellant – the state represented by UNE – has mainly contended:
(22) None of the respondents have proved their identity. This is especially clear as regards A
and C, who have claimed five and three different identities respectively, and who have
lived for longer periods under other identities in other European countries. But also with
regard to B, it is more likely that the identity he has claimed before the Norwegian
authorities is false. He denied having applied for asylum in India and for having had his
fingerprints taken there, and he tried to conceal this by damaging his fingertips. The
documents he has presented are of little evidential value. At the police registration, he
stated a different date of birth than at the asylum interview.
(23) Doubt with regard to identity falls within the term "compelling reasons of national
security or public order" in the Refugee Convention article 28. It is a general and basic
condition for right to issuance of a travel document that the applicant provides proof of
his identity. On a national level, this is set out in the Passport Act section 3,
internationally in a number of recommendations and action plans etc., from the EU, the
UN and the International Civil Aviation Organization (ICAO), among others.
(24) Identity checks and measures to prevent the use of false identity documents are crucial in
the combat against serious crime. The Norwegian authorities' refusal to issue a travel
document on the rare occasions that a refugee cannot prove his or her identity is
imperative to maintain national security and public order. If the respondents should
succeed, travel documents will be issued showing an identity that is probably false. That
would undermine the trust in Norwegian travel documents and legitimise the use of a
false identity.
(25) It does not follow from the wording in the Refugee Convention that there must be other
individual reasons for refusing to issue travel documents than doubt regarding identity.
Such a requirement can also not be derived from other sources. The court of appeal is
wrong on this point. And in any case, it is impossible to control whether there are
individual circumstances to consider, such as crimes committed and risk of future
offences, when the authorities do not even have a reliable identity to deal with.
(26) The immigration authorities acknowledge that it can be difficult for asylum seekers to
prove their identity adequately, and this is taken into account in practice. In some cases –
such as the one at hand – it must be assumed that the applicant has a need of protection
despite the fact that his or her identity has not been verified. It is acknowledged that the
lack of valid identification is a considerable disadvantage. But this is not solved by
issuing a travel document showing an identity that is probably false. The basic problem is
the unknown identity, not the lack of travel documents. The issue is given attention in the
ongoing work connected to the issuance of national identification certificate.
(27) The state represented by UNE has submitted this prayer for relief:
"1. Judgment is to be given in favour of the state represented by UNE.
2. Costs are not to be awarded."
(28) The respondents – A, B and C – have mainly contended the following:
(29) The Refugee Convention article 28 must be interpreted strictly according to its wording.
The wording is the binding norm, and no other sources or interpretation factors can be
applied. There is no room for a dynamic interpretation, and the state cannot exercise
discretion. The Norwegian regulations – the Immigration Act section 64, the Immigration
Regulation section 12-1 subsection 1 b and UDI's directive – do not satisfactorily capture
the strict wording in the Refugee Convention article 28. However, this is of less
importance since the respondents' entitlement to travel documents follows directly from
the wording of the Refugee Convention article 28, cf. the Immigration Act section 3.
(30) The entitlement to documents is also related to the freedom of movement pursuant to,
among others, the Norwegian Constitution article 106, but this is overshadowed by the
strict requirements in the Refugee Convention, cf. the expressions "compelling" and
"require".
(31) As the court of appeal correctly holds, a travel document can only be denied in serious
and extraordinary situations. A general doubt regarding identity does not fall within the
scope of "national security or public order". Additionally, there are no "compelling
reasons" which "otherwise require" that the immigration authorities reject applications for
travel documents from refugees unable to prove their identity. Travel documents may – as
the court of appeal holds – only be denied if the authorities can substantiate that for this
particular applicant there are specific circumstances that make it necessary to refuse to
issue travel documents based on the concern for public safety or public order.
(32) Also, all three respondents have substantiated their identity. Here, it is sufficient to refer
to the district court's assessment of evidence.
(33) A, B and C have submitted this prayer for relief:
"The appeal is to be dismissed.
The respondent are to be awarded costs before the Supreme Court."
