This research report presents some of the intermediate research results of the VULNER project, based on the first phase of the project, which consisted of mapping out the vulnerability assessment mechanisms developed by state authorities in Norway, including how they are implemented on the ground through the practices of the public servants in charge. The following research questions are addressed: What do the relevant domestic legislation, case-law, policy documents, and administrative guidelines reveal about how “vulnerabilities” are being assessed and addressed in the countries under study? Do the relevant state and/or aid agencies have a legal duty to assess migrants’ vulnerabilities, and if yes, using which procedures, when and how? Following which legal and bureaucratic criteria? How do decision-makers (street-level bureaucrats) understand and perceive the ‘vulnerabilities’ of the migrants they meet on a daily basis? How do they address these ‘vulnerabilities’ through their everyday practices? What is their stance on existing legal requirements towards ‘vulnerable’ migrants? Which loopholes do they identify? To that end, the objective of the legal enquiry was to analyse and reflect upon how ‘vulnerability’ is being developed as a legal and bureaucratic concept in the Norwegian regulations. Legal sources include national laws and regulations related to immigration and welfare (health, child welfare, and social security), as well as more than a hundred administrative guidelines. The main policy documents included in the analysis consist of white papers, resolution proposals, and written political interventions.publishedVersio

Lidén, Hilde

Paasche, Erlend

Schultz, Jessica

Wessmann, Helene

English

Institutt for samfunnsforskning - Vitenarkiv

Vulnerable Protection Seekers in Norway: Regulations, Practices, and Challenges

EXECUTIVE SUMMARY

This research report has been established as part of the EU Horizon 2020 VULNER project, which aims to contribute to a better understanding of the experiences of ‘vulnerability’ as lived by migrants applying for a protection status (such as the refugee status and other complementary forms of humanitarian protection, including the one awarded to victims of human trafficking), and to critically assess the potentials and pitfalls of using ‘vulnerability’ as a legal and policy standard to guide the development
and implementation of migration policies at EU and global level.

The VULNER project starts from the common observation, widely documented in the scientific literature, that the requirement to address the specific needs of ‘vulnerable’ migrants, including asylum seekers, victims of human trafficking and unaccompanied minors, is flooding the legal and policy discourse on asylum and migration at EU and global level (as illustrated by the UN Global Compact for Migration and its objective to ‘reduce vulnerabilities’ in migration, or the current focus at EU level on resettlement
programmes for vulnerable refugees namely).

Yet, if not based on scientific data and analyses that provide a clear and non-stereotyped understanding of the vulnerabilities that are lived and experienced by migrants, such policy objectives risk failing to address vulnerabilities, exacerbating existing vulnerabilities, or even producing new ones. The overall objective of the VULNER project is to produce knowledge that will assist States in identifying suitable strategies to assess the ‘vulnerabilities’ of migrants and to address them.

This research report presents some of the intermediary research results of the VULNER project, based on the first phase of the project which consisted in mapping the vulnerability assessment mechanisms as developed by state authorities in Norway, including how they are concretely implemented on the ground through the practices of the public servants in charge. The objective was to address the following research questions: How is the vulnerability of migrants defined in the relevant legislation, case law, policy documents, and administrative guidelines at national, regional, and international levels? Is there a duty to assess vulnerability, and how? What are the legal consequences of this? How do decision-makers (street-level bureaucrats) understand the vulnerability of migrants? How do they address them through their everyday practices? The approach followed was an inductive one, which aimed to start from existing state approaches towards ‘vulnerability’ as a legal and policy concept.

This first phase of the project is being followed with a second one, during which ethnographic fieldwork will be conducted among informal and state-run migrant and refugee settlements, with the view to reach a more profound understanding of their experiences of vulnerability. The objective is to document and reflect on how these experiences are shaped, and perhaps even produced, by the legal frameworks and state practices; how refugees and migrants adapt their behaviour to fit within existing vulnerability
categories; and what coping and resilience strategies they develop.

The sources and data collected for the report
In Norway, the most common way to obtain a residence permit is by applying for asylum upon arrival to Norway and being recognized as a refugee or receiving a permit to stay on humanitarian grounds. An alternative is to arrive through a resettlement program. Norway grants residency to a certain number of resettled refugees each year. The number is politically determined. Refugees cleared for resettlement in Norway are settled directly into a municipality upon arrival.

The objective of the legal enquiry was to analyse and reflect upon how ‘vulnerability’ is being developed as a legal and bureaucratic concept in the Norwegian regulations. Legal sources include national laws and regulations related to immigration and welfare (health, child welfare, and social security), as well as more than hundred administrative guidelines. The main policy documents included in the analysis consist of white papers, resolution proposals, and written political interventions in debates concerning reception conditions and certain groups of refugees.

