Understanding the internal protection alternative (Part I)

This is the first post in a two-part series on the internal protection alternative (IPA) based on Jessica Schultz ’s new book on the topic. The two blog posts were first posted on “The EU Immigration and Asylum Law and Policy” blog, and are re-posted here. It starts with a case study on Norway and follows up with a post reflecting on refugee law’s ‘surrogate’ role which states use to justify IPA practice.

By: Jessica Schultz, Researcher and Senior Adviser, CMI

A post mortem on the demise of the reasonableness requirement: The IPA in Norway

It might surprise some readers that Norway, normally viewed as a human rights stalwart, is at the forefront of efforts to push the boundaries of refugee law in a restrictive direction. Like other European States, Norway responded to the influx of refugee claims in 2015 with a barrage of policies intended to deter and divert refugee flows. Border controls, safe third country transfers, time limits on residence, and restricted family reunification were among the measures adopted to ensure that Norway’s policies at a minimum were not more generous than those of its neighbors.  

In one area, however, Norway’s restrictions surpassed those of other states: it lowered the threshold for applying the ‘internal protection alternative’ (IPA) as a basis for denying refugee claims. IPA practice is premised on the view that refugee law comes into play when the claimant’s country of origin cannot or will not provide protection itself. If a domestic alternative to asylum abroad is accessible, safe, and reasonable, UNHCR and many states accept that a refugee claim may be refused.

Following amendments to the Immigration Act passed in 2016, this last condition, that relocation is ‘reasonable’, no longer applies. In the government’s view, the principle of non-refoulement only requires that protection against persecution is available in a return area. If it is, refugee status need not be recognized – no matter how harsh the consequences may be. Only one other jurisdiction – Australia – excludes reasonableness from the IPA assessment.

For reasons described here, ‘reasonableness’ (or proportionality) is widely-recognized as a legal requirement for application of the IPA limit. So what explains Norway’s outlier position? This post reviews the historical and political roots of Norway’s current IPA practice, including the claim that the right to refugee status is subject to a degree of state discretion. I will also discuss, as an example, the consequence of Norway’s position for unaccompanied Afghan minors and implications for other areas of refugee law.

Roots of the reasonableness test in Norway

As with other states in Northern Europe, IPA practice in Norway gained momentum in the 1990s, and evolved largely in response to claims of persecution by non-state actors. Consideration of the IPA in these early years was exceptional and informal in nature, and justified with reference to paragraph 91 of UNHCR’s 1979 Handbook. Although the 1988 Immigration Act made no mention of an IPA limit, the Ministry of Justice’s Asylum Guidelines in 1998 formally addressed, for the first time, the concept’s relation to refugee status:

In cases where the applicant will be threatened by non-state groups or individuals in certain areas of the home country, protection in Norway (either in the form of asylum or a residence permit) is normally refused if he or she will be secured protection in other (for example government-controlled) areas of the home country.

The Guidelines offered an exception when, ‘after a holistic assessment of all aspects (health issues, impact on children, links to Norway), there may be cases in which the claimant should not be compelled to relocate elsewhere in the home country despite the possibility of securing protection there.’ Notably, the ‘aspects’ mentioned depart from the ‘reasonableness’ criteria set out by UNHCR. Instead, they refer back to a separate provision of the Immigration Act concerning residence on humanitarian grounds.

From the beginning, then, the reasonableness test was deemed a matter of state discretion, to be linked to whatever criteria domestic authorities deemed to be most compelling.  The consequence was an overly narrow reasonableness assessment (excluding issues like the right to education, freedom of religion and past persecution) and a lower standard of judicial review.

Drafters of the 2008 Immigration Act aimed to realign the reasonableness test with UNHCR’s Guidelines. The Immigration Regulations that followed, however, reasserted the link between the reasonableness assessment and criteria for residence on strong humanitarian grounds. Jurisprudence remained split on the proper reference point until the issue was finally brought to the Norwegian Supreme Court in 2015.

The Supreme Court’s Internal Flight judgment

The Internal Flight case involved an Afghan family refused asylum on the basis of an IPA in Kabul. The parents were originally from Ghazni province, but had spent many years in Iran where their two daughters were born. The Board of Immigration Appeals (UNE) had concluded that their claim for asylum under the Refugee Convention was not credible, but that the family was nonetheless protected on grounds of the security situation from return to their area of origin.  

The question was then: could the family safely and reasonably relocate to another part of Afghanistan? The claimants argued that the IPA test should be interpreted in line with UNCHR´s guidance, in accordance with the intention of lawmakers. By linking the reasonableness criteria with discretionary factors instead, the Immigration Regulations overstepped their statutory basis. The Court, however, declined to rule directly on this issue. Instead, it simply confirmed that the Immigration Regulations, and the specific interpretation they codify, have a legal basis in the Immigration Act.

The Court’s refusal to address the actual criteria reflects a belief that reasonableness is not integral to the IPA concept. Why? One clue is found in Judge Utgård’s opinion, where he harkened back to the Supreme Court’s Abdi judgment from 1991. In that case, involving a sur place claim arising from the person’s voluntary activities in Norway, the Court distinguished between core areas covered by the Convention and periphery issues belonging to a state’s discretion. The subjective sur place problem occupied this peripheral zone: although Abdi was protected from refoulement, he could still be refused refugee status.