(34) The intervener Self-help for immigrants and refugees (SEIF) supports the respondents'
arguments and has submitted this prayer for relief:
"The appeal is to be dismissed.
The intervener Self-help for immigrants and refugees (SEIF) are to be awarded costs
before the Supreme Court."
(35) Also, the intervener Norwegian Organisation for Asylum Seekers (NOAS) has mainly
endorsed the respondents' arguments. NOAS has also emphasised the following:
(36) Norwegian authorities have accepted that the respondents have a need for protection. On
this basis, they have been granted residence permits in Norway, and it must be expected
that they remain residents here indefinitely. A travel documents for refugees is the only
valid identification document that can be issued. When they are denied this, they are
excluded from travelling abroad, which they generally need to do more than others. Also
their chances of being integrated in the Norwegian society are materially reduced, which
is otherwise an important goal for the authorities. Without a travel document, it is, among
other things, impossible to use general bank services, they cannot have a drivers' licence,
they cannot purchase real property and they cannot have jobs requiring a certificate of
good conduct. The consequences may in practice only be avoided by issuing a travel
document.
(37) The state has not demonstrated any genuine risk that Norwegian travel documents lose
their status if issued to this small group of refugees. Nor has it been documented that
travel documents with a false identity have actually been used to commit crimes, or that
the crime rate will increase if travel documents are issued to refugees whose identities
have not been substantiated.
(38) The limit set by the Norwegian government – travel documents are only issued on
identities that have been substantiated, that is, by more than 50 percent – has no legal
basis. The limit is completely inappropriate. It is meaningless considering combat against
crime etc. to issue a travel document to a person whose identity has been substantiated by
51 percent, while refusing to issue the same document when a person's identity has been
substantiated by 49 percent.
(39) The intervener NOAS has submitted this prayer for relief:
"1. The appeal is to be dismissed.
2. Norwegian Organisation for Asylum Seekers are to be awarded costs before
the Supreme Court."
(40) The intervener UN High Commissioner for Refugees has among other things emphasised
that the Refugee Convention article 28 gives an individual right to each refugee. Special
emphasis must be placed on the fact that refugees normally lack documents that may
contribute to establishing their identity. The provision must be interpreted restrictively.
Each applicant's situation must be assessed individually. The state carries the burden of
proof.
(41) The High Commissioner is not familiar with any widespread misuse of travel documents,
and no risk in that regard has been documented in the case at hand. No "compelling
reasons" are demonstrated for refusing to issue travel documents to the respondents.
(42) The UN Commissioner for Refugees has not submitted any prayer for relief.
(43) Certain new documents have been presented and a judicial taking of evidence has been
carried out on behalf of the Supreme Court. Except from the number of parties being
reduced, the case remains mainly the same as before the lower instances.
(44) My view on the case
(45) The court of appeal has given this account for the significance of travel documents:
"Similar to a passport, a travel document gives the refugees a right to cross country
borders. To be in possession of a travel document is therefore a condition for being able
to travel abroad and visit family and others who do not live in Norway. As a travel
document is currently the only valid identification document for refugees in Norway, it
is also important for the refugees' possibilities to participate in society. A driver's licence
cannot be issued to refugees without a travel document. A travel document is also a
condition for having payment cards with a photo issued and for receiving a 'BankID'.
Without a travel document it is not possible for the refugees to purchase real property,
raise bank loans have jobs requiring a certificate of good conduct."
(46) The parties have not had strong objections to this description, which I find adequate also
after the thorough review during the hearing before the Supreme Court.
(47) Thus, it is clear that not having travel documents issued is a serious disadvantage to the
respondents.
(48) I mention that all respondents have had Schengen uniform-format residence cards issued
pursuant to the Immigration Act section 64 a. Thus, they have received "identity papers"
meeting the requirements in the Refugee Convention article 27. But this document is not
generally accepted as anything but a proof of lawful residence in Norway.