The empirical research methods were conducted to complement and deepen the legal analysis. The aim of this part of the study was to document and analyse how the ‘vulnerabilities’ of the protection seekers are understood and addressed by the relevant decision-makers in their everyday practices. The recruitment of participants (36 persons) consisted of representatives of the Ministry of Justice and Social Security, street-level bureaucrats in the Directorate of Immigration (UDI), judges on the Appeal Board (UNE), the management in reception centres, representatives for the welfare system, experts on vulnerable groups
(unaccompanied minors/victims of torture), and legal representatives for unaccompanied minors.

Key findings
In Norway, human rights discourse is the normative center of asylum law and policies. The concept of vulnerability is neither explicit in legislation nor in the Immigration Regulations but is implicit in the principles of non-discrimination and equal treatment. Although the concept of vulnerability is not a legal one per se, legal obligations to assess and address certain vulnerabilities are implemented in the immigration law as well as in welfare regulations. Certain groups and persons are given special attention with reference to the state obligations derived from specific international conventions, creating a hierarchy of vulnerabilities. The main attention is on minors, gender related issues, sexual identity and victims of human trafficking for the purpose of prostitution.

We find that the use of human rights discourse normatively specifies obligations for individuals and groups to ensure that they receive effective protection and tailored kinds of support. The normative content is specified in administrative guidance, without an extensive use of a ‘vulnerability’ discourse in these regulations. Practitioners we interviewed tended to use the concept in a descriptive manner. The vulnerability discourse, then, is gaining traction in practices. This is particularly the case for procedural
adjustments and guarantees, and in the context of reception conditions.

There is no specific procedure for identifying especially vulnerable protection seekers. Instead, the responsibility to identify special needs is integral to ordinary registration and asylum procedures, and as such diffused across different institutions. There are advantages to this approach, but also certain built-in challenges. Vulnerability thus becomes one of many topics to cover, and often a peripheral one given time pressures and limited expertise. Another challenge is the fragmentation of data, attributable to
different data systems and data privacy regulations. Caseworkers’ personal commitment and networks can be vital to ensuring a good information flow across institutional boundaries.

As for reception conditions, we have emphasised the use of separated sections for those with demanding health problems, and access to ordinary health and welfare services in our analysis. For certain groups, such as unaccompanied minors and victims of trafficking, modified accommodation and support is available.

In relation to procedural aspects, numerous guidelines and circulars address how to identify claimants from certain vulnerable groups during the asylum interview and throughout the decision-making process. Even so, there are some shortcomings in the way in which asylum hearings are conducted, including restrictions on the right to a personal appearance upon appeal and limits on legal aid.

In the protection assessment, the concept of ’vulnerability’ draws attention to groups at heightened risk of persecution or serious harm in any given context. Norwegian practice recognizes that the assessment of both a claimant’s credibility and the objective risks that they face upon return may be affected by factors such as age, gender, marital status, mental and physical health, and experience with trafficking or sexual violence. Many country practice notes and other forms of guidance highlight specific groups exposed to serious harms (for example single women without a male network), but the level of detail differs between
countries. Situations not covered explicitly may be overlooked or considered less credible.

While human rights law is the normative focus of Norway’s protection regime, we found that only a select subset of international legal sources and instruments are applied by courts and the bureaucracy to identify people in need of protection: the ECHR, the CRC, and the Refugee Convention. Other instruments, including ICERD, CAT, CRPD, could usefully focus attention on the obstacles that applicants with particular vulnerabilites — for example a disability or experience of torture — might face upon return, and therefore clarify their right to refugee status.

We find that the scope of protection for vulnerable asylum seekers and refugees is limited by narrow readings of Norway’s obligations under the 1951 Geneva Convention and the European Convention on Human Rights. For example, Norwegian law excludes consideration of whether removal to an “internal protection alternative” would be reasonable for the person concerned, meaning that vulnerabilities associated with ‘return’ to internal displacement may be dismissed in the inclusion and cessation
assessments. This legally-produced vulnerability violates refugee law doctrine and undermines the obligations Norway has undertaken to support durable solutions under the Global Compact on Refugees. If a protection seeker does not fulfill the criteria for refugee status, vulnerability factors are considered as part of the assessment of whether “strong humanitarian considerations” justify a residence permit. Here, vulnerabilities related to health, age and trafficking experience are considered along with compound
factors that would make return indefensible from a humanitarian perspective.

However, in Norwegian law and practice, access to humanitarian status is influenced by overall asylum flows. The duty of a decision-maker to balance individual factors against state interests leads to the exclusion of many protection seekers with profound vulnerabilities, including physical and mental health problems. This is particularly true when the protection seeker comes from a country with many similarly situated people (for example, a trafficked woman from Nigeria, or an unaccompanied minor from
Afghanistan), raising equal treatment concerns between countries. When it comes to the best interests of children, meanwhile, it is clear that the weight given to this “fundamental consideration” varies widely depending on the competing state interests.  

