Lund University

Department of Sociology
Division: Sociology

THE BEST INTERESTS OF THE CHILD IN AN

IMMIGRATION LAW CONTEXT
A Research Study on How the Best Interests of the Child Has Been Interpreted
in Two Asylum Cases by the Supreme Court

Julie Bettina Blakstad

Programme: Master of Science in Development Studies
SIMV07 Master’s Thesis, 30 credits
Spring Term 2013
Supervisor: Olle Frödin

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Abstract

The focus for this qualitative research is how the best interests of the child has been
interpreted in two asylum cases by the Supreme Court. The context is how most liberal
democratic states have committed themselves to international human rights laws, binding
them to safeguard the rights of the child, while facing extra-legal pressures from constituents
to limit migration. This research draws primarily on document research as a method, to show
how the Supreme Court has struck a balance between the rights of the child (substance
criteria) and the rights of the state to limit migration (procedural criteria) in a Norwegian
context. Drawing on key theoretical concepts, the main conclusions of this research are firstly
that there are many ways to interpret legal texts, such as the Convention on the Rights of the
Child (CRC) and the Article 3 (1) ‘the best interests of the child’. Secondly, by examining the
nature of the relationship between national- and international law, this thesis shows that there
are different interpretations on the international human rights obligations’ power to direct how
states should practice the best interests principle. Thirdly, this thesis indicates that
international laws’ indeterminacy gives the states wide latitude to interpret the best interests
principle. Fourthly, this thesis clarifies the relationship between law and politics, and
indicates that the interpretation of the best interests principle is influenced by political and
extra-legal factors.

Key words: ‘best interests of the child’, ‘immigration control considerations’, ‘longstaying
children’, ‘human rights’.

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Acknowledgments

I would like to take this opportunity to thank my supervisor, Olle Frödin, who has guided me
through all the stages of this thesis. I would also like to express special thanks to my family
and friends for their encouragement and support.

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Abbreviations

AVRR – Assisted Voluntary Return and Reintegration

CRC - The Convention on the Rights of the Child
ECHR - The European Convention on Human Rights
ECtHR - The European Court of Human Rights
IOM – International Organisation for Migration
ISF - The Institute for Social Research
UDI - The Norwegian Directorate for Immigration
UNE - The Immigration Appeals Board
UNHCR - The United Nations Human Rights Council
UNICEF - The United Nations Children's Fund

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TABLE OF CONTENTS
INTRODUCTION ...................................................................................................................... 7
The Plenary Supreme Court Judgments .............................................................................. 7
Objectives and Research Question...................................................................................... 8
Justification of Research ..................................................................................................... 9
Disposition ........................................................................................................................ 10
METHODOLOGY ................................................................................................................... 12
Methods............................................................................................................................. 14
Observations ..................................................................................................................... 14
Interviews .......................................................................................................................... 15
Document Research .......................................................................................................... 17
Research Process ............................................................................................................... 19
Ethical Considerations ...................................................................................................... 19
THEORY .................................................................................................................................. 21
Substance - and Procedural Criteria for Democratic Legitimacy ..................................... 21
The Paradox of Western Democratic States ..................................................................... 23
The Relationship between Politics and Law on Immigration ........................................... 25
CONTEXTUAL FRAMEWORK ............................................................................................ 29
The Immigration Policy Framework in Norway ............................................................... 29
The Convention on the Rights of the Child (CRC)........................................................... 31
The Rights of the Child in a Norwegian Political Context ............................................... 35
The Plenary Supreme Court Judgments ............................................................................ 37
ANALYSIS .............................................................................................................................. 40
The Nature of the Relationship between National Law and International Law ............... 40
A ‘present time assessment’ .......................................................................................... 40
The wide space for interpretation .................................................................................. 44
The Relationship between Politics and Law ..................................................................... 45
Decision-makers and their (power) position ................................................................. 45
The best interests of the child considerations versus immigration control considerations
....................................................................................................................................... 49
Connection to Norway versus illegal stay ..................................................................... 50
The best interests of the child versus general prevention considerations ..................... 53
DISCUSSION .......................................................................................................................... 56
CONCLUSION ........................................................................................................................ 59

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 Further Research ............................................................................................................... 61
BIBLIOGRAPHY .................................................................................................................... 63
ATTACHMENTS .................................................................................................................... 75
Interview Participation Form ............................................................................................ 75
Informed Consent Form .................................................................................................... 77
Interview Guide ................................................................................................................ 78

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INTRODUCTION

Most liberal democratic states have on the one hand committed themselves to international
laws, binding them to safeguarding the rights of migrants. On the other hand, states tend to
face extra-legal pressures from constituents to limit migration. Liberal democratic states need
to develop and enforce immigration control policies that safeguards the rights of migrants,
and in the past decade, there has been a growth of interest on how liberal democratic states
navigate between immigration control policies and securing the rights of migrants
(Brochmann, 1999; Brettell and Hollifield, 2008). This thesis sets out to explore how the
Norwegian state upholds the human rights of migrant children, while simultaneously
maintaining the rights to control immigration. This thesis will explore the balance between
these considerations by analysing two plenary Supreme Court judgments, in order to examine
how the tension between the rights of the child and competing considerations, including
political priorities and other extra-legal factors, is expressed.

The Plenary Supreme Court Judgments

The 21st of December 2012, two Supreme Court judgments, Verona Delic and family, and
Hossein Shabazi and family against the State by the Immigration Appeals Board (UNE) were
decided in plenary by the Court. The cases concerned the validity of a negative decision based
on an application for asylum and residence permit (case 2012/688), and the validity of a
denial to reverse a negative decision (case 2012/1042). The plenary judgments broadly
concerned three main issues: should the Court assess the cases using a ‘present time
assessment’?, were the decisions made by UNE in accordance or in conflict with current law,
especially the Convention on the Rights of the Child (CRC)?, and was there a judicial basis to
intervene in the considerations UNE had undertaken between the various relevant
considerations? (Langbach, 2013). The majority of judges concluded that the Court shall
assess the validity of UNE’s decisions from the time the decisions was made, and not a
‘present time assessment’. Furthermore, the majority of the Supreme Court ruled UNE’s
decisions valid, and in line with the CRC. Moreover, the judges found no judicial basis to
intervene in the considerations UNE had undertaken. On the basis of these questions, a
majority of fourteen judges found both decisions to be valid. Five judges found the decisions
to be invalid.

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By examining how the judges interpret the validity of the two asylum-cases, this research
attempts to emphasise the tension liberal democratic states may face, where states have
committed themselves to international laws, binding them to safeguarding the rights of
migrant children, but are also committed to protect the interests of (legal) members of
society. The judges have had to interpret the best interests of the child in light of other
competing considerations, including immigration control considerations. Using these plenary
judgments as the empirical basis for the research, the intention is to show that there are many
ways to interpret legal texts, such as the CRC and the Article 3 (1) the best interests of the
child, and that the interpretation is influenced by extra-legal- and political factors.

The plenary judgments are of importance because the judgments had consequences for these
two families, but also set the standard for approximately 500 other asylum-seeking children
who have been staying in Norway for a long time (longstaying children), and who have a
strong connection to Norway. This research can be used to better understand the tension
between human rights obligations and immigration control considerations when interpreting
the best interests of the child in an immigration context. The research can thus be used to
understand the current practice of Norwegian immigration law.

Objectives and Research Question

The issues that are raised in the plenary judgments form the basis for my research objectives.
The objectives of this research are to:

I. Examine how liberal democratic states, in this case Norway, may balance the rights of
the child (substance criteria) and the rights of the state to limit migration (procedural
criteria), and to
II. Examine the relationship between politics and law in an immigration context.

More specifically, this thesis proposes to answer the question:

How has the best interests of the child been interpreted in two plenary Supreme Court
judgments?

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The question will be answered with specific reference to how the Court has struck a balance
between the rights of the child (substance criteria) and the rights of the state to limit migration
(procedural criteria).

The objectives of this research are vaguer, and much wider than the research question. The
first objective concerns whether the plenary judgments express a position where it is through
national politics and national (Norwegian) laws, or through human rights obligations, that the
best interests principle is managed. Understanding the nature of the relationship between
national- and international law on the best interests of the child in the field of immigration is
opted for. Understanding the ways in which international human rights obligations influence
the interpretation of the best interests of the child, makes it possible to reconstruct states’
(power) position to give content to the interpretation of the best interests principle.
Furthermore, reasons why international human rights norms, which states have committed
themselves to, have little power in deciding how states are balancing procedural and
substance criteria, will be explained.

The second objective is aimed at understanding the relationship between law and politics on
interpreting the best interests of the child principle in an immigration context. Clarifying the
relationship between law and politics will make clear that the interpretation of legal texts,
such as the best interests if the child, is influenced by political factors, differences between
decision-makers, and other extra-legal factors.

It is hoped that the objectives of this research will help to explain how the best interests of the
child has been interpreted by the Supreme Court.

Justification of Research

Current research on the field of migration concerned with the best interests of the child
principle tend to take a legal perspective or method as a point of departure, and tend to have a
judicial analogy as a starting point for their research (Brekke et. al., 2010). The same is true
for research done by Norway, where most of the research on the field of migration on the best
interests of the child has been tied to the practice of law and legislative questions (see Haugli,
2003; Einarsen, 2008; Wille, 2008; Stang, 2008a; 2008b; Sandberg, 2008; Haugli and
Shinkareva, 2012). Brettell and Hollifield (2008:2) argue there is a risk that when social

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scientists do not approach the issue of immigration across disciplines, they consequently
ignore research that has been made, and they will not be able to appreciate the different
theoretical perspectives. There is a need to bridge the gap between disciplines on the
understanding of the human rights of the child in the context of immigration. There exists a
compartmentalisation in the study of human rights, where the knowledge is not shared across
disciplines. By taking a judicial analogy as a starting point, the sociological perspectives
concerning the study of human rights become a second priority, and in worst case, get
excluded from the research. On the other hand, sociological theorists are less prone to shed
light on the legal aspects of juridical norms. In the application of human rights norms, such as
the best interests of the child, existing literature suggests the ‘limits of (human rights) law as a
force for social change’ “is in many respects the least well understood and certainly one of the
most neglected issues in the entire field” (Alston, 1994). Understanding the limits of human
rights law as a force for social change is opted for through an understanding of how the
judges have interpreted the CRC and the best interests principle. The plenary judgments have
been chosen as the empirical basis for investigation as the judgments make it possible to
deconstruct interpretations, and to explore how the different judges’ interpretations are
expressed. This research is important as it will show how interpretations of the best interests
of the child in the plenary judgments not only involves a legal approach to the interpretations
of human rights, but includes looking at how interpretations of legal texts are socially
constructed and influenced by a number of societal factors. By focusing on human rights laws
this research will show that the plenary judgments are not an independent or isolated event,
but a constituent part of a societal context which is influenced by institutional and individual
attitudes and behaviour that led to the outcome of the decisions (Shapiro, 2002).

Disposition

This thesis will first present the methodology, where the empirical elements of this research
are addressed. My own personal attachment to the issue, and how I arrived at the research
topic, will also be discussed. The different methods that have been used will be explained,
along with challenges and ethical considerations encountered in the research process. Next,
this paper will present an overview of central theoretical concepts to place this research within
the current debate. I address the tension between procedural and substance criteria for democratic
legitimacy, the paradox of Western democratic states concerning how states navigate between
‘open borders’ and ‘closed borders’, in addition to the relationship between law and politics on

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immigration. Next, this paper will present the reader with a contextual framework to better
understand the research topic in a Norwegian context. The contextual framework forms a
basis for understanding the issues that are addressed in the analysis. I further explain the
immigration policy framework in Norway. The following sections on the CRC and on the
rights of the child in a Norwegian political context, further explains how the best interests of
the child is safeguarded in the Norwegian legal- and political system. Next, a short
introduction to the plenary judgments are presented, followed by the research analysis. In the
analytical part, the relationship between national- and international law through a discussion
on a ‘present time assessment’ and a discussion on the states’ wide space for interpretation of
human rights norms, is examined. Next, how the relationship between law and politics is
expressed in the Court will be clarified, by examining the ‘decision-makers and their (power)
position’, ‘the best interests of the child considerations versus immigration control
considerations’, ‘connection to Norway versus illegal stay’ and ‘the best interests of the child
versus general prevention considerations’. Then, a discussion will be put forward. Finally a
summary of the main conclusions and suggestions for further research are presented.

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METHODOLOGY

In the following, the epistemological standpoint, the choice of methods, the choices of
sampling and data collection, and limitations of the study will be clarified.

This thesis proposes to study how the best interests of the child has been interpreted in two
Supreme Court judgments in a Norwegian immigration context, with specific reference to
how the Supreme Court has struck a balance between the rights of the child (substance
criteria) and the rights of the state to limit migration (procedural criteria). To conduct this
research, social constructionism was used as the epistemological stance, as this thesis attempts
to understand how meanings are constructed delimited to the plenary judgments (Schwandt,
2003). In the plenary judgments context, law is a central tool for investigation, and how laws
are interpreted is of central importance. The theoretical concepts will make clear how there
are many ways to interpret legal texts, and that the interpretations are influenced by extra-
legal and political factors (Hydén, 2008). Understanding how extra-legal and political factors
influence the interpretation of legal texts makes it possible to study the participation of
different decision-makers and their (power) position can thus be reconstructed (Spång, 2008).

Research studies can be both quantitative and qualitative in nature (Bryman, 2008:52-53;
2012). Qualitative research starts with assumptions, and moves from specific reflections to
broader generalisations, also known as inductive data analysis (Creswell, 2007). Drawing on
the qualitative perspective will enhance the knowledge and understanding of how a set of
decisions are constructed in the plenary judgments. This research used three different types of
methods: observation, elite interviews and document research, because they together produce
differing, but mutually supporting ways of collecting data on the same issue. Using different
qualitative methods, also known as triangulation, will contribute to the understanding of the
research study in a more holistic and complete fashion as the methods complement each other
(Denscombe, 2003; Flick, 2009:25-26). An approach that allows for a corroboration of
findings also enhances the validity of the data (Denscombe, 2003).

The sampling in qualitative research is often purposive, meaning that the theoretical purpose
of the research, rather than the methodological mandate, determines the sampling process
(Marvasti, 2004). Purposive sampling is used here as a way to sample participants and cases
12
in a strategic way to ensure that what have been selected is relevant for the research (Creswell
2007). The seminars I attended as an observant, the people I interviewed, and the documents I
chose to analyse, have all been purposively selected as they have a direct reference to the
research.

The choices of sampling have been influenced by my internship at the Norwegian

Organisation for Asylum Seekers (NOAS), as a part of my Master’s Degree in Development
Studies. NOAS works as a ‘watchdog’ for asylum seekers’ rights in Norway, and through my
internship I was introduced to the issue of interpreting the best interests of the child principle
in asylum cases. The issue involved the balancing between the rights of the child (substance
criteria) and the rights of the state to limit migration (procedural criteria) in a Norwegian
immigration context. The issue was later on chosen as the topic for my thesis. Through my
internship, I was able to attend seminars concerning the balancing between procedural and
substance criteria. These seminars were used as a way to better understand the context of the
plenary judgments and to get an insight into the opinions and thoughts by people in the field
of immigration. Through my internship at NOAS (and from the seminars), I was also able to
get in contact with people in the field who had great knowledge of the rights of asylum-
seeking children in a Norway. These people were selected as interviewee objects based on
their knowledge and position in the field. The elite interviews were conducted in order to
strengthen my understanding of the plenary judgments and to understand how the balance
between procedural and substance criteria is worked out in a Norwegian immigration context.
NOAS was a party to help in the plenary Supreme Court judgments, and the cases were
purposively chosen as the empirical basis for this thesis. The plenary judgments were chosen
because the cases in themselves are relevant; many asylum-seeking families with children live
in Norway after exceeded departure deadline. Norway’s immigration policy also focuses on
the situation for longstaying and child migrants. In addition to the attention immigrant
children have received in politics, the plenary judgments also received a lot of attention by the
media, and became a public interest. The judgments had consequences for the two families
involved, but they also influenced, and set the standard for 500 other asylum-seeking children
(Viseth, 2012).