(49) The relevant part of the Refugee Convention article 28 reads:
"The Contracting States shall issue to refugees lawfully staying in their territory travel
documents for the purpose of travel outside their territory, unless compelling reasons of
national security or public order otherwise require, and the provisions of the Schedule
to this Convention shall apply with respect to such documents."
(50) In the Norwegian translation provided in Proposal to the Storting no. 135 from 1952, on
ratification of the Convention, the terms tvingende hensyn [compelling reasons], nasjonal
sikkerhet [national security] and offentlig orden [public order] are used.
(51) The following is set out in the Immigration Act section 3:
"The Act shall be applied in accordance with international provisions by which Norway
is bound when these are intended to strengthen the position of the individual.
(52) Refugees' right to a travel document pursuant to the Refugee Convention article 28 is
undoubtedly a rule having as its object to "strengthen the position of the individual".
(53) As concerns the meaning of the provision in the Immigration Act section 3, the following
is set out in Proposition to the Odelsting no. 75 (2006-2007):
"The provision is a continuation of the applicable Act section 4, and governs the
relationship to international provisions. Norway's obligations under international law
have an impact in relation to the Immigration Act if this is to the advantage of the
immigrant. The provisions in the draft are of course worded with the aim of being in
accordance with these provisions, but if there is doubt regarding the application of a
provision, section 3 implies that one must use the interpretation option that has the
effect that international law is not breached. International provisions by which Norway
is bound are, hence, to be applied for interpretation and supplementation of the Act, in
replacement of or with an impact on provisions that may point in the opposite
direction."
(54) The interpretation the Refugee Convention article 28 is thus central to the case at hand,
see also the Supreme Court judgment in HR-2017-569-A para 38. Before I deliberate on
the interpretation, I will briefly comment on the Norwegian acts and regulations related
to article 28.
(55) The Immigration Act section 64 subsection 1 first sentence reads:
"A foreign national who is granted a residence permit under section 28 shall upon
application also be granted a refugee travel document for travel outside Norway
provided no special reasons argue against it."
(56) The preparatory works of the provision barely mentions the Refugee Convention article
28.
(57) Official Public Report NOU 2004:20 "New Immigration Act" page 359 gives the
impression that Norway, under article 28, is obliged to issue travel documents to refugees.
(58) The Report then sets out the following:
"After having considered overlapping concerns, the committee proposes that the
provisions on travel documents for refugees and immigrants' passports are continued in
a new act. This involves at the same time a continuation of the provisions on when travel
documents/immigrants' passports can be denied and confiscated. The committee deems
this important. For reasons of deterrence in particular, it ought not to be normal
procedure to issue travel documents to persons whose identity the immigration
authorities do not know, such as earlier asylum seekers having operated with several
identities and/or having failed to document their identity without giving an acceptable
explanation. Considerations of deterrence also entail that the authorities should handle
all misuse strictly."
(59) The meaning of "reasons of deterrence" and "considerations of deterrence" is not
provided, and the deliberation is aligned with the terms used in article 28.
(60) The committee's proposal was followed up in Proposal to the Odelsting no. 75 (2006-
2007). The ministry also did not discuss article 28, and the proposal to continue the then
practice has not been commented on. In the special motives on page 432, however, it is
set out that "doubts regarding the immigrant's identity" will "still make it possible to
refuse to issue of travel documents".
(61) In the Immigration Regulation section 12-1, further provisions are given on exemptions
from the right to have a travel document issued. Pursuant to litra b, travel documents may
– like under the previous regulation – be denied when "there is doubt regarding identity of
the immigrant".
(62) Further guidelines are given in UDI's directive RS 2012-009. It is set out in item 8 on
page 28 that if there is "doubt regarding the identity of the immigrant", an application for
a travel document should "as a main rule be rejected". Furthermore, it is stated that "doubt
regarding the identity" means that "the identity has not been substantiated"; that is, the
identity is most likely false.
(63) The rejections of the respondents' applications are in accordance with these guidelines; the
immigration authorities find that it is more likely that the identities claimed in Norway are
not true. On this basis, no travel documents have been issued.
