The applicant, A, is a Syrian national who fled Syria during the civil war in 2012. She travelled through several countries before arriving in Denmark in September 2014, where she applied for international protection and was granted a residence permit in February 2015. The residence permit was revoked in November 2021 as the Danish authorities determined that she no longer had the grounds for a residence permit.

The applicant filed an appeal with the Refugee Appeals Board, but the board affirmed the decision in May 2022. The Danish authorities determined that the conditions in the applicant's village and province no longer generally warrant protection, because they are not of such nature that she would be at risk of being subjected to abuse in violation of Article 3 of the European Convention on Human Rights (ECHR). The areas were deemed to be sufficiently safe and residence permits were no longer being provided on a general basis.

The applicant arrived in Norway in June 2022 and applied for international protection. Norway sent a takeback request to Denmark to process the application in accordance with the Dublin III Regulation, and Denmark accepted the request. In December 2022, the Norwegian Directorate of Immigration rejected the application for international protection, concluding that the Danish authorities were responsible for processing the asylum application according to the Dublin III Regulation. The applicant appealed the decision to the Immigration Appeals Board (UNE), but the UNE concluded that Denmark was responsible for processing the application for international protection and therefore did not deal with the asylum application on merit.

The applicant filed an appeal with the Oslo District Court in March 2024, which upheld it. The court ruled that the UNE's decision was invalid as it determined that the UNE had a duty to consider the case on its merit. The parties agreed that under the Dublin III Regulation, Denmark was responsible for processing the application for international protection. However, the parties disagreed on whether the Norwegian authorities in the current case had to assess the application for international protection on its merits because Denmark had a different opinion than Norway on the applicant's need for protection. The difference in policy is that the Norwegian authorities provide general protection against return to all Syrian asylum applicants, whereas Denmark believes that the conditions in the applicant's province in Syria no longer provide a general claim to protection against return to Syria under Article 3 of the ECHR, and thus the applicant would be required to leave Denmark.

The case raised questions about the relationship between the Dublin III Regulation and Section 73 of the Immigration Act, the absolute protection against refoulement, and in particular, that a foreigner may not be sent to an area where he or she would be at risk of persecution, or subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment upon return to the country of origin, as outlined in Section 28, and Article 3 of the ECHR. The parties agreed that the applicant would be in such a situation in Syria. In addition, the court noted a foreigner cannot be sent to area where the person concerned would not be “safe” against being sent on to such as area as mentioned in Section 28, or whether there are “substantial grounds” or “real risk” of violation of Article 3 of the ECHR, according to the practice of the ECtHR.

The court reference to the CJEU judgments DG (C‑254/21), XXX.XX (C‑297/21), PP (C‑315/21), GE (C‑328/21) v CZA (C‑228/21), Ministero dell'Interno, Dipartimento per le libertà civili e l'immigrazione – Unità Dublino (30 November 2023) and X v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) (29 February 2024) for the interplay between the Dublin regulation and the EU Charter, especially Article 4 of the EU Charter. However, the court considered that the Norwegian law can offer greater protection than the Dublin Regulations and that the CJEU has not clarified this. Specifically, the court considered that the Norwegian rules can provide further protection against return more than the minimum protection under the Dublin III Regulation. The court pointed out as well that Article 17 (1) of the Dublin III Regulation expressly Member States may choose to process an asylum application even if it is not their responsibility according to the criteria in the regulation. 

The court delved into whether the applicant would be “safe” from being returned to Syria if he was transferred to Denmark, whether there was “clear evidence” that the applicant would be returned to Syria, or if there was “real doubt” that she would be protected from being sent to Syria. The court acknowledged that Denmark is not currently returning applicants to Syria, however, various circumstances demonstrate that the applicant is not “safe” from being returned to Syria if transferred to Denmark. However the court found that Denmark issued a deportation order against the applicant and she is required to leave; if she does not leave, she faces an entry ban in Denmark and the Schengen area. The court noted that according to the ruling of the Refugee Appeals Board in Denmark concerning the applicant, there are foreign policy reasons for Denmark not to forcibly return applicants to Syria "for the time being". However, on the last page of the decision, the Board added that Danish authorities have a legal basis for forced deportations to Syria if the applicant does not "depart voluntarily". As a result, the court concluded that the Danish authorities will begin forced returns when it is feasible to do so with regards to applicants from Syria. The applicant therefore has no protection against forced returns from Denmark.

The Oslo District Court determined that these circumstances demonstrate that if the applicant is transferred to Denmark, there is “clear evidence” that the applicant will be returned to Syria, and there is a “real doubt” that the applicant will be protected from being returned to Syria. The applicant will then not be “safe” against being returned to Syria, according to the Section 83 third paragraph of the Immigration Act. Moreover, if the Norwegian authorities believe that returning the applicant to Syria is in violation of the Section 28 of the Immigration Act and Article 3 of the ECHR, then the applicant is prohibited from being transferred to Denmark. The Norwegian authorities could therefore not refute substantive protection of the case according to Section 32 third paragraph of the Immigration Act. The Oslo District Court thus concluded that the UNE's decision of May 2024 not to reverse its decision of January 2024 is invalid, and the case should have been dealt with on its merits.