This research draws primarily on the plenary Supreme Court judgments, which are known as
second-hand data. The first-hand data from the observations and interviews were collected to
get a better understanding of the plenary judgments. A final note must be added relating to the

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choice of sampling, and the validity of the research. A challenge concerning the interpretation
of the data concerns the issue of language. The empirical material, the seminar notes,
interview transcripts and documents have all been written in Norwegian. I have therefore
translated the quotes I have used, which means that some of the original meaning may have
been lost. Additionally, the documents used in the analysis are written for legal purposes and
in an academic manner, which I am not familiar with, and sometimes made it difficult to
analyse. I have accounted for this limitation by getting support from one of my interviewee
objects, a lawyer, to clarify the juridical context and read through my understanding and
translation of the plenary judgments.

As a result of the choices of sampling, there are certain limitations to the current research. The
area of research is narrowed down to the field of immigration in Norway in the past decade,
as the past decade marks major changes in the Norwegian migration and refugee policy.
Norway was chosen as the general context as I learned a great deal about the asylum-process
in Norway during my internship at NOAS. This research focused on cases where the child
falls under the parents’ asylum cases (i.e. accompanying children). Consequently, this
research does not consider cases where the child is a single part with their own case. The
research concerns one type of migrants1, namely third country nationality families with
longstaying children, meaning families who have been living in Norway for a long period of
time, both legally and illegally. In both cases, the considerations ‘best interests of the child’
(cf. CRC Article. 3 (1)) and the ‘connection to Norway’ against immigration control
considerations are central for the plenary judgments (cf. Immigration Act § 38).

Methods

In the following, the three methods that have been used in the research will be clarified.

Observations

Observation is a widely used method in the social sciences. According to Denscombe

(2003:192), observation “draws on the direct evidence of the eye to witness events first hand”.
Observation is a suitable method when one wants to study situations the researcher would not
otherwise have access to. Gaining access to the field can be difficult (Flick, 2009:106). NOAS
1
A migrant can be understood as "any person who lives temporarily or permanently in a country where he or she
was not born, and has acquired some significant social ties to this country” (UNESCO n.d.)

14
worked as a ‘gatekeeper’ (Gubrium and Holstein, 2002:299), making it possible to attend
seminars and to observe discussions between different decision-makers, including
administrative immigration authorities, lawyers and NGOs, on how Norway are balancing
human rights of the child and immigration control.

The observations took place during the time period from August to January. The seminars
were hosted by different decision-makers within the field of immigration, including the
Norwegian Directorate of Immigration (UDI), the Institute for Social Research (ISF), Save
the Children and the UNHCR in collaboration with UNICEF. These seminars were chosen as
they focused on the flows and regulations of migration in Norway and on child asylum
claims. The observations made it possible to get first-hand information on how the balance
between procedural and substance criteria is worked out. The purpose of the observations was
to get a better understanding of the context of the plenary judgments and to get an insight into
the opinions by different actors in the field of immigration.

The individual skills as a researcher are of importance to the data-gathering. The data was
gathered through note-taking. I took notes during each seminar, and typed up my notes at the
first opportunity in order to remember the thoughts and meanings that were expressed
(Denscombe, 2003:204). Even though it might have been beneficial to record the seminar,
using a tape-recorder might be viewed negatively by those present at the seminars, and might
have altered the discussants’ behaviour (May, 2001:137-138).

Interviews

The interview-method is extensively used in the social sciences. Qualitative interviewing is

useful when its purpose is to understand the interviewees’ meaning-making and experiences
(Gubrium and Holstein, 2002; Kvale and Brinkmann 2009). Elite interviews are interviews
where the interviewees are chosen due to their expertise, and because they can give privileged
information (Denscombe, 2003; Flick, 2006:165). The one-off elite interviews prepared me
for the document research analysis, and were primarily used to get a better understanding of
the context of the plenary judgments (Denscombe, 2003). The elite interviews also made it
possible to discuss relevant questions more in depth, and to gain a different perspective in
addition to the observations, where my role as a researcher was based on observing the
situation rather than interacting in the discussion (ibid.).

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Requests for interview participation were sent out to possible interviewee subjects, which
explained in brief what the research was about as well as their rights as participants (see
attachment 1) (Denscombe, 2003). A consent form was attached to the email (see attachment
2). A range of participants with differing job positions and backgrounds was opted for.
Thanks to the ‘key informants’ at NOAS and the seminars, locating interviewees proved to be
easy. These people were then contacted and purposively selected based on their expertise
knowledge of the research problem (Creswell 2007:125). The purposively chosen participants
also had a unique experience as ‘insiders’, and provided me with interpretations and
suggestions for further lines of inquiry (Kvale, 2007).

In total, seven requests for interview participation were sent out via email. Requests were sent
to UDI, the central agency on the immigration administration in Norway, UNE, the
independent quasi-judicial Appeals Board that handles appeals of rejections by the UDI
pursuant to the Immigration Act, ISF within the Department ‘Equality, Inclusion, and
Migration’, the Ombudsman for Children, a politically independent state institution, whose
task is to ensure that the Norwegian authorities uphold the CRC, a Research Fellow at the
University in Bergen at the Faculty of Law, International Law and International Human
Rights, a PhD student writing on UDI and UNE’s assessment of the child's best interests in
asylum- and immigration cases, and a lawyer at the Ministry of Justice and Public Security at
the Department of Immigration. Of all the requests, three answered positively. The three
interviewees were from the ISF, the Ombudsman for Children in Norway and from the
Ministry of Justice and Public Security respectively. I arranged to meet the interviewees at a
convenient time and suggested they could choose a venue where there would be little
disturbance (ibid.). Two of the interviews were held at a quiet place at the interviewees’
workplaces, and one via telephone, and they all lasted for approximately forty minutes each.

A semi-structured interview format was used in the elite interviews, which contains a list of
fairly specific topics to be covered as well as it allows for questions and further inquiries that
are not included in the guide to be discussed and which may be of importance (Flick,
2006:149; May, 2001:123; Barbour, 2008). The interview guide was mostly based on the
different opinions that were expressed at the seminars. Odendahl and Shaw (2002:310) argue
semi-structured interview format is the most suitable for elite interviews. The same interview-
guide was used for all interviews, but modified depending on the interviewee’s expertise as

16
well as on experiences I had using the guide in previous interviews. I took notes while
interviewing which were typed immediately after the interviews (Denscombe, 2003).

There is a possibility for a self-selection bias of my elite interviews. Self-selection bias might
occur when the participants decide for themselves whether or not they want to take part in a
research (Olsen, 2008). The interviewees might have agreed to take part in the research
because they agreed with its aims and purposes, which might have caused a limited set of
interpretations. Since only some agreed to speak with me, the interviews may not have been
able to capture a wide set of interpretations and opinions concerning how the best interests of
the child principle was interpreted in the Supreme Court.

Elite interviews may be difficult to execute as the interviewees may provide the interviewer
with too much information on the topic, assuming that the interviewer does not have previous
knowledge (Flick, 2006:165). The interviewer should thus be knowledgeable about the topic
of concern and master the technical language, as well as being familiar with the area of
research (Kvale, 2007). The observations and reading on relevant documents, prepared me for
the interviews, and thus decreased the power asymmetry in the interview relationship (ibid.).

Document Research

Document research is a widely used method in the social sciences, and “refers to the analysis
of documents that contain information about the phenomenon we wish to study” (Mogalakwe
2009, in Bailey). Document research was used to analyse how the best interests of the child
has been interpreted in the plenary judgments. The research objectives and research question
served the basis for what documents were chosen (Flick, 2009). I analysed two Supreme
Court judgments, which are categorised as ‘public records’ (ibid.). A public record includes
documents that are available for public use.

Identifying the source of documents enables the researcher to determine the purpose of the
documents, but also the perspective from which they were created (Olson, 2010). The plenary
judgments have not been made at my request as a social researcher, but for other purposes.
The documents’ specific purpose was to assess the validity of two asylum cases, Verona Delic
and family (2012/1042) and Hossein Shabazi and family (2012/688) against the State by
UNE. The decisions made by UNE are not available for the public. It is possible to apply for

17
access to UNE’s asylum cases, but a student rarely gets access to the entire decision, and
perhaps only abstracts of the decisions. I filed in an application in late December, and still
have not received any response. However, the plenary judgments include abstracts of UNE’s
decisions, and assessed them in great detail, which verifies its usefulness for the research.

Engaging with the documents involves a contextualisation of the plenary judgments to

account for different historical and political factors that influence, and have an impact on the
documents (Becker and Bryman, 2012). A theoretical- and contextual framework is necessary
in order to analyse and interpret the plenary judgments (May 2001). The different
assumptions that are laid down in the theoretical- and contextual framework was used to
analyse the plenary Supreme Court judgments (May, 2011).

Using document research as a method requires interpretative skills in order to make sense of
the meanings that is expressed in the documents. The readings of social events involves that
the researcher engages “with the meanings which are embedded in the document” (May,
2001:176-183). The plenary judgments can be viewed as a source of reality where meanings
are socially constructed. Everyone interprets reality in a different manner (Fay, 1996) and this
is clear from the plenary judgments where the judges interpret the best interests of the child
differently. The judges’ interpretations of legal human rights norms such as the best interests
of the child are socially constructed and the outcomes of the decisions do not represent ‘a’
truth, but several truths. The interpretation of these truths poses some challenges. As
mentioned, a challenge concerning the interpretation of the texts is its language, and how it
was written for legal purposes. To account for these and other challenges this research has
followed the ethical considerations in the research process, as outlined in the ethical
considerations section.

A possible limitation with the document research method can be that my notions and
reflections might steer the analysis when reading the documents, which may weaken the
reliability of the findings (Jupp, 2006:298). An attempt to avoid this limitation was made, by
keeping myself as neutral as possible (one can never be entirely neutral as a researcher)
during the analysis and by elucidating competing arguments to account for the different
interpretations of the best interests of the child that are expressed in the plenary judgments.
By clarifying competing arguments the reader gains a greater insight into the plenary
judgments and the different meaning-making processes (May, 2001).

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Research Process

During the analysis of data and conveying of findings from the different methods, it is
important to follow the ethical guidelines in the research process. From the information
gathered at the seminars, I constructed different themes. I re-read the typed up notes to see
whether an alternative interpretation was possible. Based on the constructed themes, the
interview-guide was made (Flick, 2006). An important issue in the process of analysis is to
structure the data so that it makes sense in relation to the research study. The data from my
elite interviews was categorised into themes according to the objectives of the research (May,
2001:139). In addition, the apparent themes from the interviews helped to deconstruct the
interpretations that were expressed in the plenary judgments, as well as make it easier to
choose what was relevant for the research. When analysing the documents, special attention
was given to how the best interests of the child was interpreted, with specific reference to how
the Supreme Court is balancing procedural and substance criteria. In this part of the research
process, the researcher will make certain choices which are crucial for the research results by
choosing what to include and exclude, what is of importance and what is irrelevant. In this
sense, the interpretation lies with the researcher, and cannot necessarily be replicated (Flick,
2006).

Ethical Considerations

In the collection of data, in the process of analysing the data, and in the conveying of findings,
I as a researcher am expected to “respect the rights and dignity of those who are participating;
avoid any harm to the participants arising from their involvement; [and] operate with honesty
and integrity” (Denscombe, 2003). Interpreted loosely, the steps concern all three methods. In
the collection of data, informed consent is a way to account for the ethical considerations
when doing social research (ibid.). Regarding the observations, if the data collection is
unlikely to involve much personal risk to the informants, as with the seminars, the grounds for
not seeking informed consent are partly accounted for (ibid.). Regarding the elite interviews,
informed consent was signed before any interviews took place (Neuman, 2011). Before the
interview took place, and at the start of the interview I stated the purpose of my research,
informed them of their rights, ensured anonymity and how they could withdraw at any point
(Flick, 2006:50). To ensure validity in the document research method, I had to operate with
honesty and integrity, and respect the content of the texts (Denscombe, 2003). In line with the
ethical guidelines, the seminar notes and the interview notes were typed up immediately after
19
the collection, exluding the parts where I was in doubt of what had been expressed in order to
ensure validity (Kvale, 2007). In the process of analysing the data, the notes and transcripts
were kept out of reach for others (Flick, 2006; Berg and Lunde, 2012). Removing the
participants’ names maintained the participants’ privacy and anonymity (Flick, 2009).

In the following, central theoretical concepts are introduced and defined.

20
THEORY

This thesis makes use of a set of theoretical concepts in the attempt to explore how the best
interests of the child has been interpreted in the plenary judgments. This has been done
through a clarification of substance and procedural criteria for democratic legitimacy, as these
concepts will help elucidate how states navigate between these criteria. The tension between
these criteria is further clarified through the concepts ‘open borders’ and ‘closed borders’.
These theoretical concepts shed light on the tension between protecting the rights of the state
and its members, and of the state’s commitment to human rights obligations. A theoretical
framework on the relationship between politics and law is also put forward. A set of
approaches have been used to show that there exists a reciprocal relationship between politics
and law in an immigration context. It is important to emphasise that the relationship between
politics and law is a highly covered topic for different schools of thought, and to be aware that
there are different theoretical approaches and opinions on how the relationship between
politics and law look (Shapiro and Sweet, 2002).

Substance - and Procedural Criteria for Democratic Legitimacy

States’ power to control access and residence to the state, and in what ways it limits the rights
of non-members, are central issues for democratic legitimacy (Spång, 2008).

“The fundamental idea of democratic legitimacy is that the authorisation to exercise

state power must arise from the collective decisions of the members of a society who
are governed by that power...It arises from the discussions and decisions of members,
as made within and expressed through social and political institutions designed to
acknowledge their collective authority” (Cohen, 1996).

These social and political institutions reflect the collective decision-making processes of the
members within a given time and space. Many liberal democratic states have committed
themselves to safeguarding the rights of migrants through human rights norms at the
international, regional and national level (substance criteria) on the one hand, and they face
extra-legal pressures from constituents to limit migration (procedural criteria) on the other
hand. There exists a tension between these two criteria, and in one way they compete for

21
authoritative power, but one may also argue the criteria are two sides of the same coin
(Söderbergh, 2005; Spång, 2008). While substance criteria opts for the protection and meeting
of people’s rights, procedural criteria concerns the Storting’s role in the decision-making, the
ability of citizens to take a stand on parties’ position in political processes, but also that
decision-makers, as representatives for the members of a society, should try to meet the
opinions, claims and interests that are publicly expressed (Spång, 2008).

The tension between the rights of the state to limit migration and the rights of migrants, is
worked out in decision-making processes.

“Rather than superseding the ambiguity between the two approaches to immigration,
what is possible is a continuous negotiation, play[ing] with both sides of the ambiguity
and...preventing any of them from prevailing in an exclusive way” (Laclau, 1996:30,
in Vitus and Lidén, 2010).

It is thus important to examine both the case for members’ right to limit migration and the
rights of migrants, as both arguments bring forth valuable claims. Even if there is no
consensus on how this balance should look, it is often observed that the democratic form of
governance gives the state and its members a right to control immigration, but not at their
own discretion (Spång, 2008). In reference to this research, the general understanding is that
states manage the control of immigration through their immigration policy, however the states
must also consider the rights of the members when these policies are enforced. “Immigration
control refers to the rules and procedures governing the selection, admission and deportation
of foreign citizens” (Brochmann, 1999:9), and thus concerns the rules concerning the
regulation of the exclusion of migrants. Substance- and procedural criteria for democratic
legitimacy seem similar to what theorist Seyla Benhabib calls for porous borders (2004; 2007
in Spång, 2008:27). The thought behind porous border is that no democratic society can close
their borders to different groups and types of migrants, and similarly, no democracy can lose
their right to decide their immigration policy (Benhabib, 1996; 2002). The balancing between
‘open borders’ and ‘closed borders’ is relevant for this research, where the rights of the state’s
members are limited by a number of legitimate expectations and claims (Benhabib, 1996;
Spång, 2008). Migrants’ rights must be considered and safeguarded in the state’s immigration
policy, and in this way, the members’ limits to decision-making are specified (Spång, 2008).