(64) The state has informed the Supreme Court of the fact that most refugees are able to
substantiate their identity and receive travel documents although 90 percent of the asylum
seekers do not present what is regarded as valid identification. During the period from
2014 until September 2017, asylum was granted to almost 23,000 refugees. At the same
time, travel documents were issued to all but 64 persons.
(65) The respondents' cases are stated to be rather typical for cases where travel documents are
normally denied: Despite the fact that the authorities find that the applicants' identities
have not been verified, their need of protection has been sufficiently clarified. Refugee
status is thus granted, but the doubt regarding their identity has the effect that their
applications for a travel document are rejected. Also, as it is has been stated, it is normal
that the doubt with regard to identity the immigration authorities believe exists is due to
the applicants' use of different identities in other European countries before they came to
Norway.
(66) I will then revert to the interpretation of the Refugee Convention article 28.
(67) In the Supreme Court judgment in HR-2017-569-A para 44, the following is stated
regarding the principles for interpretation of the Refugee Convention:
"The Convention must be interpreted in accordance with the principles in the Vienna
Convention of 23 May 1969. The starting point is the natural understanding of the
wording, read in the context in which it is placed and in light of the object of the
Convention, see the Supreme Court judgment in Rt. 2012 page 494 para 33. It is set out
in articles 31 and 32 of the Convention that other sources of law will have limited
relevance to the interpretation. This entails that there is little room for a dynamic
interpretation.
(68) Hence, the wording is central to the interpretation.
(69) Pursuant to article 28, the Convention States shall as a starting point issue travel
documents to refugees lawfully staying in their territory. This is the right of each refugee,
and can only be denied in the events stated in the exemption.
(70) The natural interpretation of the wording in article 28 is that much is required before a
travel document to a refugee with a residence permit can be denied.
(71) In a joint document issued by the ICAO and the UNHCR in October 2013 – "Guide for
Issuing Machine Readable Convention Travel Documents for Refugees and Stateless
Persons" – it is stated on page 11 that the exemption should be interpreted and applied
"restrictively" and that it only concerns "grave and exceptional circumstances". The same
is held by the UNHCR in the case at hand. The court of appeal has used the term "serious
and extraordinary situations". I agree that this wording – allegedly used for the first time
by Professor Atle Grahl-Madsen in his comments to the Refugee Convention of 1963
page 14 – gives a good starting point for interpretation of the restricted scope of the
exemption.
(72) Also, the preparatory works of the Convention strengthen the impression that this
concerns a narrow exemption. A rejection based on doubt regarding the immigrant's
identity seems, however, not to have been discussed.
(73) The term "special reasons" in the Immigration Act section 64 does not match the content
of the Refugee Convention article 28. Nor the provision in the Regulation – that travel
documents "can be denied" when "there is doubt regarding the immigrant's identity" –
gives any guidance as to the subject to consider pursuant to article 28, see the Immigration
Act section 3.
(74) The wording states directly that only circumstances that are within the scope of "national
security or public order" may serve as a basis for not issuing travel documents. And these
circumstances must be of such strength that "compelling reasons … require" that travel
documents are not issued to a refugee applying for it.
(75) The wording of article 28 does not entail a requirement that the state can only reject an
application for travel documents if it can be substantiated that the applicant would
constitute a specific danger to national security or public order if he had travel documents
issued. The wording implies that there must be "compelling reasons of national security or
public order" for rejecting an application. If so is the case, it has no significance if this
basis for rejection applies to more refugees. However, article 28 gives an individual right
for each refugee, and it must be assessed individually whether the asserted reason applies
with the necessary strength for this applicant.
(76) In the assessment whether the doubt regarding identity falls within the scope of the
exemption in the Convention, I take as a starting point that it is a general and basic
requirement that anyone applying for a travel document must establish his or her identity.
(77) For issuance of Norwegian passports, this follows from the Passport Act section 3 stating
that it is a "condition for entitlement to a passport that "the applicant provides proof of his
or her identity". An Addendum to the Refugee Convention contains guidelines as to the
form of the travel document. In its preamble, it is stated that the travel document is issued
"in lieu of" a national passport. It is therefore reasonable to apply the same principles with
regard to these documents as with regard to a passport.
