The Refugee Convention and reopening
The Commission has reopened several cases where refugees have been convicted for using false travel documents or giving false evidence to Norwegian authorities upon entry into state territory. The refugees may in these cases have been wrongfully convicted because the authorities have not been sufficiently conscious of article 31 (1) of the Refugee Convention of 1951.
Article 31 (1) provides that, where certain conditions are met, the states shall not impose penalties against refugees for their illegal entry provided that the refugees present themselves “without delay” to the authorities and show good cause for their illegal entry or presence.
The rule covers refugees arriving directly in Norway and immediately presenting themselves to the authorities. In practice, article 31 (1) applies to persons who apply for asylum on arrival, make a statement regarding the false documents and show good cause for the illegal entry.
The Norwegian Supreme Court has clarified the meaning of the term “without delay” as used in the convention, see Rt. 2014 page 645. The Court pointed out that the term “straks” used in the Norwegian translation is unfit because it has a more limited scope than the term “without delay”. The Court also states that the condition is met when an application for asylum is made before the entry control is completed. Moreover, it is stated in paragraph 14 of the judgment that whether the condition “without delay” is met in each case, must be assessed on an individual basis.
Simply put, it is clear from the decision that article 31 (1) of the Refugee Convention should be read as if it contained the term “uten ugrunnet opphold” (“without delay”) rather than “straks”. In the individual assessment, both the objective situation the refugees have been in, and their subjective perception of the situation, based on their background and qualifications, must be considered.
An application for reopening the case may in such circumstances be based on a reference to the prohibition in article 31 (1) of the Refugee Convention. Such cases are more likely to be reopened where the rule in article 31 (1) has not been considered by the courts.
Reopening cannot be expected where the person convicted has used false documentation or given a false statement without seeking asylum, for example if they entered Norway to apply for a work permit or family reunification. Other examples are situations where asylum seekers have continued to use the false documentation after entering the country, and persons who have taken too long reporting to the authorities.
If the Commission finds that one of the statutory conditions of article 31 (1) is fulfilled, this may be sufficient grounds for reopening the case
Examples of reopened cases:
GK - 2018-186
GK - 2015-124
GK - 2015-123
GK - 2014-185
GK - 2014-156
Examples of rejected cases:
GK - 2014-106
GK - 2014-144