Historical Background for International Refugee Protection
Refugees have existed throughout history. Throughout time, people have been forced to flee due to wars, conflicts, oppression, and violence. Many have sought protection in foreign states.
Even in ancient times, refugees could receive asylum. The first accounts of protection are thousands of years old. Around 1500 BC, a king of the Hittite Empire in today's Syria and Turkey declared that refugees should not be sent back. This principle still exists in modern refugee law.
International protection of refugees first emerged in the 1920s. Europe was characterized by large refugee flows resulting from World War I, the Balkan Wars, the Armenian genocide, the Russian Revolution, and the dissolution of Austria-Hungary and the Ottoman Empire. Millions of people were forced to flee. The League of Nations appointed Fridtjof Nansen as the first High Commissioner for Refugees in 1921.
After World War II, the need for a new refugee convention was recognized. In 1949, the UN appointed an expert committee that drafted a proposal. The Refugee Convention was signed in Geneva on July 28, 1951, and entered into force on April 22, 1954. The Convention has a general definition of "refugee" in Article 1 A (2), which today constitutes the universal refugee definition.
One problem with the Refugee Convention was that the general refugee definition had a temporal and geographical limitation. The Convention only covered persons who became refugees due to events before 1951, and states could choose to limit protection to refugees from Europe. These limitations were removed with the Protocol Relating to the Status of Refugees in 1967.
Right to Asylum
The Rules on Asylum
The Refugee Convention provides the right to protection against expulsion to persecution in Article 33, but not asylum. There are no rules in the Convention or in other conventions that grant a right to asylum. Norway and other member states are obligated to provide refugees with protection against expulsion to persecution, but not to grant asylum. The rules on asylum are set out in states' own legislation, in Norway through the Immigration Act § 28.
What Does Asylum Mean?
The term "asylum" comes from the Greek word "asylon" meaning sanctuary or refuge. In practice, asylum means that you get a residence permit in Norway, normally for three years. You can work and reside throughout the country and travel in and out of Norway. The permit can be renewed and form the basis for permanent residence and family immigration.
The Right to Apply for Asylum
Everyone has the right to leave their home country and apply for asylum in another country. This is a fundamental human right enshrined in the UN Universal Declaration of Human Rights of 1948, Article 14. All foreigners have the right to apply for asylum in Norway. The only condition is that you are in Norway or at the Norwegian border.
Right to Be Granted Asylum
To have the right to asylum, you must be recognized as a refugee. The Immigration Act § 28 second paragraph states that "a foreigner who is recognized as a refugee under the first paragraph has the right to a residence permit (asylum)."
The Refugee Concept
Definition of Refugee
The Immigration Act § 28 first paragraph defines a refugee as a foreigner who: a) has a well-founded fear of persecution due to ethnicity, descent, skin color, religion, nationality, membership in a particular social group, or political opinion, and is unable to obtain protection in their home country, or b) without falling under letter a nevertheless faces a real risk of being subjected to the death penalty, torture, or other inhumane or degrading treatment or punishment upon return to their home country.
Two Central Grounds for Residence
In asylum cases, it is first assessed whether the applicant is a refugee and has the right to asylum under § 28. If the applicant is not, the question becomes whether they can be granted residence on humanitarian grounds under § 38. If the applicant receives neither asylum under § 28 nor residence under § 38, they will normally be rejected.
The Conditions for Refugee Status
The general refugee definition in § 28 first paragraph letter a contains five basic conditions:
Outside the home country (in Norway)
Well-founded fear
Persecution
Due to race, religion, nationality, membership in a particular social group, or political opinion
Lack of protection in the home country
The conditions are cumulative - all must be met to be recognized as a refugee.
Outside the Home Country
To be considered a refugee, the applicant must have left their home country. This is the most important difference between refugees and internally displaced persons. In 2016, approximately 40 million people were internally displaced in their own countries. They are not protected by the Refugee Convention and therefore have weaker protection than refugees.
Well-founded Fear
To be recognized as a refugee, the applicant must have a "well-founded fear" of persecution upon return to their home country. This involves both an evidence assessment and a risk assessment.
In the evidence assessment, the factual circumstances of the case are clarified. The applicant's explanation shall be accepted if it is "reasonably probable," provided that the applicant has contributed to informing the case as far as reasonable and possible.
In the risk assessment, the probability of persecution upon return is estimated. There is no requirement of preponderance of evidence - the applicant may have a well-founded fear even if the risk of persecution is significantly lower than 50%. At the same time, the risk must be real; a very small or theoretical possibility is not sufficient.
Persecution
Persecution is defined in the Immigration Act § 29 as actions that either: a) individually or because of repetition constitute a serious violation of fundamental human rights, or b) constitute several different measures that together are so serious that they affect a person in a way comparable to the situation described in letter a.
Clear examples of persecution are murder, torture, abuse, and long-term deprivation of liberty. In some cases, serious forms of harassment and discrimination may also constitute persecution.
Grounds for Persecution
The persecution must be related to the applicant's race (ethnicity, descent, skin color), religion, nationality, membership in a particular social group, or political opinion.
A particular social group is defined in § 30 first paragraph letter d as "a group of people who have a common characteristic beyond the fear of being persecuted, and who are perceived as a group by society." The common characteristic may be inherent or otherwise unchangeable, or constitutes a way of being or belief that is so fundamental to identity that a person cannot be expected to give it up.
Lack of Protection in the Home Country
The final condition is that the applicant is unable, or due to fear is unwilling, to avail themselves of the protection of their home country. This applies regardless of whether the persecutor is the state itself or non-state actors.
Persecution from Non-state Actors
Persecution from private individuals or independent groups also gives the right to refugee status. This is undisputed in Norwegian and international refugee law. The applicant may be persecuted by a guerrilla group, militia, criminal gang, neighbor, spouse, brother, or unknown person.
If individuals or groups are behind the persecution, the question becomes whether the applicant can get protection from the authorities in their home country.
Specifically About Criminal Prosecution
Ordinary criminal prosecution does not give the right to refugee status. A person who has committed a crime must serve their sentence without being able to claim refugee status. This is because the person is punished for breaking the law, not because of race, religion, nationality, membership in a particular social group, or political opinion.
There are two exceptions to this principle:
Unjustified punishment, e.g., based on false accusations due to the applicant's political opinion
Disproportionately severe punishment due to race, religion, etc.
Causal Connection Between Persecution and Grounds for Persecution
To be recognized as a refugee, there must be a causal connection between the persecution and one of the grounds for persecution. This requirement can be met in two ways: either by the persecution being due to a convention ground or by the lack of protection from the authorities being due to a convention ground.