(78) The primary purpose of a passport and other travel documents issued by the authorities is
to serve as proof of identity to enable the authorities of the country to which the owner
travels to maintain immigration control, see the preparatory works of the Passport Act,
Proposition to the Odelsting no. 62 (1996-1997) page 1. On these grounds, it would be
contrary to the document's central function – proof of identity – if the authorities were to
issue a passport based on an identity that is most probably false.
(79) In my view, this starting point alone is enough to establish that doubt regarding identity –
i.e. it being more likely that the identity the applicant claims when applying for a travel
document is false – gives basis for refusing to issue travel documents to refugees. It
affects no doubt the national – and international – security and order that travel documents
are only issued when it at least has been held than the identity most likely is correct.
Moreover, at least when it is more likely that the identity claimed in the application for a
travel document is false, there are "compelling reasons" for rejecting the application: It is
imperative that a public travel document is not issued that would show an identity that the
issuer believes is most likely false.
(80) Particularly due to the highly difficult situation the doubt regarding identity creates for
this group of refugees, I will deliberate more closely on the significance of travel
documents only being issued to persons whose identity has been established.
(81) There is a number of documents nationally and internationally that stress the significance
of the trust in identity documents. The use of false identification in connection with
serious crime is highlighted in particular. I will now give some examples of such
documents for illustration purposes.
(82) In Resolution 1373 (2001) from the UN Security Council, it is set out that all States, to
prevent the movement of terrorists must have "effective border controls and controls on
issuance of identity papers and travel documents". In "the Bangkok Declaration" – issued
during the UN's 11th Congress on Crime Prevention and Criminal Justice – the following
is set out in para 27:
"We are conscious of the crucial importance of tackling document and identity fraud in
order to curb organized crime and terrorism. We seek to improve international
cooperation, including through technical assistance, to combat document and identity
fraud, in particular the fraudulent use of travel documents, through improved security
measures, and encourage the adoption of appropriate national legislation."
(83) An Action Plan from the European Commission of 8 December 2016 mentions "concrete
measures to improve the security of travel documents". In the Commission's press release,
the following is set out:
"Travel document security is an important factor in the fight against terrorism and
organised crime and contributes to improving border protection and migration
management …"
(84) One out of four key areas concerns "[r]egistration of identity". Here, the States are
requested to consider, among other things, "… how best to avoid issuing authentic
documents based on false identities". The Action Plan itself points out "the crucial
importance of secure travel and identity documents wherever it is necessary to establish
beyond doubt a person's identity …".
(85) In the ICAO's "Guide for Assessing Security of Handling and Issuance of Travel
Documents" from January 2010, it is stated in Part 1 regarding "best practices" that most
countries operate with three necessary conditions for issuing a travel document. The first
condition is the establishment of "… evidence of the applicant's identity, i.e. this is a real
identity and the applicant is in fact the claimed individual".
(86) In the joint document issued by the ICAO and the UNHCR in October 2013 –"Guide for
Issuing Machine Readable Convention Travel Documents for Refugees and Stateless
Persons" – which I have already addressed, a reference is made in the paragraph
concerning "[e]ntitlement process" on page 10 to refugees' right to travel documents
pursuant to article 28. It is stated that in order to determine eligibility for a machine
readable document, it is necessary for the national authorities to "verify an applicant's
identity". Hence, it may seem as if the issuers of such a document acknowledge that
machine readable travel documents, at least, are not to be issued unless the applicant's
identity has been established.
(87) There are a number of Norwegian reports etc. leaving much of the same impression as the
international documents I have mentioned. In Proposition 90 L (2015–2016) regarding
amendments in the Immigration Act, it is mentioned on page 150 that widespread use of
false identities is a "serious security threat".
