Apr 6, 2025
The Refugee Convention and asylum rules
Historical Background of International Refugee Protection
Refugees have existed at all times. Throughout history, people have been forced to flee due to wars, conflicts, oppression, and violence. Many have sought protection in foreign states.
As early as ancient times, refugees could obtain asylum. The first records of protection are several thousand years old. Around 1500 BC, a king for 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 affected by large refugee flows as a result of 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 to draft a proposal. The Refugee Convention was signed in Geneva on July 28, 1951, and came 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.
A 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 1967 Protocol Relating to the Status of Refugees.
Right to Asylum
The Rules of Asylum
The Refugee Convention grants protection against expulsion to persecution in Article 33, but not asylum. There are no rules in the Convention or in other conventions that grant the right to asylum. Norway and other member states are obliged to provide refugees with protection against expulsion to persecution but not to grant asylum. The rules of asylum are stipulated in the national legislation, in Norway through the Immigration Act § 28.
What Does Asylum Mean?
The term "asylum" originates from the Greek word "asylon," meaning sanctuary or refuge. In practice, asylum means that you receive a residence permit in Norway, typically 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 Receive 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 is entitled to a residence permit (asylum)."
The Refugee Concept
Definition of a 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 special social group, or political opinion and is unable to seek protection in the home country, or b) without falling under letter a still faces a real risk of being subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment upon return to the 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 not, it will be considered whether the individual can receive a residence permit on humanitarian grounds under § 38. If the applicant receives neither asylum under § 28 nor residence under § 38, they will typically be denied.
Conditions for Refugee Status
The general refugee definition in § 28 first paragraph letter a includes five main conditions:
Outside the home country (in Norway)
Well-founded fear
Persecution
Due to race, religion, nationality, membership in a special social group, or political opinion
Lack of protection in the home country
The conditions are cumulative - all must be fulfilled 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 distinction between refugees and internally displaced persons. In 2016, approximately 40 million people were internally displaced within their own country. They are not protected by the Refugee Convention and therefore have less 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 the home country. This involves both an assessment of evidence and a risk evaluation.
In the assessment of evidence, the facts of the case are clarified. The applicant's explanation should be accepted if it is "somewhat probable," provided that the applicant has contributed to enlightening the case as far as is reasonable and possible.
In risk assessment, the likelihood of persecution upon return is estimated. There is no requirement for a preponderance of probability - the applicant can 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 acts that either: a) individually or due to repetition constitute a severe violation of fundamental human rights, or b) involve several different measures that together are so serious that they affect a person in a way that is comparable to the situation described in letter a.
Clear examples of persecution are murder, torture, abuse, and prolonged deprivation of liberty. In some cases, severe forms of harassment and discrimination may also constitute persecution.
Reasons for Persecution
The persecution must be related to the applicant's race (ethnicity, descent, skin color), religion, nationality, membership in a special social group, or political opinion.
A special social group is defined in § 30 first paragraph letter d as "a group of people who have a common characteristic beyond the danger of being persecuted and who are perceived as a group by society." The common characteristic may be inherent or otherwise immutable or may consist of a manner of behaving or conviction so fundamental to identity that a person cannot be expected to renounce it.
Lack of Protection in the Home Country
The last condition is that the applicant is unable or, due to fear, unwilling to seek protection from the 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 grants entitlement 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 receive protection from the authorities in the home country.
Specifically Regarding Criminal Prosecution
Ordinary criminal prosecution does not entitle one 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 individual is punished for breaking the law, not due to race, religion, nationality, membership in a special social group, or political opinion.
There are two exceptions to this principle:
Unjust punishment, e.g., based on false accusations due to the applicant's political opinion
Disproportionately severe penalty due to race, religion, etc.
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 fulfilled in two ways: either the persecution is due to a convention reason or the lack of protection from the authorities is due to a convention reason.
