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12/12/2019
NO: Supreme Court rules on evidence requirement in age assesment

ECLI
Input Provided By
EUAA Asylum Report
Source
LOVDATA
Other Source/Information:
Referral to the CJEU
No
Original Documents
Type
Judgment
Relevant Legislative Provisions
National law only (in case there is no reference to EU law/ECHR);
Reference
Norway, Supreme Court [Noregs Høgsterett], A., B., C., D. v The Immigration Appeals Board, Dom HR-2019-2344-A, 12 December 2019. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=920
Case history
Related cases:
Abstract

The case concerns the validity of the Immigration Board's decision not to grant asylum. The central question is what evidence requirement should be used in determining whether an asylum seeker is over or under 18 years of age.

More analytically, five Afghan boys had applied for protection (asylum) in Norway, cf. Section 28 of the Immigration Act, and stated that they were 15-16 years old. After age assessments, which also included a medical age examination, the immigration authorities considered all of them to be older than 18. The applications were rejected.

The Supreme Court found, like the Court of Appeal, that the general requirement of preponderance of evidence in civil cases,  which is satisfied if there is a greater than fifty percent chance that the alleged fact is credible, must be applied in the assessment of whether the applicants were younger or older than 18 - not a reduced evidence requirement. Neither the Immigration Act nor the preparatory works suggested any other evidence requirement. The application of a reduced evidence requirement could also not be derived from Article 104 of the Norwegian Constitution, Article 3 of the Convention on the Rights of the Child, or of the General Comments of the UN Committee on the Rights of the Child. There was no reason to invoke a non-statutory exception from the general evidence requirement, not even when the assessment was made in a child-sensitive perspective. The personal consequences for the applicants were considered against the risk of abuse, however they were not sufficient enough to depart from the general preponderance of evidence principle. It was also pointed out that it concerned a thoroughly regulated legal area that had been subject to difficult political considerations, and where provisions have been laid down relatively recently, implying increased protection of minor asylum seekers. It was also essential that all applicants are treated as children until the application for residence has been resolved.

The Court rules in favor of the State, represented by the Immigration Appeals Board. 

Country of Decision
Norway
Court Name
NO: Supreme Court [Noregs Høgsterett]
Case Number
Dom HR-2019-2344-A
Date of Decision
12/12/2019
Country of Origin
Keywords
Afghanistan
Age assessment
Assessment of Application
Unaccompanied minors
Vulnerable Group