(88) Finally, I will mention that in the Supreme Court judgment Rt-2006-1121, there are some
statements with a certain transfer value to the issues in the case at hand. The case
concerned sentencing of a convicted person who had let others use his passport. After
highlighting the importance of general deterrence in such cases, the following is stated in
para 14:
"In addition, leaving one's passport to others entail a serious risk. The passport can be
misused on one or more occasions, by one or more persons, with the consequence that
country borders may be crossed illegally and uncontrollably. Next, dangerous situations
may occur if there is doubt regarding persons' identity. Misuse of passports and lost
passports are an increasing problem for the authorities, and it is an increasingly
demanding task to prevent it. The punishability is thus not related to whether or not the
passport has been misused, or where or in which way it has happened, but to the
potential risk created".
(89) Against this background, I find that both internationally and nationally, false identification
documents are deemed to constitute a serious security issue. Significant efforts are made
to improve document security. If the Norwegian authorities were to issue travel
documents that are deemed most likely to show a false identity, this would be clearly
contrary to the work otherwise done in this respect, nationally and internationally.
(90) In my view, there is a genuine risk that the trust in Norwegian travel documents would be
undermined if travel documents were issued to persons whose identity has not been
substantiated. The parties have not documented reliable examples of any country issuing
travel documents, which are also regarded as identification papers, to persons whose
identity has not been established. It has been stated that in Sweden and Finland, travel
documents are also issued to persons whose identity has not been verified, but with a note
regarding this on the document. Whether or not such a document can be used as a travel
document has not been stated.
(91) In my view, the provisions on freedom of movement in the Norwegian Constitution article
106, in Protocol no. 4 of the European Convention of Human Rights article 2 or the UN
Covenant on Civil and Political Rights article 12 cannot be applicable for the case at
hand. The way I interpret article 28, I assume that it gives a more far-reaching right than
the provisions mentioned.
(92) Consequently, my conclusion is as follows: If it is more likely that the refugee is claiming
a false identity, it is in accordance with the Refugee Convention article 28 to refuse to
issue a travel document. Such doubt regarding identity constitutes a "compelling [reason]
of national security or public order" which makes it imperative to refuse to issue a travel
document.
(93) In my understanding, the court of appeal bases its conclusion on the idea that doubt
regarding the refugee's identity in the sense that it is more likely that the identity claimed
is false, is not in itself a "compelling reason" for rejection. According to my interpretation
of the Convention, this application of the law is wrong.
(94) However, the respondents have contended that the decisions denying them travel
documents are in any case invalid, as they have substantiated their identity. I will now
turn to this matter.
(95) The validity of the decisions in the respondents' cases
(96) First, I will highlight some of the general aspects that, in my view, must be emphasised in
the assessment whether an application for a travel document can be rejected because the
identity of the applicant has not been established.
(97) As emphasised by the High Commissioner for Refugees, among others, refugees do
normally not have travel documents. It may also be difficult for them to prove the identity
otherwise. In Proposition to the Odelsting no. 75 (2006–2007) page 51, it is set out that
even if the clear main rule is that immigrants applying for residence in Norway must
document their identity, it must nevertheless be accepted that in a number of cases, there
will be uncertainty attached to their identity. The individual assessment must be made
against this background, see also UDI's directive RS 2012-009, in particular page 4 and
page 8 et seq.
(98) Since issuing travel documents can only be refused for "compelling reasons of national
security or public order", it is clear that such refusal can only be maintained as long as the
hindrance is present. Even if there was reason to refuse issuance at the time of the first
application, it must be considered whether this is still the case in connection with later
applications and reversal assessments.
(99) Moreover, the Refugee Convention article 25 orders each Convention State to provide
necessary "administrative assistance" to refugees residing in the territory. I assume that
this also entails an obligation for the authorities to assist the refugee with establishing a
sufficiently secure identity, if that is practically possible.
(100) The decisions of 22 October 2014, where UNE following a notice of action refused
reversal for all three respondents, are the latest decisions passed in the case. I therefore
use these as a basis for my assessment of the decisions' validity.
(101) The decisions give an account of the relevant factual circumstances, to which no
objections have been made before the Supreme Court.
