The case was heard in a plenary session with 19 justices present. It concerned an asylum case involving internal relocation for a family from Afghanistan.
The Supreme Court found in favour of UNE, and a majority of 13 out of 19 justices found UNE's decision to be valid.
The family from Afghanistan received a final rejection of their application for protection from UNE in 2013. The family was from a province of Afghanistan that UNE considered unsafe. However, UNE was of the opinion that the family could safely settle in Kabul as internally displaced persons. The decision was found invalid by Oslo District Court and Borgarting Court of Appeal.
Assessment of ‘the child’s best interests’
The Court of Appeal was of the opinion that UNE must emphasise the child's situation in Norway when considering whether internal relocation in the home country is unreasonable (the Immigration Act Section 28 fifth paragraph). UNE, on the other hand, was of the opinion that asylum assessments shall only emphasise the child’s return situation and the conditions in the home country. Conditions in Norway are emphasised when assessing residence on humanitarian grounds (the Immigration Act Section 38). This was the main reason why UNE appealed the case to the Supreme Court. The Supreme Court found wholly in favour of UNE on this point.
It was the Supreme Court’s unanimous opinion that the child's situation in Norway and in Afghanistan shall not be compared when considering internal flight. Only the return situation and the situation at the place of internal relocation shall be assessed. This opinion was based on a review of the text of the Act and the preparatory works, general state practice and Norway's international obligations. UNE shall carry out a child-sensitive assessment of the return situation, and the fact that the applicant is a child shall be emphasised. It will therefore take less for internal flight to be considered unreasonable for a child than for adults. This was also in line with UNE’s view of the matter.
Other matters of principle
The case also raised other matters of principle. The Court found in favour of UNE on all counts, except for on the question of the courts of law’s right of judicial review. A majority of ten justices were of the opinion that the courts of law have full right of judicial review when assessing whether internal flight is unreasonable, but that the courts should show a certain restraint.
A majority of twelve justices found the grounds given for denying residence on humanitarian grounds adequate. A minority of six justices were of the opinion that the decision was invalid due to procedural error, because one of the children should have been permitted to appear in person and make a statement during the Appeals Board hearing.