The applicant is a woman from Nigeria, who was rejected international protection and residence perm it on humanitarian grounds. She gave birth in Norway to a daughter and at the age of kindergarten her daughter was granted asylum because UDI found a risk of female genital mutilation upon return to Nigeria. The applicant is the only carer of her daughter in Norway and applied for family reunification. The UNE, sitting in the Grand Board assessed whether the applicant shall be granted asylum based on Section 38 of the Immigration Act or she has to be referred to apply for family reunification with her daughter.

The majority in the Grand Board held that should be granted an ordinary residence permit pursuant to Section 38, on asylum grounds and not on family reunification procedure. The Board considered that family reunification procedures are usually meant for a person who is abroad and seeks family immigration with a person living in Norway, typically spouses or other family members, as regulated in Chapter 6 of the Immigration Act. It also noted some negative consequences for referring applicants to apply for family reunification and considered that a referral to apply for family reunification risk to entail an unnecessary use of time and resources in the UDI, given that the applicants in such cases will not be returned to his or her home country anyway, but will eventually receive a permit, either pursuant to section 38 or section 43.

The Grand Board also made a detailed comparative analysis of the two procedures, asylum provided by Section 38 and family reunification provided by Section 43, findings various inconveniences of the family reunification procedure.

With regard to the best interest of the child, the Board considered that in view of t, the applicant must be granted a residence permit on asylum grounds, as per section 38 of the Immigration Act rather than being requested to apply for family reunification with her daughter.

It reiterated that the child's best interests shall be a fundamental consideration in matters concerning children as it is generally stated in the relevant convention provision and in national legislation, see e.g. Article 3 of the Convention on the Rights of the Child, Section 104 of the Constitution and Section 38, third paragraph, of the Immigration Act.