(102) According to the decisions from 2014, UNE finds that no new information has emerged
that removes the hindrance for issuing travel documents. UNE also accounts for which
examinations have been made, for instance of certain documents presented, and argues
why other documents have not been examined more closely.
(103) In the decisions, it is stated that it is possible to apply for a travel document for one single
travel. I add that it is also possible to apply for a travel document for travels to certain
countries. This is set out in the Immigration Regulation section 12-2 subsection 5 and
section 12-6 subsection 6 and is further addressed in UDI's directive RS 2012-009 page
29. None of the respondents have asked for a travel document with such restrictions.
(104) A
(105) A has claimed a total of five identities and lived in Greece for years under identities
different from the one he is now claiming. He has not presented any documents or
otherwise substantiated that the identity he stated last is the correct one.
(106) In my view, it is clear that his identity has not been substantiated.
(107) B
(108) B claimed to be H before Italian authorities and was granted a residence permit in Italy
under this identity effective 22 August 2007 until 21 August 2008. Both in Italy and in
Norway, he stated that his birthday was 17 February, but the birth year varies. In Norway,
he allegedly also stated a different date of birth at the police registration than at the
asylum interview.
(109) B's situation differs from that of the two other respondents, as he has only claimed two
different identities. As a starting point, it is difficult to say that one of the two identities is
truer than the other. I have no basis for reviewing the immigration authorities' opinion that
the documents he has presented from his home country have little credibility, and I leave
it open whether these documents can serve as proof at all.
(110) After two and a half months in Italy, B travelled to Norway, despite the fact that his
residence in Italy was still lawful. Thus, he has not stayed for a long period of time in a
another European country under an identity that is different from the one he claimed
before Norwegian authorities. He has lived in Norway for ten years, during which period
there have been no indications of him having used other identities. No information has
emerged of him having engaged in criminal activities or being prosecuted abroad. Nor
have other circumstances been brought to light indicating that he has been using a false
identity during the last ten years.
(111) In my view, in the assessment of whether B's identity had been substantiated at the time of
the last decision, one must consider the fact that he has used the other identity for a short
period of time compared to his long residence in Norway under the same identity. I find
that this time aspect in B's case is sufficient to establish, however weakly, that it is more
likely that the identity under which he is applying for a travel document is true. According
to government practice, a travel document is to be issued in such a situation.
(112) Consequently, I have concluded that UNE's decision as far as B concerns is invalid.
(113) C
(114) C has stated three different identities. He has resided in the Netherlands under the identity
I born in 1975 and in Germany with the identity J born in 1985. In Norway, he stated the
name he is using at present and a date of birth in 1977. He has not presented any
documents or otherwise substantiated that the last identity stated is the correct one.
(115) In my view, his identity has not been substantiated.
(116) Consequently, I have concluded that UNE's decision must be declared invalid as far as B
concerns. I assume that it is correct to declare both UNE's decision on the merits of 25
August 2011 and the refusal to carry out a reversal of 22 October 2014 as invalid.
(117) Otherwise, I have concluded that judgment must be given in favour of the state.
(118) Finally, I will emphasise that the case illustrates a serious and unsolved issue: A small
group of refugees with lawful residence in Norway, and who must be expected to stay
here indefinitely, lack access to important benefits and possibilities that the public in
general take for granted. In addition to the material disadvantages in everyday life, this
situation may easily create problems for these refugees' integration in the Norwegian
society. The problem is rooted in the uncertainty regarding their identity. This is not
solved by issuing a travel document where the identity is likely to be false. Ensuring that
this group of citizens in Norway have access to, at least, the most crucial benefits which
they currently lack is a task for the government.
(119) B has succeeded in his alternative submission as to why he should have a travel document
issued, and is entitled to compensation for costs before the Supreme Court as submitted in
his prayer for relief. In a joint statement of costs for the three respondents, a total of
NOK 225,000 including VAT is claimed. I assume that the work is distributed more or
less equally among the three respondents, and costs are awarded in the amount of
NOK 75,000.