22
One type of criterion for democratic legitimacy is substance criteria, meaning the respect,
protection and meeting of individuals’ (and groups’) rights (Spång, 2008). ’Rights’ in this
context includes rights granted by constitutional status and those expressed in international
and regional human rights laws (ibid.). The emergence of regional and international human
rights conventions can be seen as a globalisation of basic democratic principles, and have
implications for states’ immigration policy as the immigration policy has significant
consequences for individuals that are not members of the state (ibid.). Special weight should
therefore be given to the migrants’ needs and interests in the decision-making on immigration
policy (Bader, 2005:247; Spång, 2008).

Another criterion is procedural criteria, and concerns the Storting’s role in the decision-
making, and transparency of political processes (Spång, 2008). Procedural criteria also
involve the ability of citizens to take a stand on parties’ position in political processes, but
also that decision-makers, as representatives for the members of a society, should try to meet
the opinions, claims and interests that are publicly expressed (ibid.). There exists “a tension
between the two, at times opposing criteria: the rights of the individual to be given asylum on
the one hand, and the right of the state to grant (or withhold) asylum on the other”
(Söderbergh, 2005). How states create enforceable, morally defensible criteria for admission
decisions, concerns the balance between substance criteria and procedural criteria.

The Paradox of Western Democratic States

Some scholars argue there exists a paradox of Western democratic states, where states have
committed themselves to international laws, binding themselves to safeguard the rights of
immigrants, but are also committed to uphold the state’s interests (Carens, 1987;1996,
Weiner, 1996; Brochmann, 1999; Brochmann and Hammar, 1999; Lavenex, 1999;
Söderbergh, 2005; Spång, 2008; Brekke and Aarset, 2009; Brekke et. al., 2010). Western
democratic states are founded on ideals such as openness, equality and solidarity, but also on
the protection of the interests of (legal) citizens (Riise and Øygarden, 1994; Brochmann and
Hammar, 1999; Neumayer, 2005; Boswell, 2005; Spång, 2008). Equality between people and
openness are ideals that place certain obligations on the states’ possibility to control
immigration (Brochmann, 1999:3; Shapiro, 2002; Spång, 2008, Hydén, 2008). Such
obligations can come from an international level, in the form of conventions and treaties, or
national, including laws and national courts (Brochmann, 1999:3). The paradoxical issue

23
concerning the tension between universal human rights and the rights of the state and its
members to control immigration, is broadly divided between what is often referred to as the
‘open borders’ and ‘closed borders’. Much of the underlying moral principles behind this
debate are contradictions between substance criteria and procedural criteria (Weiner,
1996:171; Bader, 2005:337, Spång, 2008).

Freedom of movement and the principle of equality are strong arguments against the closing
of borders, and the arguments often originate from universal human rights principles (Carens,
1996; Weiner, 1996). The arguments for ‘open borders’ include the states’ moral and legal
obligations. Defenders of ‘open borders’ suggest free movement should be a basic human
right, which would eliminate the issue of membership to a state (Carens, 1996; Weiner, 1996;
Bader, 2005). The argumentation gets problematic when other human rights principles stand
in opposition (Bader, 2005:339). Most theorists opting for ‘open borders’ do not support the
claim that other basic human rights, more particularly ‘security’ and subsistence’, are
subordinate to, or should be given the same status as freedom of movement (ibid.). These
claims are more important, and should be given more weight (ibid.). Critics find that, in the
choice between ensuring values, such as freedom and equality in a democratic state, and to
insist on open borders that could undermine these possibilities, most of the proponents for
‘open borders’ would select the former (Spång, 2008).

Common arguments for ‘closed borders’ include the ideas that priority should be given to
members of the state, that states have an important role in maintaining welfare and social
rights, and that closed borders protect the state from great threats (Bader, 2005:348; Spång,
2008). The claims that ‘priority should be given to members of the states’ and to ‘protect the
state and its members’ involve how open borders would result in a mass influx of migrants
which would pose a great threat to public order and social stability (Bader, 2005:348). These
claims are however, constrained by universal human rights obligations because states that
have ratified human rights treaties must adhere to the human rights obligations, which restrict
the state’s power to control immigration. Human rights treaties however, as will be shown,
are often vague and do not provide states with specific instructions or explain how states
should interpret the content of the treaties (Bader, 2005.346; Hydén, 2008). Brochmann
(1999:1) argues Western democratic countries use policies as a way to better control
immigration. These policies are anticipated to fulfill social, economic and security needs for
immigration regulation, without going against international conventions and agreements

24
concerned with human rights (ibid.). In view of this research, using policies as a way to better
control immigration suggests states largely manage the balancing between the rights of the
migrants and the rights of the state to control immigration, with little influence from
international human rights law as a consequence of the lack of guidelines and its vague
content.

In the following, the relationship between politics and law on immigration will be clarified.

The Relationship between Politics and Law on Immigration

“The process - from politics to law and the implementation of law - is complex” (Hydén,
2008).

Different political parties’ stand on immigration influences the legislative and administrative
practice, and will have an impact on the general climate in society (Brochmann, 1999:16-17).
The political parties hold a dual position, representing the state’s members, while
concurrently exercising a great influence on the same members’ attitudes towards
immigration (ibid.). That the authority to exercise state power arises from the collective
decisions by the members of the society who are governed by that power, is the fundamental
idea of democratic legitimacy (Cohen, 1996). NGOs and social movements may also
influence the policy-making on immigration, depending on the relative power of these
agencies (Brochmann, 1999:17; Spång, 2008). The NGOs’ and other actors’ influence will
not be discussed in this research, but it is important to be aware of the significance of these
actors in the discussion concerning the tension between universal human rights and the rights
of the state to limit migration.

Representing the members of the state, the elected bodies such as the Storting [parliament]
and the government take a stand on the political priorities required in a society, including
immigration. Law provides an authoritative way to express these priorities, and plays an
important role by formalising and communicating the tasks the political system has decided
should be executed by the administrative system (Hydén, 1998; 2008). In the Western model,
law conveys political messages to the administrative agencies, whose task is to administer the
politics (Hydén, 2008). “In the Western model, law becomes the watershed between law and
politics” (ibid:161). This means that when politics has been established into legal matters

25
through law and other sources of law, the politicians have to hand over the handling of the
issues to public authorities (ibid.). In reference to this research, the interpretation of the best
interests of the child by the Supreme Court may be construed as a reflection of the political
priorities that are expressed through law. The plenary judgments interpret whether the
political interests concerning immigration have been executed by the administrative
authorities, in this case whether UNE’s decisions are in concordance with the political
priorities and international human rights obligations, including the best interests of the child.

The implementation, meaning the carrying out of public policy and law, can be expressed in
“the body of laws and in the regulations, decisions and actions of government” (Hydén,
2008:148). Problems may occur in the implementation and the legal integration of
conventions, as legal cultures are not the same all over the world. Legislation never occurs in
a social vacuum, and legal norms might compete in one way or another, thus limiting the
effects of the law (Hydén, 2008). A general understanding is that the more detailed laws are,
the less discretion policy-makers use in their implementation (Korn, 1995 in Hydén, 2008).
The presupposition that states that have ratified a convention or enacted a law agrees with the
‘will-component’ of that specific law could be subject to compromise (Hydén, 2008). It is
possible that laws lack complete support (ibid.). A lack of complete support is often true for
universal human rights, such as the CRC, which is known for its vague content and lack of
enforcement mechanisms (ibid.). It is feasible that ratification is a way of showing awareness
to the plight of children which does not necessarily entail any commitments to the
implementation of law (ibid.). Tied to this research, the indeterminacy of human rights
conventions and lack of enforcement mechanisms, may suggest international laws and bodies
have limited power to affect states’ control of immigration. This perspective seems to suggest
that states lean more on national law, and giving less priority to international law.
Furthermore, the wide space for interpretation of international human rights laws suggests
states have wide latitude when it comes to interpreting the CRC and the best interests of the
child. Hence, the balancing between procedural and substance criteria for democratic
legitimacy seems to be generally managed by states.

The legal system has its own institutions, courts, and public authorities to make it possible to
separate law from politics (Hydén, 2008:159). A core function is to set up the division of
power in society, between political decision-making, administrative- and judicial functions
(Hydén, 2008). The autonomy and independence of law and of the court system are important

26
indicators of a vital legal system (ibid.). There are, however, different opinions on how the
relationship between politics and law (as decision-makers) look (Shapiro and Sweet, 2002).
Andenæs (2006) points out that the execution of power [maktutredningen] puts too much
emphasis on the courts- and the legislative importance. It is conceivable that the courts have
been addressing more complex cases than before, but it is not necessarily the case that courts
have gained greater importance or power (ibid.). “Most scholars would agree, [I think] that a
jurisprudence based entirely on general examinations of the nature of law, divorced from
analysis of how the law is made and applied and what it actually does, runs the danger of
excessive formalism and eventually complete divorce from real law in the real world”
(Shapiro, 2002). In view of this research, this suggests that the Court should not be viewed as
separate and independent from other institutions, including social and political systems.
“Courts were—and, often enough, still are—defined as independent and neutral, with a little
bit of political ‘if’ and ‘but’ mixed in” (ibid.). This is in some ways similar to Luhmann’s
view of law as a social system. Luhmann (2004) views society as a whole, however divided
into different systems. The state is such a system that needs clear boundaries to exist (ibid.).
This boundary could suggest that a clear division must be set, both societal and legal, between
members and non-members of the state (ibid.). Further, Luhmann (2004) argues social
systems consist of, and are based on communication-processes. Politics and law could be seen
on as social systems that must deal with each other through a type of communication, and its
functional differentiation characterises the social systems (ibid.). Because social systems are
functionally differentiated and simultaneously characterised by a mutually dependent
communication, it will not be possible for a system to obtain power alone (ibid.). Luhmann’s
approach on the understanding of the relationship between law and politics may suggest that
politics and law have a reciprocal impact on each other. Hence, there exists a relationship
between law and politics. Law is established as a social system which is influenced by, and
dealing with other systems through communication. In reference to this research, both the
politics and law give clarity on how to understand and meet the CRC and its human rights
obligations.

The general understanding is that political and extra-legal factors, and the decision-makers
influence the interpretation of legal texts, including the CRC (Hydén, 1998) This means that
several factors are involved in the interpretation of legal decisions beyond the purely legal
regulation (ibid.). There are several ways to interpret the actual body of legislation (ibid.). In
reference to this research, the Supreme Court’s task was to establish whether a balancing

27
between considerations was established by UNE. An important factor is that decision-makers
are different; that there are significant variations between judges and courts that judge similar
cases is quite convincingly established (ibid.). The balancing of considerations will yield
different outcomes, as there are multiple realities and different ways of interpreting the law. In
view of this research, the interpretations on the best interests of the child establish how
decision-makers are different. The interpretations are a reflection of communicative turns, and
are also influenced by political and extra-legal factors. It is important here to separate between
‘unjust policies and injustices in the implementation of policies’. While juries and judges may
yield unjust verdicts, it does not necessarily follow that the laws the verdict was based on was
unjust (Dahl, 1989; Weiner, 1996:193-194; Hydén, 1998). As such, asylum seekers might get
an unjust decision by the administrative authorities or the Courts, even though the laws that
the decision was based on, is just. In reference to this research, there are many ways of
interpreting legal texts, such as the CRC and the best interests of the child.

28
CONTEXTUAL FRAMEWORK

In the following, the contextual framework is introduced and explained. The contextual
framework forms a basis for understanding the issues that are addressed in the analysis. The
changes in the immigration policy-making in Norway is explained, as it reveals ways in
which Norway has tightened the immigration policy and increased the effort to avoid the
burden of illegal migrants, and because it clarifies the relationship between politics and law
on interpreting the best interests of the child. This is followed by a discussion on the CRC and
on the rights of the child, explaining how the best interests of the child is safeguarded in the
Norwegian legal- and political system.

The Immigration Policy Framework in Norway

Norway is considered a country that demonstrates its commitment to the CRC through
increased extensive legislation (Høstmælingen et. al., 2008, in Vitus and Lidén, 2010). The
CRC also plays an increasingly central role in the Norwegian political rhetoric on
immigration, asylum policy and legislation (Vitus and Lidén, 2010). The political trend in
Europe the past decade has been to focus on the “tightening of controls rather than advancing
individual’s rights” (Smith, 2005). The tightening of immigration policy has undergone
several waves in Europe, and the same is true for Norway (Brekke, 2004).

Changes in the immigration policy-making reveal ways in which Norway has tightened the
immigration policy and increased the effort to avoid the burden of illegal migrants. One
policy initiative concerning longstaying illegal migrants involved the so-called ‘abeyance
children project’. In anticipation of the provisions to the Immigration Regulations, UDI and
UNE were instructed to stop the processing of cases involving children who had been in the
country for three years or more, and who were still in Norway. From 1st of June 2007, the
Immigration Regulations changed, so that children's connection to Norway was given
particular weight in asylum cases. The amendment was forwarded in the current Regulations
§ 8-5 (White Paper no.27 (2011-2012) section 6.4.4). From 2006 to 2009, the number of
asylum seekers in Norway increased from 5300 to 17.200. There was at the same time an
increase of asylum seekers to Europe, but the percentage increase in Norway was about nine
times larger than the increase in Europe collectively (ibid.). There may be several reasons for

29
the much stronger increase in Norway than in the other European countries, but the
amendment of practice for families with children in 2007-2008 have possibly been significant
(ibid.). In connection with the 'abeyance children project' UNE stated that:

"...illegal residence seen in isolation speaks against a permit to be granted, but this
cannot be given decisive weight in the total residence time, which will form the basis
for the assessment of the child's connection to the country...Children cannot be blamed
for the parents’ choice not to abide by the final decision that involves an obligation to
leave the country” (UNE, 2009 Section 7.1.1).

In reference to the cases in this research, this claim can be interpreted as how children cannot
be blamed for the parents’ choice of exceeding the departure deadline. Illegal stay should then
not be given decisive weight when set against the children’s connection to Norway. As will be
shown in the analysis, illegal stay was in these cases one of the decisive factors against
granting the children and their family, residence permit.

Another policy initiative is the International Organisation for Migration’s (IOM) Assisted
Voluntary Return and Reintegration (AVRR) program for asylum seekers and illegal
migrants, which provides beneficiaries for families who contribute to their return. The AVRR
program emerged as a response to the growing tendency of illegal migrants. The aim of the
AVRR program is to achieve “orderly and humane return and reintegration of migrants who
are unable or unwilling to remain in host countries and wish to return voluntarily to their
countries of origin” (IOM, n.d.). In the period from 2005-2011, about 1330 children have
returned voluntarily through the AVRR program.

For the Norwegian Government, the most important measure to prevent children from being
put in a situation of prolonged illegal stay, is an effective return policy (White Paper no.27
(2011-2012) section 1). Families with children must adhere to the obligation to return after a
final rejection, and it is the parents that have the main responsibility for their family's
situation. The choices the parents make will consequently affect the children, but the
Norwegian authorities also have a responsibility to avoid placing families in an unnecessary
and difficult situation (White Paper no.27 (2011-2012) section 6.4.5). The government has
strengthened the work on effective return considerably in recent years, and now wants to
strengthen it further in order to prevent children from being put in a situation of prolonged

30
illegal stay (White Paper no.27 (2011-2012) section 1). Minister of Justice and Public
Security, Grete Faremo, states that “people with a final rejection on their asylum application
for residence permit, should return” (ibid.). In reference to this research, Norway’s changes in
the immigration policy the past decade can be understood as focusing on the tightening of
controls, and moving towards more strict immigration, rather than advancing the rights of the
migrant children.