The increased use of time-limited permits for persons with humanitarian status who have not proven their identity increases the vulnerability of people with a recognized right to remain. People with limited residence permits face documented difficulties accessing bank services, finding work, getting a driver’s license and travelling. Sick or traumatized protection seekers may never be able to satisfy documentation requirements to be granted the ordinary permit, and families face a delay in resettlement from the
reception centers.

In the context of refugee resettlement, vulnerability criteria are co-constructed cross-sectorally by a plethora of institutional actors in Norway and abroad. Here, priority is given to families with young children, typically below the age of 15 years. Transparency is a particularly salient issue in this context due to the discretionary nature of resettlement, which is far less regulated by law than the topics raised above. Among other things, this relates to how refugees’ vulnerabilities are balanced against their presumed future integration potential.


Despite the uneven attention given to various vulnerability factors in Norwegian practice, our informants found the concept of vulnerability to be useful for highlighting the complex and often interrelated factors that expose people to harm –in their countries of origin, in transit, as well as in Norway.  More systematic efforts to promote contextual understandings of vulnerability – in contrast to simplified categories - may help ensure that people’s protection needs are met in a more consistent manner.

Main protection gaps
Related to the findings above, we have identified the following areas in which Norwegian practice departs from international standards in terms of identifying, assessing, and addressing vulnerabilities:

• Some vulnerable refugees with special needs wait for years to be settled in a municipality. The Convention on the Rights of Persons with Disabilities (CRPD) obliges state parties, including Norway, to take all appropriate measures to modify or abolish existing practices that constitute discrimination against persons with disabilities.

• Best interests of children are excluded from the protection assessment (IA §28). Instead, they are evaluated when considering a discretionary permit on humanitarian grounds (IA §38). The consequence is that children’s best interests are frequently sacrificed to immigration control interests, raising doubts about whether they have been adequately weighed as a ‘fundamental
consideration’ in the decision (CRC).

• The Istanbul Protocol for the identification and documentation on torture and its implications is implemented as part of The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment and Punishment (UNCAT). However, the guidelines are not sufficiently made known and used in the health service and in rehabilitation of torture victims.

• The IPA (“internal protection alternative”) excludes an assessment of whether “return” to internal displacement is unreasonable for the claimant, who has already established a protection need visa-vis his or her home area. There is broad consensus among states, UNHCR, and other experts that IPA application must be conditioned by the following safeguards: relocation must be accessible, safe, and reasonable. Norway’s position not only violates the 1951 Convention but also undermines the durable solutions agenda most recently reinforced by the UN Compact on Refugees.

• Cessation practice relies on non-state actors of protection and IPA practice to justify the withdrawal of refugee status. Severe past persecution does not, on its own, relieve a refugee from potential cessation of status.

• The extensive use of temporary residence permits undermines children’s rights to stability and development (CRC), and infringes the rights of refugees of all ages to participation and inclusion in the country of residence (Articles 2-34 Refugee Convention)

NEUROSURGERY ENTHUSIASTIC WOMEN SOCIETY

Vulnerable Protection Seekers in Norway: Regulations, Practices, and  Challenges.

This research report presents some of the intermediate research results of the VULNER project, based on the first phase of the project, which consisted of mapping out the vulnerability assessment mechanisms developed by state authorities in Norway, including how they are implemented on the ground through the practices of the public servants in charge. The following research questions are addressed: What do the relevant domestic legislation, case-law, policy documents, and administrative guidelines reveal about how “vulnerabilities” are being assessed and addressed in the countries under study? Do the relevant state and/or aid agencies have a legal duty to assess migrants’ vulnerabilities, and if yes, using which procedures, when and how? Following which legal and bureaucratic criteria? How do decision-makers (street-level bureaucrats) understand and perceive the ‘vulnerabilities’ of the migrants they meet on a daily basis? How do they address these ‘vulnerabilities’ through their everyday practices? What is their stance on existing legal requirements towards ‘vulnerable’ migrants? Which loopholes do they identify? To that end, the objective of the legal enquiry was to analyse and reflect upon how ‘vulnerability’ is being developed as a legal and bureaucratic concept in the Norwegian regulations. Legal sources include national laws and regulations related to immigration and welfare (health, child welfare, and social security), as well as more than a hundred administrative guidelines. The main policy documents included in the analysis consist of white papers, resolution proposals, and written political interventions

NORA - Norwegian Open Research Archives

https://samfunnsforskning.brage.unit.no/samfunnsforskning-xmlui/bitstream/11250/2827370/1/Vulnerable%2bProtection%2bSeekers%2bin%2bNorway.pdf

Vulnerable Protection Seekers in Norway: Regulations, Practices, and Challenges

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