(120) The state has not claimed legal costs.
(121) Considering my result, there is no basis for awarding costs to the interveners that have
claimed this.
(122) I vote for this
J U D G M E N T :
1. The Immigration Appeals Board's decisions of 25 August 2011 and 22 October
2014 rejecting B's application for a travel document for refugees are invalid.
2. Otherwise, judgment is given in favour of the state represented by the Immigration
Appeals Board.
3. The state represented by the Immigration Appeals Board will pay to B costs of
NOK 75,000 – seventyfivethousand within 2 – two – weeks from the service of
this judgment.
4. Otherwise, costs in the Supreme Court are not awarded.
(123) Justice Indreberg: I have concluded that the state's appeal must be dismissed also when it
comes to A and C.
(124) Like the court of appeal, I read the Refugee Convention article 28 so that it does not
exclude doubt regarding identity as a basis for denying a refugee a travel document.
However, since the Convention only allows exemptions from the government's obligation
to issue a travel document when it is imperative out of concern for the state's security or
public order ("ordre public"), an individual assessment must be made also in the event of
doubt regarding identity to determine whether issuing a travel document represents such a
risk that there are compelling reasons for refusing.
(125) The state has asserted that when the identity has not been verified, it is not possible to
make an individual assessment. For instance, one does not know whether the refugee has
a criminal background or is part of a terrorist network under a different identity.
(126) This may sometimes be the situation. For that reason specifically, doubt regarding identity
cannot be excluded as a basis for refusal. But I have problems understanding that it will
always be the case that such doubt involves a genuine risk that the person in question
represents a risk of the scope the Convention refers to if she or he has a travel document
issued. It is true that the refugees who have been denied a travel document have acted
with at least two different identities after arriving in Europe. Such a conduct makes it hard
to practice immigration control, and it is not wanted. However, I find that one cannot
automatically conclude that the person lacks credibility and certainly not that the person
constitutes a risk of the scope the Convention refers to. A broader perspective must be
applied.
(127) The state has further contended that the trust in Norwegian travel documents will be at
risk if travel documents are issued to refugees whose identity cannot be substantiated by
more than 50 percent. Based on the presentation of evidence, the court of appeal did not
deem this to be the case, stressing among other things that it concerns a small number of
persons. I will also add that in the 1990s, the practice was more liberal, without
indications of a reduced trust by foreign authorities in Norwegian travel documents. In my
view, it is difficult to find a legal basis in the strict wording of the Convention for not
making a more thorough assessment of the risk of issuing travel documents while
referring to assumptions regarding such general effects.
(128) The justice delivering the leading opinion mentions that since the travel document is a
substitute for a passport, it is reasonable as a starting point to demand that the applicant
proves his or her identity, see the Passport Act section 3. I believe one should be careful
about doing that. International conventions are autonomous. The practice with issuing
travel documents was implemented due to the refugees' unique situation. They are not
only prevented from applying for a passport in their home country, but they often lack
documents, and documents with the necessary verifiability may be hard to procure.
(129) In the Immigration Appeals Board's decisions against the respondents, no individual
assessment has been made as to whether there are compelling reasons for denying them
travel documents. The decisions are thus based on an interpretation of the law that I deem
contrary to the Refugee Convention article 28, and they are thus invalid.
(130) Justice Noer: I agree with the justice delivering the leading
opinion, Justice Kallerud, in all material
aspects and with his conclusion.
(131) Justice Bergh: Likewise.
(132) Justice Tønder: Likewise.
(133) Following the voting, the Supreme Court gave this judgment:
J U D G M E N T :
1. The Immigration Appeals Board's decisions of 25 August 2011 and 22 October
2014 rejecting B's application for a travel document for refugees are invalid.
2. Otherwise, judgment is given in favour of the state represented by the Immigration
Appeals Board.
3. The state represented by the Immigration Appeals Board will pay to B costs of
NOK 75,000 – seventyfivethousand within 2 – two – weeks from the service of
this judgment.
4. Otherwise, costs in the Supreme Court are not awarded.