How Norway takes into account humanitarian considerations on child migrants’ situation,
while maintaining a consistent and coherent asylum and immigration- politics, is a complex
policy issue (White Paper no.27 (2011-2012) section 1.1). The government’s migration and
refugee policy, defined by the political authorities on the basis of national interests and
international and regional obligations, aims for a ‘socially expedient and controlled
immigration’, a ‘humane, solidary and judicially safe asylum and refugee policy’ and a
‘comprehensive, effective and user-oriented immigration administration’ (White Paper no.9
(2009-2010) section 1.1). Hagelund (2003) argues Norway’s relatively strict stand on
immigration, is nonetheless embedded in the language of humanitarianism, regulation,
equality and decency (in Vitus and Lidén, 2010). In reference to this research, Norway’s
changes in the policy-making on immigration shows how politics are influencing the
interpretation of the best interests of the child. The paradox of Western democratic states
apply here, where states need to enforce an immigration control policy that coincides with
normative obligations, while at the same time take into account the interests of the state. The
following section will further explain how the best interests of the child is safeguarded in the
Norwegian legal- and political system.

The Convention on the Rights of the Child (CRC)

On the topic of human rights, and more specifically the rights of the child in an immigration
law context, some themes recur in the current research. These themes are the indeterminacy of
the CRC and the overarching principle Article 3 (1), the role of international human rights
from a national (legal) context, the incorporation of human rights conventions, and the
practice of the international human rights conventions and regulations. These themes are often
discussed interchangeably, which consequently makes it difficult (and not necessarily useful)
to separate between these recurring themes when reviewing the research and the work of
investigation that has been made on the issue.

31
In a number of ways, the CRC marks the culmination of over half a century of international
endeavors to set universal standards within the field of human rights (Alston, 1994). The CRC
is the most widely and rapidly ratified human rights treaty in history and there are only two
countries, Somalia and the United States that have not ratified the CRC (UNICEF, 2005).
Norway ratified the CRC in 1991, and it was later incorporated in Norwegian law through the
Human Rights Law in 2003. A possible reason why the CRC has been ratified by so many
countries can be seen in light of the indeterminacy of its content (Alston, 1994; Brochmann
and Hammar, 1999; Lundberg, 2009; Brekke et. al., 2010; Sahitovich, 2012). There is an
apparent debate surrounding the interpretation of the CRC and the best interests principle, and
despite its generated support, the full complexity of the CRC is often not well understood
(Alston, 1994, Schiratzki, 2000; Noll, 2010). Neither is the overarching Article 3 (1), as
established in the CRC. The CRC Article 3 (1) states that:

“in all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration”.

That the best interests of the child shall be ‘a’ primary consideration, and not ‘the’ primary
consideration, consequently means that other concerns, including immigration control
considerations, can weigh more than the best interests of the child (Parker, 1994:28; NOU
2004:20, p.92). The general understanding is that the balancing between the best interests of
the child considerations and immigration control considerations is value-laden; there is
seldom agreement on what should weigh more (Alston, 1994; Smith, 2005). When the
balancing between these considerations is value-laden, it means that decision-makers will
interpret what is the best interests of the child differently. In reference to the research, the
interpretation of the best interests of the child is an outcome of different decision-makers’
understanding of legal texts and of which considerations they feel should be given the most
weight.

There is a difference between interpreting national laws and international laws. When it
comes to national laws, political, administrative and legal decision-makers can get much
interpretative help from the preparatory works to the Immigration Act. International
conventions, such as the CRC, does not have specific guidelines on how to interpret the

32
Convention and its Articles. In view of this research, it means that states have wide latitude
when it comes to interpreting the content and thus what is in the best interests of the child.
The limited directions on how to interpret international conventions suggest that much of the
interpretation is left to states and national laws rather than decided by international laws and
obligations. The CRC’s- and the overarching principle’s indeterminacy may cause difficulties
for administrative, legal, and political decision-makers when balancing between universal
human rights and the rights of the state to limit migration. The wide space for interpretation is
commented on by Alston (1994), stating that:

“one of the paradoxes of international human rights law is that, on the one hand, the
norms must be sufficiently clear, comprehensive and inflexible to provide the
international community with some basis on which it might seek to constrain a
government which undermines or circumvents minimum standards of decent
behaviour”.

Norms must be clear in order to provide states with directions on how to interpret and practice
the international human rights norms. Any universal treaty that aims to address a wide range
of issues “must also be characterised by a significant degree of flexibility and adaptability”
(Alston, 1994). The indeterminacy of the CRC can be interpreted as a way to include a
number of issues to keep a degree of flexibility, and a way for states to maintain a power to
control immigration. This makes the CRC adaptable to various states, and thus limits the
problems that may occur in the legal integration of the Convention (Hydén, 2008).

Despite its somewhat limited jurisprudential origins, the CRC and the overarching Article 3
(1) has been established in one form or another in many national legal systems (Alston, 1994;
Floor, 2005; Smith, 2005). In Norway, the ECHR and the CRC are incorporated with
precedence over other laws (cf. Human Rights Law § 2 (no. 1-4); cf, Human Rights Law § 3;
cf. Immigration Act § 3). Søvig (2009) argues that, seen in isolation, the convention
provisions will almost never conflict with Norwegian legal rules. That convention provisions
will almost never conflict with Norwegian rules is partly a result of the vague wording in the
treaties (Søvig, 2009). In view of this research, the vague wording leaves much up to each
state’s willingness to make sure that the meeting of the rights of the child is ensured in
practice. The general understanding is that the implementation of the CRC has improved the
rights of the child, but there is no consensus concerning to what degree the best interests of

33
the child is safeguarded (Ellingsæter, 2008; Sandberg, 2008; Vitus and Lidén, 2010; Haugli
and Shinkareva, 2012). Norway tends to be in the forefront when it comes to the child as an
actor with participation rights, and is considered a country that demonstrates its commitment
to the CRC through increased extensive legislation (Bartley, 1998; Kjørholt and Lidén, 2004,
in Vitus and Lidén, 2010).

The securing of children’s rights is also reflected in the level of political engagement in
supporting bodies and systems, such as the CRC and the Ombudsman for Children in Norway
(Lidén, 2004, in Vitus and Lidén, 2010). In Norwegian immigration politics, the CRC has
been a significant part of the negotiations between a restrictive and a liberal asylum policy
(Vitus and Lidén, 2010). The political engagement on the rights of the child is, however, not
always perceived to be administered in practice by the administrative immigration authorities
the way the legislators intended to.

“A review of 300 cases selected by the immigration authorities…for the period of

1998-2003...revealed that caseworkers did not always refer to the “best interests of the
child” standard or made only superficial reference to the Convention on the Rights to
the Child without giving a thorough explanation of how determination was reached
when completing the analysis. The existence of this standard answer increases the risk
of violation of the child’s right to seek asylum, due process, and right to full
consideration of his or her “best interests” as it may be formalistically applied”
(Bailliet, 2003:69-72).

Even though this empirical research study was conducted from 1998-2003, this study
provides basis for inferring that although Norway has a legal basis for making sure the best
interests of the child is secured, there is not always consistency between the intentions and
practice of legal rules and provisions. In view of this research, an interpretation will be
influenced by the decision-makers themselves and their interpretations on how to balance the
rights of the child against other competing considerations.

The Norwegian Immigration Act of 2008, which came into force in 2010, is an important tool
for the legal protection (and practice) of the rights of the child. Immigration Act § 38 states
that:

34
 “a residence permit may be granted even if the other conditions laid down in the Act
are not satisfied, provided there are strong humanitarian considerations or the foreign
national has a particular connection with the realm. To determine whether there are
strong humanitarian considerations, an overall assessment shall be made of the
case...[]. In cases concerning children, the best interests of the child shall be a
fundamental consideration. Children may be granted a residence permit pursuant to
the first paragraph even if the situation is not so serious that a residence permit would
have been granted to an adult...[]”.

The Norwegian Government found it necessary to ensure a more uniform practice concerning
longstaying children’s connection with Norway through a clarification of the Immigration
Regulations § 8-5, stating that “in the assessment of strong humanitarian considerations under
§ 38 of the Act, particular importance shall be attached to children’s connection to the realm”
(Immigration Act § 38, 2008; Immigration Regulations § 8-5, 2009). The incorporation of
particular importance attached to children’s connection with Norway, decreases the
administrative authorities’ room for discretion in cases concerning children than as it would
otherwise be according to Immigration Act § 38. But, even though particular importance shall
be attached to children’s connection to Norway “immigration control considerations can
override other considerations, even in cases concerning children” (White Paper no.27 (2011-
2012) section. 6.4.6). Children with a residence which in itself suggests that residence permit
should be granted will almost always have longer periods without legal residence. The
government finds that the Immigration Regulations § 8-5 must be understood in such a way
that illegal stay and exceeded departure deadline in itself should be given less weight than
active opposition of return when the child’s connection to Norway indicates that residence
permit should be granted. Exceeded departure deadline and illegal residence in this context is
considered as less weighty immigration control considerations (ibid.). In reference to this
research, the interpretation of the best interests of the child will yield different outcomes
depending on how decision-makers balance between the best interests principle, and other
competing considerations. In the following, the rights of the child in a Norwegian political
context are clarified.

The Rights of the Child in a Norwegian Political Context

35
The White Paper ‘Displaced Children’ provides an insight into the political stand on the rights
of longstaying asylum-seeking children in Norway. Explaining the context of the White Paper
is important for this research as it will form a basis for the understanding of the relationship
between politics and law on interpreting the best interests of the child.

In June 2012, the government promoted the White Paper ‘Displaced Children’ to the Storting,
because they saw the need get an overview of key issues relating to displaced children, and to
gain a comprehensive discussion on the topic (White Paper no.27 (2011-2012) section 1.1).
Part of the need to clarify the provisions was because the government argued there was an
inconsistency between the legislators’ intentions and practice when it comes to interpreting
the best interests of the child. A clarification specifically involved the understanding of
children’s connection with Norway in cases where illegal stay is central. UNE was criticised
for overly restrictive practices, where greater emphasis was placed on immigration control
considerations than what was intended of the Immigration Regulations § 8-5 (White Paper
no.27 (2011-2012), section 6.4.6).

During the preparatory work on the White Paper, the Ministry of Justice and Public Security
invited important administrative bodies, ministries and NGOs to come up with suggestions
and comments to the immigration policy that Norway leads. The Ministry opted for an open
political discussion, where various decision-makers could influence the political decision-
making on the immigration policy (White Paper no.27, (2011-2012) section 1.2). The open
discussion reflects a transparency of political processes and a way for representative decision-
makers to equally participate in, and influence the decision-making on Norway’s immigration
policy (Spång, 2008). According to the Minister of Justice and Public Security, Grete Faremo,
the purpose of the White Paper was “to ensure equal treatment and a practice that safeguards
considerations to the best interests of the child in line with the Storting’s intents” (White
Paper no.27 (2011-2012)).

The White Paper received much critcism, and as a response, a number of NGOs came
together and wrote an ‘Alternative NGO Report’. The ‘Alternative NGO Report’ included
proposed amendments aimed to ensure that the White Paper was based on international and
national principles and obligations, including the Immigration Act, the CRC, the Universal
Declaration of Human Rights and other treaties. Some of the key suggestions in the hearing
statement included that the Storting asks the government for a clarification on how the

36
principle the child’s best interests is understood in relation to legal sources, both national and
international, a legal review of the practice of provisions of the Immigration Act to the CRC,
and a clarification of the situation for longstaying children, with and without families (NOAS,
2012). The White Paper was discussed in plenary in the Storting. None of the requests and
proposed amendments were upheld, and so no changes were made to the original White
Paper. In reference to this research, the dissatisfaction with the White Paper that was
expressed, and the ‘Alternative NGO Report’, suggests there are actors in the field of
immigration who disagree with the immigration policy that Norway leads. Furthermore, the
criticism of the White Paper reveals a disagreement between decision-makers on the
interpretation of the best interests of the child by the politicians. The expressed
discontentedness supports the claim that there is no consensus on how the balance between
substance- and procedural criteria for democratic legitimacy should look. In the following, a
short introduction to the plenary Supreme Court judgments is presented.

The Plenary Supreme Court Judgments

The 21st of December 2012, the Supreme Court assessed the validity of two asylum cases,
Verona Delic and family and Hossein Shabazi and family against the State by UNE. The
plenary Supreme Court judgments broadly concerned three main issues: should the Court
assess the cases using a ‘present time assessment’?, were the decisions made by UNE in
accordance or in conflict with current law, especially the CRC?, and was there a judicial basis
to intervene in the considerations UNE had undertaken between the various relevant
considerations? (Langbach, 2013).

The plenary Supreme Court judgment on the case Hossein Shabazi and family against the
State by UNE concerned the validity of a negative decision on an application for asylum
based on humanitarian grounds for an Iranian family that had stayed in Norway for a long
time without legal residence permit (case 2012/688). The family sued, alleging that the
decision of not granting the family residence permit based on humanitarian grounds was
invalid (case 2012/688). The family lost against the District Court and the Court of Appeal.
For the Supreme Court, the main issues concerned the interpretation of Immigration Act § 38
regarding residence permit based upon strong humanitarian grounds or connection with
Norway and of the CRC Article 3 (1) of acting in the best interests of the child. A majority of

37
fourteen judges found the decision to be valid. Five judges found the decision to be invalid
and in conflict with the CRC Article 3 (1).

The plenary Supreme Court judgment on the case Verona Delic and family against the State
by UNE concerned the validity of a denial to reverse a negative decision based on
humanitarian grounds for a Bosnian family (2012/1042). The case was assessed by the
Supreme Court together with the case 2012/688. UNE did not find basis for granting the
family residence based on humanitarian grounds. The case did not win against the District
Court or the Court of Appeal. A majority of the Supreme Court, fourteen judges, found the
decision to be valid, while five voted the decision to be invalid. In addition to the questions
that were raised in both cases, it was in this case also made a claim for declaratory judgment
for the violation of ECHR Article 8 and Article 3 (1) of the CRC. The State by UNE was
acquitted of the contention.

The majority of the Supreme Court judges concluded that it is the situation at the time of the
decision the Court must base their evaluation on, unless otherwise provided by law
(Langbach, 2013). The judgments are therefore not assessed from a ‘present time assessment’,
which means that the Supreme Court assesses the validity of UNE’s decisions from the time
the decision were made. Using the time when the administrative authority made their
decisions, the Courts can verify whether administrative decisions are in accordance with
current law, including statutes, regulations and conventions, if the case processing have errors
of importance to the decisions’ content and if it otherwise have been committed errors
(Einarsen, 2008). The Courts cannot overrule the specific considerations in the decisions, put
simply, whether the decisions are reasonable or fair (ibid.).

Concerning the question whether UNE’s decisions violate the Immigration Act and the CRC,
particularly Article 3 (1), the Court’s task is

“to control the administration's overall understanding of the concept of the best
interests of the child on the relevant subject matter, and to ensure that considerations
are properly considered and weighed against potential opposing considerations”
(2012/688 section 146).

38
The Court’s task is to assess whether it is clear from UNE’s decisions that the best interests of
the child is taken into account as a primary consideration, and the Court have authority to
overrule whether the best interests of the child principle is properly weighed against other
considerations. The actual weighing of interests however, cannot be overruled by the Supreme
Court, this is attributed to the immigration authority UNE (Langbach, 2013) whose task is to
administer the politics (Hydén, 2008).

