Dear participants in this workshop,

It is a pleasure for me to participate in this workshop and to share some information concerning future new provisions regarding the refugee definition in the Norwegian Immigration Regulations.

First, I would like to thank the organizers for this important initiative, in a time when most discussions on refugee issues concern the strengthening of the asylum procedures and the possible abuse of it.

In the beginning of this month, the Parliament, or the Storting, passed a new provision in the Norwegian Immigration Act section 16, which provides the Ministry of Local Government and Regional Development with the authority to issue regulations on who is a refugee.

When the new provision was debated in the Parliament a majority of MPs held that the criteria for being determined to be a refugee should rather be included in the Immigration Act than in the Regulations. They agreed, however, that the criteria could be placed in the Regulations now while awaiting the outcome of the law committee, which was established by the government in December 2001 and is to make proposals for a new immigration legislation by the end of 2003.

The Immigration Act incorporates the refugee definition of the 1951 Convention Relating to the Status of Refugees and its Protocol and states that any refugee who is in the realm or at the Norwegian border has, on application, the right to asylum in Norway. There are some exemptions to this right, which I will omit in this presentation.

Until the Ministry of Justice issued guidelines on refugee criteria in January 1998, there were no written guidelines on the interpretation of the refugee definition. These guidelines states, among other things, that persecution by third parties can be considered to fall within the 1951 Convention.

The Immigration Act is a higher source of law than the Immigration Regulations. This means that the new provisions in the Regulations cannot extend or limit the refugee definition of the 1951 Convention, only supplement it.

The Ministry is now in the middle of the drafting process, and aims, after a consultative process, at issuing a new Regulations early next year. The aim is to draw up specific guidelines on how the refugee definition should be interpreted in Norwegian law. This will be the first time Norwegian legislation specifically defines core elements in the refugee definition, such as “well founded fear”, “persecution”, “for reasons of” and the five enumerated grounds.

In the consultative process prior to the issuing of the Regulation the Ministry will present some proposals. We do not envisage to propose to extend or limit the existing Norwegian interpretation of the refugee definition. The aim is rather to codify the existing practise since 1998. This may sound as an easy task. We cannot exclude the possibility of inconsistencies regarding some important issues, for instance regarding the required standard of proof.

This being said, we are considering to extend the interpretation on one issue, that is in relation to refugees sur place.

We consider including the wording of the refugee definition of the 1951 Convention in the Regulations, and we also consider whether the Regulations should have a reference to the UNHCR handbook and the international development of refugee law and Human Rights instruments as prominent sources of law.

The term “persecution” will be covered. We define persecution as “the risk of serious human right violations or other serious harm and lack of effective state protection.

Furthermore, we will propose to give some guidance in the Regulations regarding how the five enumerated grounds in the refugee definition should be interpreted.

The first ground mentioned in the Convention is “race”. This is a notion, which we wishes to avoid because there is no scientific basis for dividing humanity into different “races”, and the concept has negative connotations. So far, we have not decided whether we will propose to substitute “race” with another term, and if so which term we should use. The law committee who submitted a report proposing an Act against ethnic discrimination to the Minister of Local Government & Regional Development, Ms Erna Solberg, last Friday, uses the term ethnicity, and explains that this term is closely related to culture and identity. The commission said, and I quote:

“it is not possible to establish the precise scope of the term, partly because ethnicity contains a subjective element and partly because it allows for changes over a period of time. The concept of ethnicity is broad and well suited for use in connection with legislation intended to protect against ethnic discrimination.”

Another ground, membership in a particular social group, has so far not been elaborated in depth in Norwegian practise. There is precedence for the inclusion of homosexuals and women who transgress social norms in a society. The Ministry however would like to elaborate this convention ground further, and in this work we have particularly found good guidance in papers from the UNHCR, the last one issued in May this year.

One specific aim in this process is to ensure that victims of gender-based persecution are given protection in Norway according to the 1951 Convention. We would like to update the Norwegian legislation in accordance with recommendations from UNHCR regarding a gender sensitive application of the Convention.

The 1998 guidelines on refugee criteria, which I mentioned earlier, also state that gender-based persecution may constitute persecution in the meaning of the 1951 Convention. Some refugees have been given asylum in Norway because of fear of gender-based persecution according to these guidelines. The Ministry want, however, to strengthen the protection for persecuted women in the legislation.

The Ministry fully agrees with the view of UNHCR that although gender is not specifically enumerated as one of the grounds for establishing Convention refugee status, the definition of Convention refugee may properly be interpreted as providing protection for women who demonstrate a well-founded fear of gender-related persecution by reason of any, or a combination of, the enumerated grounds. We share the view that this means that it should be accepted that gender could influence or dictate the type of persecution or harm suffered and the reason for this treatment. Further, it means that gender may inform the assessment under race, religion, nationality, social group or political opinion. The enumerated grounds should be properly interpreted to encompass gender-related persecution claims, and include the experiences of women as asylum seekers.

It must, however, be kept in mind that if meaningful national protection is available to the claimant, a fear of persecution cannot be said to exist. In order to constitute persecution, serious harm must be at the hands of the State or a force that the State cannot or will not control. As mentioned, Norwegian practise considers persecution by third parties to fall within the Geneva Convention.

On these and other issues the Ministry would like to elicit the opinion of UNHCR, non-governmental organisations, refugee law experts and others. Many of you will receive a formal hearing letter later this year. I look forward to the other presentations and discussions later today.