Referring to the Abdi judgment, Utgård wrote that the state has ‘broad liberty’ to regulate who has the right to refugee status in Norway. In Utgård’s view, the parameters of non-refoulement regulated by Article 33 (1) of the Geneva Convention only require that the ‘return area is accessible and safe.’ Considerations of reasonableness, on the other hand, occupy a peripheral space that can be regulated as the State sees fit. Even though Utgård’s position was obiter dictum, it was picked up by the Ministry of Justice and Security in its proposal not long afterwards to remove the reasonable conditions from the IPA test: ‘(t)he assessment here is linked to a core area for the Convention, which is protection against return to an area where the foreigner has a well-founded fear of persecution’ (emphasis added).

The ‘refugee crisis’ and removal of the reasonableness requirement in IPA practice

This proposal came as part of a package of measures announced in December 2015. According to the Ministry, the reasonableness test was essentially problematic: it had unclear scope and content; it opened for discretionary assessments that were difficult to structure; and it lead to unequal treatment of similar cases. Furthermore, the Ministry curiously claimed, ‘it is undisputed that international law does not require states to operate with the reasonableness criteria.’ In support of this statement it referred to Utgård’s minority opinion and incorrectly cited Professor Zimmermann´s well-known Commentary on the Refugee Convention. The Ministry also wrote that the ‘reasonableness’ requirement in the IPA provision of the EU Qualification Directive (Article 8) referred only to the extreme humanitarian conditions which have anyway been read into Article 3 ECHR by the ECtHR. In reality, Article 3 jurisprudence doesn’t even capture the requirements of ‘effective protection’ much less reasonableness for IPA purposes.  

Parliament approved the proposed amendment, which came into effect on October 1, 2016. The current IPA provision states that:

“[t]he right to be recognized as a refugee according to paragraph 1 does not pertain if the foreigner can receive effective protection in other parts of the country of origin than that area from which the claimant has fled”.

Consequences for refugee claimants: the case of Afghan minors

It is hard to measure the impact of the change in IPA practice on rates of recognition in Norway. One reason is that the IPA is often used as a subsidiary reason for refusing refugee status, when other aspects of the claim are unclear. Decisions typically reason that ‘even if’ the claimant is telling the truth, or the risk of persecution indeed exists, he or she could still safely relocate to a city or region within their country of origin. Therefore, statistics on the formal grounds for rejection do not capture the influence of IPA reasoning.

We do know, however, that changes to IPA practice has affected the rates of refugee status for some vulnerable groups. Families with children, single women, persons with serious illnesses and others are no longer recognised as refugees  because return to internal displacement would be unreasonable. Instead, if they are lucky, they receive a more contingent leave to remain for humanitarian reasons. The IPA rules have also affected recognition rates for unaccompanied minors (UAMs), most of whom come from Afghanistan.  Before 2016, UAMs were exempt from IPA practice since the absence of a caregiver would automatically render return ‘unreasonable’. This is no longer the case. Removal of the reasonableness requirement has resulted in the expanded use of temporary residence visas that expire at the age of 18. At that point these youths may be returned to a city (Kabul) increasingly recognized as profoundly unsafe and to a country those born in Iran or Pakistan have never even lived in.

Following a regulation change earlier in 2018 aimed at softening these harsh effects, decision-makers were instructed to review these cases to consider, among other things, whether the minor would have a network and/or resources to get along in Kabul.  These vulnerability criteria covered only a fraction of the factors relevant to a reasonableness analysis. Even so, the Immigration Directorate determined that less than half of the youths who applied met them. Many others, living precariously in Paris and elsewhere, did not meet the deadline for having their claim reconsidered.

Consequences for other dimensions of refugee law: cessation of refugee status

The concept of a refugee set out in the 1951 Refugee Convention is being squeezed not only in terms of its spatial dimension, but also its temporal one. As the Ministry of Justice reminds us, ‘international protection is subsidiary to protection in one’s own country’. In the next post, I will unpack this claim. For the time being, however, it begs the question: if refugee status can be refused on the basis of an IPA, can it also be revoked when an IPA becomes available?  In Norwegian practice, the answer appears to be positive.

In the view of the Ministry of Justice, the need for protection no longer exists when some area of the home country is safe. It has argued that implementing the IPA in these cessation cases ensures ‘equal treatment’ for all refugees from the same country, no matter what part they come from. This position not only conflates return to one’s previous residence with prolonged (domestic) displacement, but it diverges from requirements under the Refugee Convention. Article 1C (5) permits states to withdraw refugee status if, among other things, circumstances that gave rise to that status no longer exist. As the  UNHCR explains, “the changed situation must address the causes of displacement. Further, changes must be fundamental in nature, so that the refugee ‘can no longer…continue to refuse’ home state protection”. Referral to an IPA undermines both these guarantees.

Conclusion

In Norwegian practice, the focus of asylum authorities is not on the risk of persecution but on the possibility of protection somewhere, no matter how unreasonable the consequences are for the claimant. Even the threshold of  ‘effective protection’ is undermined by narrow interpretations of who can provide it, how long it may last and how big the area in which it exists needs to  be. The dynamics set in motion in 2015 create a dangerous precedent in a region where national authorities are anxious to exploit all possible arguments for refusing claims to refugee status.