Regarding the issue raised in the Supreme Court concerning who should make these
assessments, the administrative authorities or the courts, is an issue that concerns what role
the courts should play (Langbach, 2013). The minority of judges provides a comprehensive
justification for how this could have been solved, which is rather different than the
evaluations made by the majority (Langbach, 2013). This will be further explored in the
analysis.

The two asylum cases were discussed in plenary in the Supreme Court by nineteen judges. In
relation to the objectives and the research question of this research, the same arguments are
asserted in case 2012/1042 as in case 2012/688 (stated in 2012/1042) hence, the analysis
refers to case 2012/688. The 2012/688 judgment is structured so that three judges have
elaborated in detail their interpretations on the case, while the other sixteen judges have stated
their interpretation by agreeing with any of these three judges, stating ‘likewise’. These
judges are referred to as ‘the first voting judge’, ‘the second voting judge’ and ‘the third
voting judge’.

39
ANALYSIS

In the following, the research question how the best interests of the child has been interpreted
in the plenary judgments, will be clarified. The analysis is broken into two main discussions
in order to explain the two main objectives of the research. The first explores the nature of the
relationship between international law and national (Norwegian) law, which is further broken
into a discussion on a ‘present time assessment’ and the ‘wide space for interpretation, with
the aim of answering how Norway are balancing procedural and substance values. The second
discussion concerns the relationship between politics and law. The following subsections
‘decision-makers and their (power) position, ‘the best interests of the child versus
immigration control considerations’, ‘connection to Norway versus illegal stay’, and ‘the best
interests of the child versus general prevention considerations’ are examined, with the
objective of explaining the relationship between politics and law.

The Nature of the Relationship between National Law and International Law

A ‘present time assessment’

The evaluation of a ‘present time assessment’ concerns whether the Supreme Court has the
right and the obligation to take into account facts that have occurred after UNE has reached a
decision. The Court’s legal practice is a central starting point for the assessment, and previous
judgments are therefore discussed by the judges. Through a discussion of the Court’s legal
practice, the majority of judges concluded that the Court should not assess the validity of
UNE’s decisions using a ‘present time assessment’. Had the majority of judges decided to
evaluate the cases using a ‘present time assessment’, it might have changed the judgments
that were reached, as a ‘present time assessment’ would further increase the children’s
connection to Norway. With a ‘present time assessment’, the Court could have assessed the
validity of the decisions on the basis of the connection the children have to Norway rather
than the connection they had at the time the decisions were made. The third voting judge
argues:

“a ‘present time assessment’ would mean that the Supreme Court’s case-practice will
certainly be more extensive, as the parties must also prepare the case for a possible
decision on the merits (cf. Rt. 2001 p.995 and p.1003). The state has made it clear that

40
 this consideration weighs against giving courts the right to build on subsequent facts
[rettsfakta]. These are facts that are vital in order to achieve the most fair and just
decision” (2012/688 section 239).

The interoperation of the relationship between national law and international law on the best
interests of the child is explained by the second and the third voting judge. To achieve the
most just decisions, the third voting judge argues that the assessment of UNE's decisions must
be based on existing facts at the court proceedings. According to the third voting judge, “the
general rule for judicial assessments of administrative decisions must be based on the facts
that exist at the time the matter is taken up for adjudication” (2012/688 section 216), and not
only in immigration cases. The second voting judge’s argument for ‘a present time assessment
is based on the execution of Norway's human rights obligations and with the international
enforcement of international laws (2012/688). The second voting judge states that:

“a ‘present time assessment’ by the Courts is the solving that best safeguards the
consideration to make sure the judgment in an immigration law context is in
accordance with Norway’s human rights obligations” (2012/688 section 177).

These human rights obligations Norway has committed itself to, are best safeguarded if the
courts can judge cases from a ‘present time assessment’. The second voting judge argues that
“when the ECtHR try out [prøver ut] human rights considerations from a ‘present time
assessment’, it may imply that Norwegian Courts shall do the same” (2012/688 section 83-
84). The second voting judge states that:

“from the Convention’s [EHRC] system and its presumptions about the interoperation
between national courts and the ECtHR, it is in my view unsatisfactory if the national
court’s judicial review has a more narrow horizon or is less thorough than any
subsequent judicial review by the ECtHR” (2012/688 section 178).

For the third voting judge, the national courts’ legal practice should be in accordance with
international courts’ legal practice, and judge cases from a ‘present time assessment’. Using a
‘present time assessment’ would have taken into account the children’s increased connection
to Norway since UNE’s decisions were made, and would suggest a stronger case for granting
residence permit. The second- and third voting judge’s interpretations of whether the Courts

41
have the right and the obligation to judge cases from a ‘present time assessment’ suggests a
‘present time assessment’ best safeguards international human rights norms. That the Court
did not judge the asylum cases concerning the interpretation of the best interests of the child
from a ‘present time assessment’, suggests the balancing between procedural and substance
criteria is largely managed by national laws.

The majority of judges reached a different conclusion. The first voting judge finds that
“neither the CRC nor the ECHR demand that the Courts must undertake a ‘present time
assessment’ in the evaluation of administrative decisions” (2012/688 section 83). The first
voting judge argues “the Supreme Court’s case law is clear on the fact that the Supreme Court
will assess cases from the time the decisions were made, unless otherwise follows as an
interpretation of the law” (2012/688 section 79). Together, the ECtHR judgments that were
presented in the plenary judgments are argued by the first voting judge to show that (cf. Kudla
v. Poland section 157, Kuric and Others v. Slovenia Section 369, Maslov v. Austria Section
93)

“although new circumstances invoked must be tested, it is not required that it is the
Courts that must do it. It is up to each state to decide how to organise the assessment
in a safe and proper manner” (2012/688 section 87).

The general rule is that the Court does not pass a judgment, but content themselves to find the
decision either valid or invalid (2012/688 section 96). The third voting judge argues that:

“when a case is judged to be invalid it must be reevaluated by UNE regardless, so a

potential judgment of invalidity based on alleged new circumstances only implies that
UNE gets a duty to consider a request for conversion when new legal facts are
invoked” (2012/688 section 96).

Moreover, the first voting judge argues that:

“UNE’s treatment of the cases meets the requirements that are demanded of an
effective assessment of rights before a national authority, as the requirements are set
out in the ECtHR’s practice. UNE is to be regarded as a Court according to the
ECtHR’s system, and UNE’s decisions are based on a ‘present time assessment’. The

42
 administrative immigration authorities also have a duty to treat new conditions that get
invoked. Even beyond asylum cases, it is clear that UNE has a duty to treat a request
for conversion2 if there is a real risk of human rights violations. This ensues from the
state's duty to prevent violation of human rights obligations. It is difficult to see what
further legal protection can be achieved if the Court first determines that new
circumstances are relevant, and thereby finds the decision invalid” (2012/688 section
88).

For the first voting judge, and in line with the majority of judges, a change of the Court's role
will not improve the protection and meeting of the child’s rights. From international
conventions and bodies, including the ECtHR, Norway upholds the human rights obligations.
It is up to each state to decide which ‘authority’ that will ensure that a case gets the effective
remedy it is entitled to (2012/688 section 84), which suggests that states have a wide latitude
when it comes to interpreting the understanding and practice of international laws, including
the CRC. UNE is the authority that ensures that a case gets the effective remedy it is entitled
to, and UNE’s treatment of cases “meet the requirements that are demanded of an effective
assessment of rights before a national authority” (2012/688 section 88). From what is
expressed in the plenary judgments, there is disagreement between the judges on the nature of
the relationship between national law and international law on the best interests of the child in
an immigration context. On the basis of what the minority of the judges express, one could
infer that states seem to lean on national laws rather than international laws. How the judges
have interpreted the issue ‘present time assessment’ was of importance, since a ‘present time
assessment’ would further increase the children’s connection to Norway. A stronger
connection to Norway adds weight to considerations relating to the best interests of the child
when balanced against other competing considerations. The judges’ different interpretations
on the matter support the claim that there are many ways of interpreting legal texts.

In the following, the effect of international human rights treaties’ indeterminacy will be
clarified.

2
A request for conversion is a request for a change in the asylum decision, written by lawyers, NGOs or the
asylum seekers themselves (NOAS, 2012).

43
The wide space for interpretation
The plenary judgments reflect a globalisation of basic democratic principles. The
globalisation of basic democratic principles is evident by how the plenary judgments refer to
human rights conventions and bodies, such as the CRC, the ECHR and the ECtHR. The
judges’ reference to international law supports the claim that international human rights
treaties are established in one way or another in legal systems, such as in Norway’s
Immigration Act and the Immigration Regulations. Although the plenary judgments refer to
international human rights law, the balance between the best interests of the child
considerations and immigration control considerations seems to be managed to a larger degree
by states as a consequence of the indeterminacy of international human rights laws. This is
expressed in the plenary judgments. The first voting judge expresses that “there is a wide
space for interpretation of the CRC and Article 3 (1)” (2012/688 section 127) and that “the
best interests of the child is ambiguous” (2012/688 section 111). The indeterminacy of the
CRC and the best interests principle could be explained by how international human rights
treaties do not provide any clear guidelines on how states should interpret the conventions.
Vague guidelines means that states have wide latitude when it comes to interpreting what is in
the best interests of the child. The states’ wide space for interpretation supports the claim that
international laws’ level of influence is limited by its indeterminacy. The wide space for
interpretation further supports the argument that the balancing of considerations is to a great
extent managed by states. The international treaties’ vague wording limits its power to take
part in deciding how the best interests of the child in the field of immigration should be
interpreted.

This wide space for interpretation is also expressed in the plenary judgments by the way the
judges interpret the best interests of the child differently. The judges’ interpretation of the
rights of the child is divided, and the plenary judgments do not provide one answer
concerning what is in the best interests of the child. The different interpretations supports the
view of the balancing of considerations between the best interests of the child and
immigration control considerations as value-laden, meaning that the balancing is rarely agreed
upon. That there are many ways to interpret legal texts is expressed in the plenary judgments
by the dissent. The dissent in the plenary judgments demonstrates that the judges disagree on
what is the best interests of the child. For the first voting judge, and the majority of judges,
UNE’s balancing between the rights of the child and immigration control considerations is
done in a considerable manner (2012/688 section 165). In these asylum cases, procedural

44
criteria are decisive, and immigration control considerations outweigh the rights of the child.
The first voting judge expresses that “immigration control can be decisive in the balancing of
considerations, even when weighed against human rights considerations such as the best
interests of the child” (2012/688 section 134). That immigration control considerations can be
decisive seems to suggest that if UNE’s weighing of considerations is validated, then both a
granting and a rejection of a residence permit, as established in law, is justifiable (Søvig,
2009). That both a granting and a rejection of residence permit can be justifiable, is because
the national courts cannot try out [prøve ut] UNE’s weighing of interests, put simply, whether
the decisions were fair and just. One way of interpreting this argument is that, independent of
the balancing between procedural and substance values, procedural values in the form of
states’ political instructions and regulations, could in a way almost always justify a judgment.
That immigration control considerations can always be decisive against the rights of the child,
could suggest that states want to secure their power to control immigration. Here, it must be
emphasised that although the minority of judges find the judgments unjust, it does not
necessarily follow that the judgment is based on unjust laws (Dahl, 1989; Weiner, 1996:193-
194; Hydén, 1998). When it is established in national law that immigration control
considerations can weigh more when balanced against the rights of the child, the plenary
judgments can be justified.

In the following, the relationship between politics and law in the Supreme Court context will
be clarified.

The Relationship between Politics and Law

Decision-makers and their (power) position

The Supreme Court expresses a reciprocal relationship between law and politics when it
comes to interpreting the best interests of the child in an immigration law context. That there
is a reciprocal relationship between politics and law is established in the theoretical
framework (Shapiro, 2002; Luhmann, 2004; Hydén, 2008). The Court, as its own legal
system, is not entirely independent of social and political systems (Hydén, 2008; Shapiro,
2002). Legal norms, such as the rights of the child, are not only managed by laws, but are also
influenced by political and extra-legal factors. In the Supreme Court, the best interests of the
child is secured through a clarification of laws. The clarification of laws is expressed in the
plenary judgments by how the judges, through previous judgments and legal acts, clarifies

45
what should lie behind an interpretation of the best interests of the child (2012/688 section
102; 105; 111). The national courts will ensure that the international and national laws that are
established in national law are upheld, and can intervene if a statutory provision is in conflict
with the CRC or other treaties (2012/688; 2012/1042). Ensuring that international and
national laws are upheld is expressed in the Supreme Court by how the judges assess whether
UNE’s decisions are in accordance with current law, and has balanced between the best
interests of the child considerations and immigration control considerations in a lawful
manner. How to argue that the best interests of the child is influenced by politics is because
much of the decision-making on the best interests of the child are entrusted to administrative
immigration authorities through instructions forwarded by the politics. That the politics partly
manages the best interests of the child is expressed in the plenary judgments by how judges
refer to, and lean on guidelines from preparatory works, White Papers and the Immigration
Regulations. That the political system partly manages the rights of migrants is expressed by
the first voting judge, citing the White Paper no. 75 (2006-2007) which states that:

“according to the Immigration Act § 75 first paragraph, the Storting must approve the
main principles for the regulation of immigration. The provision was proposed omitted
in the new Immigration Act, but was retained so that there was no doubt about the
Storting’s influence over the regulation of immigration” (2012/688 section 107).

Furthermore, the first voting judge cites Immigration Act § 1 which states:

“the Act shall provide the basis for regulating and controlling the entry and exit of
foreign nationals and their stay in the realm, in accordance with Norwegian
immigration policy and international obligations” (2012/688 section 109).

The Storting has an authority to influence the control of immigration, and the Immigration
Act will ensure that Norway’s immigration control policy and international obligations are
safeguarded. The politicians also give instructions to the administrative immigration
authorities in their directives and regulations on how the principle should be interpreted. Since
the Supreme Court cannot try out the administration’s free use of discretion on the best
interests principle, the Court’s role in this context is to make sure that the balancing of
interests on the rights of the child has been done in a proper manner by the administrative
immigration authorities (2012/688; 2012/1042). The Court cannot overrule the specific

46
considerations in the decisions; put simply, whether the decisions are reasonable or fair
(2012/688 section 142). The authoritative power of political representatives to influence the
interpretation of the best interests of the child, which is executed by administrative
authorities, suggest politics also gives content to the best interests of the child. Since the
politicians give instructions to the administrative immigration authorities on how the principle
should be understood and assessed, one may argue that the protection of the children’s human
rights is partly managed by politics.

As it may seem that both law and politics influence the understanding of the best interests of
the child, it could be argued that there is a reciprocal impact between law and politics that is
expressed in the plenary judgments regarding how the best interests of the child has been
interpreted. Interviewee 2 puts forward a different circumstance of the relationship between
politics and law and states that:

”they [the government] would not write a regulation on the balance between
immigration control considerations and the best interests of the child considerations.
They did not want to specify what lies behind the relationship between these
considerations. The government handed over the cases to the Supreme Court instead
of making a political decision…The evaluation of what is in the child’s best interests
turned into a clarification concerning the legal standard, which is much more limited
than the extra-legal standard”.

Interviewee 2 argues that the government could have turned the understanding of the
balancing between immigration control considerations and the best interests of the child
considerations into a political matter, through changing the laws or regulations. Leaving the
clarification between the considerations up to the Supreme Court, turned the asylum cases
into a clarification concerning the legal standard, which is more limited than the extra-legal
standard. That the understanding of the best interests of the child was decided in the Supreme
Court could possibly be interpreted as an intentional delegation to the courts by the
politicians, through reducing risk to themselves by shifting responsibility upon the courts to
avoid difficult decisions, and to avoid taking a stand on what should lie behind these
competing considerations. It could also be to avoid obstruction to the policy agenda of
upholding a restrictive immigration policy. The reciprocal impact between law and politics on
giving content to the best interests of the child could here be interpreted as a way for

47
politicians to escape responsibility and to avoid specifying what lies behind the balance
between the best interests of the child considerations and immigration control considerations.
What consequences this could have in real life is a judicialisation of international relations,
which is defined here as the political reality where “courts gain authority to define what the
law means” (Alter, 2011). However, the fact that the cases are addressed by the Courts, as
pointed out, does not necessarily mean that courts have gained greater importance or power
(Andenæs, 2006). Not specifying what lies behind the balance between these interests could
be a way to ensure the individual and subjective assessments are completed in each asylum
decision.

The understanding that the cases were addressed in the Supreme Court as a way for
politicians to avoid specifying what underlies the relationship between the best interests of the
child considerations and immigration control considerations was not shared by interviewee 3,
who adds further comments:

“Yes, it is true that the best interests of the child is not only decided by law but also by
the politics. However, the Immigration Act § 38 is a ‘may-provision’ which gives
UNE freedom to balance between considerations. It is also important to emphasise
that if the Storting had not agreed with UNE’s practice, then the Storting would ask
the government to make changes to the laws or regulations. The Storting is pleased
with UNE’s administration of the politics, except from a small part of UNE’s practice.
A White Paper such as the Paper on ‘Displaced Children’ has great significance, but
not as great as a change in laws or regulations. Had the Storting disagreed with UNE’s
practice, they would have made changes to the laws and regulations [rather than
writing the White Paper report]”.

These two claims suggest that there are differing opinions on the relationship between law
and politics. It may be difficult to draw any definitive remarks on how the relationship
between politics and law look. However, one might argue that in the Supreme Court, there
exists a reciprocal relationship between law and politics regarding who provides content to
the best interests of the child. This is in line with previous research stating that there are
different opinions on how the relationship between politics and law look (Shapiro and Sweet,
2002).

48
In the following, the relationship between politics and law will be explained in context to the
balancing between the best interests of the child considerations and immigration control
considerations.

The best interests of the child considerations versus immigration control considerations
The balance between politics and law is expressed in the plenary judgments through a
discussion where the judges balance between competing considerations. The best interests of
the child is an overarching principle and includes the consideration of the child’s connection
to Norway. Immigration control considerations include among other considerations illegal
stay and general prevention considerations. The first voting judge states that:

“the central competing considerations in these plenary judgments are the best interests
of the child and immigration control considerations. Both considerations are discussed
in the preparatory works, which show how difficult it is to balance between these
considerations” (2012/688 section 110).

The judges have had to balance between competing considerations when assessing the
validity of the two asylum cases. When two legal norms, such as the best interests of the child
and immigration control considerations compete in one way or another, one legal norm’s
argumentative power may be restricted (Hydén, 2008). The plenary judgments express a
balance between immigration control considerations and the best interests of the child. The
majority of judges agreed with UNE’s balancing of considerations, and found that
immigration control considerations was decisive against the best interests of the child
(2012/688 section 163). In reference to this research, when the majority of judges found
UNE’s decisions to be valid, it may be a consequence of contending legal norms where illegal
stay and other immigration control considerations were considered as decisive against the best
interests of the child, and connection to Norway. When two competing legal norms are set up
against each other, the argumentative power on the rights of the child might have had to give
way when upholding the legal norm of immigration control considerations. This means that
the legislators’ intentions on securing the rights of the child could perhaps then not have been
practiced to such an extent as established in law. It further supports the claim that substance
and procedural criteria in one way compete for argumentative power. The tension between
these criteria is expressed in the plenary judgments through the different interpretations

49
concerning the balance between the rights of the child and the rights of the state to limit
migration.

Connection to Norway versus illegal stay

It is inter alia a general understanding that a child should not be punished for the situation the
parents have brought them in (2012/688 section 113). As a result of the parents’ choice of
exceeding the departure deadline and staying illegally, the children have gained a strong
connection to Norway. A child’s connection to Norway is almost always a result of illegal
stay. When the parents exceed the departure deadline, it could be because the parents consider
it to be safer for the children to stay illegally in Norway than to return to their home country.
In the Supreme Court, the judges have had to balance between the children’s connection to
Norway, and illegal stay. This tension that is expressed in the plenary judgments between
these considerations was also established in the interviews. Interviewee 1 states that:

“parents do everything they can to stay in the country and think they are doing what is
best for their children. Yet research suggests that many children suffer as a
consequence of living in uncertainty for several years in reception centres”.

The tension concerning the balance between substance- and procedural criteria for democratic
legitimacy is apparent from the interviews and from the plenary judgments. How the Supreme
Court judges navigate between the rights of the child (substance criteria) and the rights of the
state to limit migration (procedural criteria), is of interest as it establishes what is given more
weight. For the first voting judge, and for the majority of judges, UNE’s decisions are
consistent with current law, including the CRC Article 3 (1) (2012/688 section 165). That the
majority of judges argue that UNE’s decisions are valid, means that they find that the
competing considerations in these two cases are balanced in a justifiable manner, independent
of whether the judges agree or not with UNE’s weighing of considerations. The first voting
judge states that when the parents’ illegal stay are given more weight than children’s
connection to Norway, it involves how children cannot be judged in isolation from their
parents’ illegal stay (2012/688 section 114 and section 133). The first voting judge argues “it
concerns that the child could easily be used as a means by their parents as a way to obtain a
residence permit by not following up the obligation to leave the country” (2012/688 section
133). Immigration control considerations in terms of illegal stay can be decisive against the
best interests of the child. Immigration control considerations can weigh more, as a way to

50
protect the child from being exploited as a means for granting residence permit. First voting
judge also cites governmental papers and argues that while the CRC Article 3 (1) is the
overarching principle, other Articles might conflict with the argument that the best interests of
the child would be to grant the families residence permit (2012/688 section 111). Living in
Norway might not be viewed as the only option. Family roots and heritage justify and protect
the child from being used as a means for obtaining residence permit (2012/688 section 111).
The understanding of what is in the best interests of the child was also expressed in the
interviews. Interviewee 2 holds that:

“the understanding requires an individual and an overall assessment. The

understanding invites a number of factors. The child’s connection to the country is
defined in a special way. There are certain things that are relevant, such as language
comprehension, age, and the formation of social networks, but also the connection to
the home country”.

Although the living standards in Norway might be better than the living standards in the
asylum-seekers’ home country, it does not necessarily follow that it would be in the best
interests of the child to grant the child (and the family) residence permit (White Paper no. 75
in 2012/688 section 111). An argument posed by interviewee 1 challenges the argument
concerning age as a defining factor in the understanding of the best interests of the child.
Interviewee 1 states that:

“it is assumed that young children have more attachment to parents than to the
community, school, friends, the Norwegian language, and more...it's possible to argue
that children who are considered to have strong ties to Norway also may connect to
society in the same way as older children”.

The argument suggests that it is possible to argue that young children, which are assumed to
have more connection to their parents, like with these cases, could have just as strong
connection to the country as older children (2012/688 section 156; 164). This adds weight to
the best interests of the child considerations in the balancing against immigration control
considerations. The second voting judge finds that UNE’s decisions violate the rights of the
child, and argues that:

51
 “it cannot be the case that the stronger the connection to Norway, the stronger the
immigration control considerations get, which speak against granting a residence
permit. In that way, the increased connection to Norway is ‘zeroed’ out” (2012/688
section 208).

In the plenary judgments, immigration control considerations in terms of the severity of

illegal stay takes precedence, which suggests the increased connection to Norway is ‘zeroed’
out. It is not enough that the children's connection to Norway in itself (as is clear from UNE’s
decision in case 2012/688, but unclear in case 2012/1042) suggests that a permit should be
granted. The majority of the judges find that the children do not have any independent right to
residence when their parents have violated the Norwegian law by staying illegally and not
upholding the departure deadline. In reference to this research, by interpreting the law in that
way, one could argue that the plenary judgments mirror Norway’s immigration policy as the
verdicts reflect Norway’s political priorities and obligations. It appears as if the political
priority of avoiding illegal and longstaying migrants, and the parents’ choice of not adhering
to national laws and rules, outweighs the best interests of the child and the children’s
connection to Norway. The majority of judges agree with UNE’s decisions that “[in a case
like this] immigration control considerations must weigh more and take precedence over the
consideration concerning the child’s connection to the realm” (2012/688 section 163). That
immigration control considerations must weigh more seems to reflect Norway’s immigration
policy which is established as relatively strict, but nevertheless committed to the human rights
obligations such as the CRC through extensive legislation (Høstmælingen et. al, 2008, in
Vitus and Lidén, 2010). That immigration control considerations can be decisive against the
rights of the child also suggests states want to secure their power to control immigration. In
addition, the fact that immigration control considerations is decisive as a result of the parents’
choice of exceeding the departure deadline and thus staying in Norway illegally, further
supports the claim that both a granting, and a rejection of residence permit can be justifiable if
UNE’s weighing of considerations is validated. Furthermore, the best interests of the child
considerations against competing considerations are interpreted differently in the plenary
judgments. For the minority of judges, UNE’s decisions are not in line with the political
guidelines on how to assess children’s connection to Norway as a result of illegal stay. On the
basis of the interpretations of the minority of judges, it is possible to argue that the political
intentions on safeguarding the best interests of the child have not been administered by UNE.
The wide space for interpretation of the CRC and the best interests of child might have

52
opened up the possibility for illegal stay to be decisive against the children’s connection to
Norway.

The best interests of the child versus general prevention considerations

General prevention considerations means that the judges consider how much the judgments
will deviate from political priorities (cf. Immigration Act 38), and possible effects of the
judgments for future practice (2012/688; 2012/1042). The first voting judge states that when
assessing the best interests of the child in a case, it cannot be seen in isolation, but must be
assessed on the basis of general prevention considerations (2012/688 section 114-115). When
judges cannot assess cases without taking into account the possible effects of the decision for
future cases, it includes an taking into account whether a decision which is beneficial to one
child can lead to other children being exploited by their parents who have a strong desire to
ensure the family residence permit (2012/688 section 114). Concerning the possible effects of
granting residence permit, the first voting judge states that:

“a number of immigration control considerations are cited from the Immigration Act §
38 fourth paragraph. By letter a, it is possible to place emphasis on consequences for
the scope of applications on similar grounds. This means that the weight of
immigration control considerations will vary...The consequences of a decision will
therefore be central to the weight that should be given to immigration control
considerations” (2012/688 section 117-118).

Regarding the consequences for the scope of applications on similar grounds, the first voting
judge argues:

“this must be seen in context with the principle of equality in the Norwegian
government administration [forvaltning]. When a residence permit is granted in one
case, this implies that other similar cases also must be granted a residence
permit...This means that the less impact the granting of a residence permit has for
other cases, the larger the room for discretion will be to focus on individual
considerations” (2012/688 section 118-119).

That similar cases should be treated equally is further supported in the interviews.
Interviewees 1 and 2 maintain that:

53
 2:“I suppose similar cases require equal treatment. If you say 'yes to them' you have to
say yes to all the other cases that are similar. [The balance] it depends on how much
precedence a case will have”.

1:“the children’s situation is politically defined. Similar cases are treated equally, and
therefore it is unlikely that the so-called ‘ordinary’ cases will get a residence since the
cases will have precedence for future similar cases. It is a general deterrent provision.
More ‘unique’ cases have a greater chance to get residence permit”.

When it is possible to place emphasis on consequences for the scope of applications on

similar grounds, it means that granting residence permit to a ‘unique’ case will have less
effect on the immigration flows and the number of asylum applications Norway gets than an
‘ordinary’ case. The first voting judge cites the White Paper no. 75 (2006-2007) where it
states that:

“if granting residence does not provide potential increased influx of any significance,
or have special implications for other cases that are waiting for a decision, there may
be a wider space for granting residence than in cases where immigration control
considerations prevail” (2012/688 section 117).

Large flows of immigration to Norway are thus considered a problem for the immigration
policy. The Immigration Act should make sure the influx of migration is controlled, and that
it is in concordance with Norway’s immigration policy (and international human rights
treaties) (2012/688 section 109). The control of immigration reflects a state’s consideration of
possible threats and consequences of granting residence permit in a case which is not
considered as ‘unique’. The consequence could be that the normal situation is that asylum-
seeking families with children with a certain period of residence in Norway would have to be
granted a stay based on humanitarian grounds, and in this case connection to Norway. Since
the cases in the plenary judgments are not considered ‘unique’, granting a residence permit
according to the principle of equality could imply that a lot more families with children, and
with illegal stay in Norway, would also have to be granted residency. It could also suggest
that Norway reward illegal stay, meaning that the longer asylum-seekers stay illegally, the
more connection they will get to the country, and the greater the chance is of granting

54
residence permit. Concerning how illegal stay should not be rewarded, first voting judge cites
the White Paper no. 75 (2006-2007) p.166):

“a violation of the obligation to leave the country constitutes a violation of the

Immigration Act which may result in both a penalty and a deportation. It will send
conflicting signals if one operates with ‘fixed arrangements’ so that a residence permit
still can be granted in such cases. It will also be perceived as unfair in relation to those
who comply with the obligation to leave the country” (2012/688 section 120).

Granting residence permit to asylum-seekers that have exceeded their departure deadline
would go against Norway’s political priorities because

“when the different considerations that are relevant are weighed against each other, the
department still believe it is necessary to keep a restrictive policy in relation to those
who do not cooperate to a return” (2012/688 section 129).

Norway, through an effective return policy, wants to avoid illegal migrants and longstaying
children. Being that the judgments had relevance for these two families, but also for
approximately 500 other asylum-seeking children, granting residence permit could have
implications for future decisions and flows of migration. In reference to this research, it could
be argued that the majority of judges’ interpretation of the law reflects the immigration policy
Norway leads, being in correspondence with the strict immigration policy, while
simultaneously embedded in the rhetoric of humanitarianism and equality between people.
That the plenary judgments mirror the political priorities further supports the claim that there
is a reciprocal impact between politics and law where both systems can be said to be
managing how the best interests principle should interpreted.

In the following, a discussion concerning how changes in the circumstances for children (by
focusing more on substance criteria) may also have its limitations for ensuring the rights of
the child, will be explained.

55
DISCUSSION

Through an analysis of two Supreme Court judgments, it becomes clear that the interpretation
of the best interests of the child have been interpreted differently by the judges. More
specifically, there are differences between the judges concerning how they have struck a
balance between the rights of the child (substance criteria), and the rights of the state to limit
migration (procedural criteria). Certain conclusions can be drawn from the document research
analysis on the plenary judgments and from the elite interviews, but first a discussion will be
put forward, which focuses on how changes in the circumstances for children by focusing
more on substance criteria, may also have its limitations for ensuring the rights of the child.

A possible circumstance which might strengthen asylum children’s legal security would be
more influential universal human rights treaties. More influential human rights treaties means
that the obligations followed from ratifying and establishing human rights conventions and
treaties would have to become more concrete. Making the universal human rights guidelines
more specific could be one incentive to further ensure the best interests of the child (Søvig,
2009). Making guidelines more specific could possibly make those countries that have ratified
and implemented the conventions, regulations and treaties more similar when it comes to the
relationship between international- and national laws, and there would be fewer disparities
between countries. More similar practices would entail a more universal interpretation on the
rights of the child. Additionally, more specific guidelines would entail that states would have
less discretionary power to interpret international treaties such as the CRC. A tightening of
nation-states’ interpretative power would mean that political decision-makers, as
representatives for the members of states, have less power to control immigration, and there
would be less room for discretion when interpreting the best interests principle (Hydén,
2008). International treaties would have more power to influence states’ balancing between
the rights of the migrants and the rights of the state and its members to regulate immigration
(ibid.). However, it is important to emphasise the recognised advantages of the wide space for
interpretation of human rights treaties, including the CRC. As previous research suggest, a
wide interpretation of the best interests of the child opens up for taking into account culture
and local customs and account for a wide area of issues relating to the best interests of the
child (Schiratzki, 2003; Alston, 1994). A possible consequence of more influential
international treaties, and thus the tightening of states’ rights to control immigration, would be
56
that fewer states would sign and ratify the human rights conventions as a ratification limits the
states’ decision-making power (Alston, 1994). This is similar to what Alston (1994) referred
to as the paradox of universal human rights. In reference to this research, the problem is
perhaps not the legal security of the best interests of the child, but rather that there needs to be
enough will to promote the best interests of the child and to focus on meeting the substance
criteria for democratic legitimacy. From the analysis, and in line with previous research, it
becomes clear that the issue lies not with the legal protection of the best interests principle, as
the best interests of the child is well established in Norway’s legal- and political system.
There is however, recognised an inconsistency between legislators’ intentions and practice on
the best interests of child.

A possible solution on how to minimise the inconsistency between legislators’ intentions and
practice on the best interests of the child, and so strengthen the rights of the child, is to make
sure there are measures available to ensure the enforcement of children’s rights, and to ensure
that the current laws are effectively translated into practice (UNICEF, 2012). Although the
Ombudsman for Children works as a watchdog, Norway has inadequate supervisory
mechanisms to ensure that practice (not law) is compliant with the CRC (UNICEF, 2012;
Søvig, 2009). The UN Committee on the Rights of the Child (Children Committee) is
appointed to monitor states' supervision of the CRC. The supervision of the CRC is based on
what the states report to the UN in their reports. On the basis of reports and subsequent
sessions and discussions, the Children Committee prepares reports3 with concerns and
recommendations to the individual state (Søvig, 2009). These recommendations are not
legally binding (ibid.). The extent to which states comply with the CRC ultimately depends on
the individual state's ability and willingness. For the Children Committee’s reports to become
more influential, it entails a change of legal source material, such as the preparatory works to
the Human Rights Law and ‘Soria Moria Declaration’, which at present cannot be used as an
argument for how the Children’s Committee’s practice should be given greater weight than
what is stated in the legal source material (ibid.). A change in the legal source material could
be seen on as a weakening of the state’s room for manoeuvre to make decisions and to control
immigration. In view of this research, it is perhaps unlikely that a change in the legal source
material would occur, because it might weaken states’ power to limit migration. Moreover, a
possible consequence of making the Children Committee’s reports more influential through

3
The three central types of documents are the ‘Concluding Observations’, the ‘General Comments’ and ‘Days of
General Discussions’ (Søvig, 2009).

57
making them legally binding for the individual state, could be that more weight would be
placed on objective claims and the understanding of guidelines, which could compromise the
individual and subjective assessment which is completed in each asylum decision. If more
weight is placed on objective claims, it could limit the space for interpretation of the best
interests of the child, which is not opted for. In reference to this research, not specifying what
lies behind the balancing between the best interests of the child and immigration control
considerations could be a way to ensure the individual and subjective assessment is completed
in each asylum decision. Making the best interests of the child more specific also have
implications, which suggests that changing the situation for children for ‘the better’ through a
more ‘open border’ or rights-focused approach, is not that straightforward. Clearer guidelines
also have its limitations for ensuring that the rights of the child are protected. In view of this
research, this discussion further shows the tension that exists in the balancing of procedural
and substance criteria. The legislative basis for safeguarding the rights of the child is
established in Norwegian law, and the interpretation of the best interests principle is the
outcome of how different decision-makers interpret these laws. The outcome of the
interpretation is also influenced by political and extra-legal factors.

In the following, a review of the concluding remarks that was made in the analysis, will be
clarified.

58
CONCLUSION

This research set out to find out how the best interests of the child was interpreted in the
plenary Supreme Court judgments, with specific reference to how the Court has struck a
balance between the rights of the child (substance criteria) and the rights of the state to limit
migration (procedural criteria). This was done by a document research analysis on the plenary
judgments. The interviews and observations have complemented the understanding of the
context of the plenary judgments. From the analysis, some main conclusions can be drawn.

From the analysis of the plenary judgments, there is disagreement between the judges on the
way Norway navigates between procedural and substance criteria concerning the nature of the
relationship between national laws and international laws. The disagreement between the
judges concerns the question whether UNE upholds or violates Norway’s human rights
obligations. One way this relationship is interpreted by the judges is that Norway seems to
lean more on national laws than international laws as national courts do not find it necessary
to follow the same judicial review as the ECtHR, and because Norway’s human rights
obligations imply that the Court on certain legal areas shall evaluate judgments using a
‘present time assessment’. The majority of judges disagree, and argue that evaluating cases
using a ‘present time assessment’ is not required by national courts. The disagreement
suggests that the nature of the relationship between national law and international law on the
best interests of the child in an immigration context can be understood in many ways,
depending on how relevant legal texts are interpreted. Based on the interpretation made by the
majority of judges, UNE has upheld Norway’s international human rights obligations. Based
on the interpretation made by the minority of judges, UNE does not uphold Norway’s
international human rights obligations, and so rely more on national laws rather than
international laws when interpreting the best interests of the child.

Further arguments which suggest the balance between procedural and substance criteria is
largely managed by states, is expressed in the plenary judgments. From the analysis, it can be
concluded that the balancing between procedural and substance criteria is largely managed by
national laws rather than international laws, on the basis that international human rights laws
have no clear guidelines on how the international laws should be interpreted an exercised by
states. It is expressed in the plenary judgments that Norway has great discretionary power
59
when it comes to interpreting the best interests of the child, since the understanding is
ambiguous and value-laden. The wide space for interpretation of international laws and
human rights obligations means that international laws exercise few limits on how states that
have ratified the international human rights conventions should interpret the conventions.
When there is no clear guidelines on how to interpret international human rights, it means that
Norway to a large extent decides the balancing between immigration and the best interests of
the child.

From the analysis, one can conclude that the plenary judgments reflect a reciprocal impact
between politics and law on the interpretation of the best interests of the child. The
understanding of the best interests of the child by the Supreme Court was interpreted in
relation to immigration control considerations. The balancing between these considerations
concerned how to navigate between procedural and substance criteria. The plenary judgments
express a reciprocal relationship between politics and law (national), where the Supreme
Court determines what is the best interests of the child, but by influences from political and
extra-legal factors. As the politics provide guidelines and directives to the administrative
immigration authorities on how the best interests principle should be understood and assessed,
this thesis finds that the protection of children’s human rights is also partly determined by the
politics. It is however, difficult to draw any definitive conclusion concerning how the
reciprocal relationship between law and politics look, as the plenary judgments express
different interpretations on the Court’s role to interpret the best interests of the child.

The relationship between law and politics was further expressed in the plenary judgments
through a discussion on the balance between children’s connection to Norway and illegal stay.
The majority of judges found that the political priority of avoiding illegal and longstaying
migrants, and the parents’ choice of not adhering to national laws and rules, must come before
the best interests of the child and the children’s connection to Norway. The judgments thus
seem to mirror Norway’s restrictive immigration policy. That the judgments can be said to
reflect Norway’s political priorities supports the claim that law and politics have a reciprocal
impact, and further support the argument that the best interests of the child is managed by
law, but also influenced by political policies. The relationship between politics and law to
interpret the best interests of the child was also expressed in the plenary judgments through a
discussion concerning the best interests of the child against general prevention considerations.
The general prevention consideration is an immigration control consideration, and it was in

60
these cases decisive against considerations concerning the rights of the child. Finding the
decision valid might have affected the flow of immigration and the number of cases that had
to be granted a residence permit. The judgments thus reflect Norway’s immigration policy of
keeping an effective return policy. That the judgments mirror the political priorities supports
the claim that there is a reciprocal impact between politics and law and where both systems
influence how to interpret the best interests of the child.

The plenary judgments express a balancing of considerations, between procedural criteria and
substance criteria, between migrants’ rights, and the power and rights of the members to limit
migration through democratic decision-making processes. The actual body of legislation can
be interpreted in many ways, and the general understanding is that there are significant
differences between judges and courts that judge similar cases (Hydén, 1998). This is also
expressed in the plenary Supreme Court judgments. The judges as decision-makers come to
different conclusions when interpreting the same laws concerning the question of whether
UNE had violated Norway’s human rights obligations concerning the best interests of the
child. The legal arguments posed in the plenary judgments suggest that laws are not that rigid
as one might think, as the decision-makers did not come to the same conclusion when
interpreting the same set of laws. The outcome depends on the balancing of considerations,
between universal human rights and the rights of the state and its members to control
migration.

Further Research

Further research should include the participation of actors including organisations and
associations that are generally understood as representatives for the protection of human
rights, and which often fills an advocatory function in that they establish demands and try to
influence political actors and other governmental systems. Establishing their position as
decision-makers is called for, in order to draw conclusions on how these actors are involved
in interpreting and influencing the understanding of the rights of the child. As human rights
organisations directed at immigration related issues generally aim for a more human rights-
based approach on immigration, it would be interesting to examine the position they hold to
influence how liberal democratic states may navigate between procedural and substance
criteria.

61
In addition, further research should examine if the plenary Supreme Court judgments have
had any impact for case law. The Supreme Court’s case law may be deemed precedent for
future decisions that administrative authorities make in similar cases. Because decisions on
asylum cases happens after an individual and subjective assessment, and are rarely exactly the
same, the precedent-impact of the individual judgment will at times be limited, but first and
foremost, the plenary judgments are important as a source of argument. Regardless of whether
decisions have status as precedent or not, the plenary judgments exemplify well the current
practice in Norwegian law, and will have an impact on how one interprets laws in subsequent
cases.

After this research was conducted, it was in May 2013 decided that Hossein Shabazi and his
family (case 2012/688) was granted residence permit. Head of Information in UNE, Bjørn
Lyster states that “this is a new assessment that has been made on the basis of new
circumstances in the case. This does not mean that we believe the previous resolutions and
decisions were incorrect. It is the oldest boy in the family...and his connection with Norway
which is the argument for granting the family residence permit” (NRK, 2013). UNE dismiss
that this decision will have any impact on the 500 other asylum-seeking children who are
staying illegally in Norway (NRK, 2013).

62
BIBLIOGRAPHY

Alston, P., 1994. The Best Interests Principle: Towards a Reconciliation of Culture and
Human Rights. International Journal of Law and the Family vol. 8, pp.1-25. Available at:
http://lawfam.oxfordjournals.org/content/8/1/1.full.pdf+html [Accessed February 7 2013]

Alter, K. J., 2011. Judicialization of International Relations. In: B. Badie, D. Berg-Schlosser,

and L. Morlino (eds.). International Encyclopedia of Political Science [e-book]. Thousand
Oaks,CA: Sage Publications Ltd.
<http://knowledge.sagepub.com/view/intlpoliticalscience/n315.xml > [Accessed April 21
2013].

Andenæs, K., 2006. About the power of judicialization and the judicialization’s potential
power (Original title in Norwegian: Om maktens rettsliggjøring og rettsliggjøringens
maktpotensial). Tidsskrift for samfunnsforskning [Journal of Social Research]. (4), pp. 587-
601. Available at:
https://www.google.com/search?q=Om+maktens+rettsliggj%C3%B8ring+og+rettsliggj%C3
%B8ringens+maktpotensial&aq=f&oq=Om+maktens+rettsliggj%C3%B8ring+og+rettsliggj%
C3%B8ringens+maktpotensial&aqs=chrome.0.57j62.504j0&sourceid=chrome&ie=UTF-8
[Accessed May 2 2013]

Bader, V., 2005. The Ethics of Immigration. Constellations, vol.12 (3), pp.331-361. Available
at: http://onlinelibrary.wiley.com/doi/10.1111/j.1351-0487.2005.00420.x/abstract [Accessed
February 10 2013]

Bailliet, C., 2003. Study of the Grey Zone between Asylum and Humanitarian Protection in
Norwegian Law and Practice. Available from:
http://www.jus.uio.no/ior/personer/vit/ceciliab/dokumenter/KRD-rapport.pdf
Institute for Public and International Law. University of Oslo:

Barbour, R., 2008. Introducing Qualitative Research [e-book] London: SAGE Publications
Ltd. Available through: Lund University Library Site

63
<http://srmo.sagepub.com.ludwig.lub.lu.se/view/introducing-qualitative-research/SAGE.xml>
[Accessed March 21 2013].

Becker, S., and Bryman, A., 2004. Understanding Research for Social Policy and Practice:
Themes, Methods and Approaches. Bristol: Policy

Benhabib, S., 1996. Democracy and Difference: Contesting the Boundaries of the Political.
United Kingdom: Princeton University Press.

Benhabib, S., 2002. Claims of Culture: Equality and Diversity in the Global Era. ed. Oxford:
Princeton University Press. Ch. 6

Berg, B. L., and Lunde, H., 2012. Qualitative Research Methods for the Social Sciences 8th
ed. Boston:Pearson.

Berg, B., and Valenta, M. 2008., Escape, Exile and Refugees’ Social Integration (Original
title in Norwegian: Flukt, eksil og flyktningers sosiale integrasjon) [online] Oslo: The
Norwegian Research Council [Norges Forskningsråd], International Migration and Ethnic
Relations, IMER. Available from:
http://www.forskningsradet.no/servlet/Satellite?blobcol=urldata&blobheader=application%2F
pdf&blobheadername1=Content-
Disposition%3A&blobheadervalue1=+attachment%3B+filename%3DwebIMERFlukteksil.pd
f&blobkey=id&blobtable=MungoBlobs&blobwhere=1274460408404&ssbinary=true
[Accessed February 3 2013].

Boswell, C., 2005. The Ethics of Refugee Policy. Aldershot, Burlington, Vt: Ashgate.

Brekke, J-P., 2004. The Struggle for Control. The impact of national control policies on the
arrival of asylum seekers to Scandinavia 1999-2004. Institute for Social Research (ISF)
Report 2004:13. Available at: http://www.socialresearch.no/Publications/Reports/2004/2004-
013 [Accessed February 12 2013]

Brekke, J-P., and Aarset, M. F. 2009. Why Norway? Understanding Asylum Destinations.
Institute for Social Research ISF Report (2009:12). Available at:

64
http://www.udi.no/Global/upload/Nyheter/Nyheter%202009/R_2009_12_web.pdf [Accessed
January 8 2013]

Brekke, J-P., Aarset, M. F., Lidén, H., and Andenæs, K., 2010. Immigration and Flight to
Norway: A Review of the Knowledge 1990-2009 (Original title in Norwegian: Innvandring
og flukt til Norge. En kunnskapsgjennomgang 1990-2009). Institute for Social Research ISF
Report (2010:002). Available at: http://www.migrasjonsforskning.no/site-no/04-
Publikasjoner/Rapporter.htm [Accessed January 7 2013]

Brettell, C. B., and Hollifield, J. F., 2008. Migration Theory: Talking Across Disciplines. 2nd
ed. London: Routledge, Taylor & Francis Group.

Brochmann, G., 1999. Mechanisms of Immigration Control: A Comparative Analysis of

European Regulation Policies. Oxford: Berg.

Brochmann, G., and Hammar, T., 1999. Mechanisms of Immigration Control: A Comparative
Analysis of European Regulation Policies. Oxford: Berg.

Bryman, A., 2008. Social Research Methods. 3rd ed. Oxford: Oxford University Press

Bryman, A., 2012. Social Research Methods. 4th ed. Oxford: Oxford University Press

Carens, J. H., 1987. Aliens and Citizens: The Case for Open Borders. The Review of Politics,
vol.49 (2), pp.251-273. Available at:
http://journals.cambridge.org/action/displayFulltext?type=1&fid=5340748&jid=ROP&volum
eId=49&issueId=02&aid=5340740&bodyId=&membershipNumber=&societyETOCSession=
[Accessed February 8 2013]

Carens, J. H., 1996. Realistic and Idealistic Approaches to the Ethics of Migration.
International Migration Review, vol.30 (1), pp.156-170. Available at:
http://www.jstor.org/discover/10.2307/2547465?uid=2134&uid=2&uid=70&uid=4&sid=2110
1856613463 [Accessed February 8 2013]

65
Cohen, J., 1996., Procedure and Substance in Deliberative Democracy. In: S. Benhabib, ed.
Democracy and Difference: Contesting the Boundaries of the Political. Princeton, N.J. :
Princeton University Press. Ch. 5.

Creswell, J. W., 2007. Qualitative Inquiry and Research Design: Choosing Among Five
Approaches. 2nd ed. London: SAGE Publications Ltd.

Dahl, R., 1989. Democracy and its Critics. New Haven: Yale University Press.

Denscombe, M., 2003. The Good Research Guide: For Small-Scale Social Research Projects.
2nd ed. Maidenhead: Open University Press. Available through: Lund University Library Site
<http://reader.eblib.com/(S(csqavtvj3qktbla4ynpt20cg))/Reader.aspx?p=287885&o=103&u=
NkWnlLU7HSvXvJtjjuYKCw%3d%3d&t=1367055317&h=7755A9BB33626A7B46AF8203
FB950EBE3BB0B732&s=16933858&ut=233&pg=1&r=img&c=-1&pat=n#> (Accessed
March 12 2013] Ch. 2, Ch.9 and Ch. 10.

Schwandt, T. A., 2003. Three Epistemological Stances for Qualitative Inquiry: Interpretivism,
Hermeneutics, ans Social Constructionism. In: N. K, Denzin, and Y. S., Lincoln, (eds.) 2003.
The Landscape of Qualitative Research: Theories and Issues. 2nd ed. London: SAGE
Publications Ltd.

Einarsen, T., 2008. The Legal Position of Children in Immigration Court - A Court
Perspective (Original title in Norwegian: Barns Rettsstilling i Utlendingsretten - Et
Domstolperspektiv). In: M-A, Hedlund ed. Children’s Rights: An International Perspective
(Original title in Norwegian: Barnerett: I et Internasjonalt Perspektiv). Bergen:
Fagbokforlaget.

Ellingsæter, A-L., The Focus on the Child (Original title in Norwegian: Med Barnet i Fokus),
2003. NOU 2008:9. Oslo: Ministry of Children, Equality and Social Inclusion.

Fay, B., 1996. Contemporary Philosophy of Social Science. Oxford: Blackwell Publishing.

Flick, U., 2006. An Introduction to Qualitative Research. 4th ed. London: SAGE Publications
Ltd.

66
Flick, U., 2009. An Introduction to Qualitative Research. 4th ed. London: SAGE Publications
Ltd.

Floor, K., 2005. European States and the Asylum-seeking Child. In: In: H. E., Andersson, H.,
Ascher, U., Björnberg, M., Eastmond, and L., Mellander, 2005. The Asylum-seeking Child in
Europe. Gøteborg: Centre for European Research at Gøteborg University (CERGU). ch.4

Gubrium, J. F., and Holstein, J. A., 2002. Handbook of Interview Research: Context and
Method. London: SAGE Publications Ltd.

Haugli, T, and Shinkareva, E., 2012. The Best Interests of the Child Versus Public Safety
Interests: State Interference into Family Life And Separation of Parents and Children in
Connection with Expulsion/Deportation in Norwegian and Russian Law. International
Journal of Law Policy Family 26 (3), pp.351-377. Available at:
http://lawfam.oxfordjournals.org.ludwig.lub.lu.se/content/26/3/351.full.pdf+html [Accessed
February 3 2013]

Hydén, H., 1998. Sociology of Law as Jurisprudence (Rättssociologi som Rättsvetenskap).

Lund: Lund Studies in Sociology of Law 3.

Hydén, H. 2008. Putting Law in Context - Some Remarks on the Implementation of Law in
China. In: H. Hydén, and P. Wickenberg, eds. Contributions in Sociology of Law: Remarks
from a Swedish Horizon. Lund: Lund Studies in Sociology of Law.

IOM, International Organisation for Migration., n.d. Assisted Voluntary Return and
Reintegration. IOM. Available from: http://www.iom.int/cms/return-assistance-migrants-
governments [Accessed March 19 2013]

Jupp, V., 2006. The SAGE Dictionary of Social Research Methods. London: SAGE
Publications Ltd.

67
Kvale, S., 2007. Doing Interviews [e-book] London: SAGE Publications Ltd. Available
through: Lund University Library Site <http://srmo.sagepub.com.ludwig.lub.lu.se/view/doing-
interviews/SAGE.xml> [Accessed March 21 2013].

Kvale, S., and Brinkmann, S., 2009. InterViews: Learning the Craft of Qualitative Research
Interviewing. 2nd ed. Los Angeles: SAGE Publications Ltd.

Langbach, T., 2013. Shall consider whether decisions are valid (Original title in Norwegian:
Skal vurdere om vedtak er gyldige). Aftenposten, [online] January 28. Available at:
http://www.aftenposten.no/meninger/debatt/Skal-vurdere-om-vedtak-er-gyldige-
7104275.html#.UWLmkpN7Ito [Accessed 1 February 2013].

Lavenex, S., 1999. Safe third countries : Extending the EU asylum and immigration policies
to Central and Eastern Europe. Budapest: Central European University Press.

Luhmann, N., 2004. Law as a Social System. Oxford: Oxford University Press.

Lundberg, A., 2009. The Best Interests of the Child Principle in the Asylum Process: A
Constructive Tool or the Emperor’s New Clothes? (Original title in Swedish: Principen om
barnets bästa i asylprocessen: Ett konstruktivt verktyg eller kejsarens nya kläder?) Malmø:
Malmø Institute for Studies of Migration, Diversity and Welfare (MIM).

Marvasti, A. B., 2004. Qualitative Research in Sociology [e-book] London: SAGE

Publications Ltd. Available through: Lund University Library Site
<http://srmo.sagepub.com.ludwig.lub.lu.se/view/qualitative-research-in-
sociology/SAGE.xml> [Accessed March 22 2013].

May, T., 2001. Social Research: Issues, Methods and Process. 3rd ed. Buckingham: Open
University Press.

May, T., 2011. Social Research: Issues, Methods and Process. 4th ed. Buckingham: Open
University Press.
Mogalakwe, M., 2009. The Documentary Research Method – Using Documentary Sources in
Social Research- Eastern Africa Social Science Research Review, vol. 25 (1), pp.43-58.

68
Available at: http://www.ajol.info/index.php/eassrr/article/view/22759 [Accessed March 5
2013]

Neuman, W. L., 2011. Social Research Methods: Qualitative and Quantitative Approaches
7th. ed. Boston: Pearson.

Neumayer, E., 2005. Asylum recognition rates in Western Europe – Their determinants,
variation and lack of convergence. Journal of Conflict Resolution, 49 (1), pp.43-66. Available
at: http://www.sagepub.com/journalsProdDesc.nav?prodId=Journal200764 [Accessed
February 2 2013].

NOAS, 2012. Hearing Statements: ‘Displaced Children’. [online] NOAS. Available at:
http://www.noas.no/wp-content/uploads/2012/09/NOAS-h%C3%B8ringsuttalelse-Barn-
p%C3%A5-flukt-melding-100912.pdf [Accessed December 20 2012]

Noll, G., 2010. Why Human Rights Fail to Protect Undocumented Migrants. European
Journal of Migration and Law [e-journal] 12 (January), 241-272. Available through: Lund
University Library Site
<http://works.bepress.com/cgi/viewcontent.cgi?article=1008&context=gregor_noll&sei-
redir=1&referer=https%3A%2F%2Ffanyv88.com%3A443%2Fhttp%2Fwww.google.com%2Furl%3Fq%3Dhttp%253A%252F%2
52Fworks.bepress.com%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1008%2526cont
ext%253Dgregor_noll%26sa%3DD%26sntz%3D1%26usg%3DAFQjCNGKkgMuYnNohNdz
vOPLo4B0BDdemw#search=%22https%3A%2F%2Ffanyv88.com%3A443%2Fhttp%2Fworks.bepress.com%2Fcgi%2Fviewcont
ent.cgi%3Farticle%3D1008%26context%3Dgregor_noll%22> [Accessed March 1 2013].

NOU 2004:20: New Immigration Act (Original title in Norwegian: Ny Utlendingslov).

Submitted to the Ministry of Local Government and Regional Development 19th of October
2004. Avgitt til Kommunal- og regionaldepartementet 19. oktober 2004. Available through:
http://www.regjeringen.no/en/dep/krd/documents/nouer/2004/nou-2004-20.html?id=387326
[Accessed December 3 2012]

NRK, 2013. Finally, I am a Norwegian [Endelig er jeg norsk] [online]. Available from:
http://www.nrk.no/nyheter/distrikt/ostafjells/telemark/1.11024571 [Accessed May 16 2013]

69
Olsen, R., 2008. Self-selection Bias. In: P.l J. Lavrakas (ed.). Encyclopedia of Survey
Research Methods [e-book] London: SAGE Publications Ltd. Available through: Lund
University Library Site <http://srmo.sagepub.com.ludwig.lub.lu.se/view/encyclopedia-of-
survey-research-methods/n526.xml?rskey=3h7hgU&row=2> [Accessed May 10 2013]

Olson, M., 2010. Document Analysis. In: A. J. Mills., G. Durepos, and E. Wiebe, eds.
Encyclopedia of Case Study Research [e-book] London: SAGE Publications Ltd. Available
through: Lund University Library Site
<http://srmo.sagepub.com.ludwig.lub.lu.se/view/encyc-of-case-study-
research/n120.xml?rskey=EWLxdq&row=1> [Accessed March 21 2013].

Parker, S., 1994. The Best Interests of the Child: Principles and Problems. International
Journal of Law and the Family vol.8, pp.26-41. Available at:
http://lawfam.oxfordjournals.org/content/8/1/26.full.pdf+html [Accessed February 7 2013].

Riise, E., and Øygarden, G., 1994. Asylum seekers and protection needs - The relationship
between real infringements and formal decisions (Original title in Norwegian: Asylsøkere og
beskyttelsesbehov – forholdet mellom reelle krenkelser og formelle vedtak. Juss-Buss Stencil
Series, no.61. (Orignial title in Norwegian:Juss-Buss stensilserie, nr.61). Oslo. Universitetet i
Oslo.

Sahitovich, A., 2012. The principle of the best interests of the child in an immigration law
context: A study of the best interests of the child based on the theory of Agamben and
judicialisation (Original title in Norwegian: Prinsippet om barnets beste i utlendingsrettslig
sammenheng: En studie av barnets beste med utgangspunkt i teori fra Agamben og
rettsliggjøring). Master thesis in Sociological of Law. University of Oslo.

Sandberg, K., 2008. The Rights of Refugee Children (Original title in Norwegian:
Flyktningbarns Rettigheter). In: N. Høstmælingen, E. S. Kjørholt, and K. Sandberg, eds. The
Convention on the Rights of the Child: Children's’ Rights in Norway (Original title in
Norwegian: Barnekonvensjonen: Barns Rettigheter i Norge). Oslo: Universitetsforlaget

Schiratzki J., 2000. Best interests of the Child in the Swedish Aliens Act. International
Journal of Law, Policy and the Family vol.14, (3), pp.206-225. Available at:

70
http://ehis.ebscohost.com.ludwig.lub.lu.se/eds/pdfviewer/pdfviewer?vid=3&sid=d47e1a62-
dc62-40a3-87e1-4f0d1878035a%40sessionmgr12&hid=15 [Accessed February 3 2013]

Schiratzki J., 2003. The Best Interests of the Child - Globalisation with Reservation.
Barnkonventionen och barnets bästa – globalisering med reservation. In G. Hallden and B.
Sandin. The Best Interests of the Child - An Antalogy of the Childhood’s Meanings and
Welfare Organization (Original title in Swedish: Barnets bästa – en antologi om barndomens
innebörder och välfärdens organisering) Eslöv: Brutus Östlings Bokförlag Symposium

Smith, T., 2005. European Refugee Law and its Impact upon Children. In: H. E., Andersson,
H., Ascher, U., Björnberg, M., Eastmond, and L., Mellander, 2005. The Asylum-seeking Child
in Europe. Gøteborg: Centre for European Research at Gøteborg University (CERGU). ch.3

Smith, L., 2008. The UN’s Convention on the Rights of the Child. In: K. Sandberg, E. S.
Kjørholt, and N. Høstmælingen eds. The Convention on the Rights of the Child: Children’s
Rights in Norway (Original title in Norwegian: Barnekonvensjonen: Barns rettigheter i
Norge). Oslo: University Publishing pp.15-27.

Spång, M., 2008. Swedish Immigration Policy and Democratic Legitimacy. Malmø: Malmø
Institute for Studies of Migration, Diversity and Welfare (MIM) and Department of
International Migration and Ethnic Relations (IMER), Malmø University.

Stang, E. G., 2008a.The Convention on the Rights of the Child (CRC) article 3 no. 1 in
Asylum Cases (Original title in Norwegian: Barnekonvensjonens artikkel 3 nr. 1 i Asylsaker)

Stang, E. G., 2008b. Children, Torture and Return: The Legal Meaning of Child-specific
Torture, Inhuman and Degrading Treatment in Asylum Cases, Including Child Protection
Return (Orginial title in Norwegian: Barn, tortur og retur. Den rettslige betydningen av
barnespesifikk tortur, umenneskelig og nedverdigende behandling i asylsaker, herunder barns
returvern. Institute for Public Law Series, no 4/2008 (Original title in Norwegian: Institutt for
offentlig retts skriftserie nr 4/2008. Oslo: Institutt for offentlig rett, Universitetet i Oslo.

Söderbergh, C., 2005. International Law and Children as Asylum-seekers. In: H. E.,
Andersson, H., Ascher, U., Björnberg, M., Eastmond, and L., Mellander, 2005. The Asylum-

71
seeking Child in Europe. Gøteborg: Centre for European Research at Gøteborg University
(CERGU). ch.1

Søvig, K., H. 2009. Rights of the child on the child’s premises - Challenges in the meeting of
the Convention and Norwegian law. A study carried out on behalf of Ministry of Children,
Equality and Social Inclusion. (Original title in Norwegian: Barnets rettigheter på barnets
premisser - Utfordringer i møtet mellom FNs barnekonvensjon og norsk rett. En utredning
gjort på oppdrag fra Barne- og likestillingsdepartementet).
Available at:
http://www.regjeringen.no/upload/BLD/Barnets%20rettigheter/Utredning_Sovig_end_versj.p
df [Accessed February 26 2013]

UNE. 2009. The Understanding of ‘the best interests of the child’ in asylum cases [Original
title in Norwegian: Betydningen av ‘barnets beste’ i asylsaker]. Practice Notes 19th of
October 2009. Available from: http://www.une.no/Praksis2/Notater/-Betydningen-av-barnets-
beste-i-asylsaker/

UNICEF, 2005. Convention on the Rights of the Child: Path to the Convention on the Rights
of the Child [online] UNICEF. Available from: http://www.unicef.org/crc/index_30197.html
[Accessed January 10 2013]

UNICEF, 2012. Children’s rights in Norway (Original title in Norwegian: Barnas rettigheter i
Norge) [online] UNICEF. Available at:
https://www.unicef.no/Barn+og+unge/Barnekonvensjonen/I+Norge [Accessed January 10
2013]

Viseth, E., 2012. The Day of Fate for Verona and Mahdi (Original title in Norwegian:
Skjebnedag for Verona og Mahdi). Available from:
http://www.nrk.no/nyheter/norge/1.10848556 [Accessed Januray 12 2013]

Vitus, K., and Lidén, H., 2010. The Status of the Asylum-seeking Child in Norway and
Denmark: Comparing Discourses, Politics and Practices. Journal of Refugee Studies vol.23
(1), pp.62-81. Available at: http://jrs.oxfordjournals.org/content/23/1/62.full.pdf+html
[Accessed November 20 2012]

72
Weiner, M., 1996. Ethics, National Sovereignty and the Control of Immigration. International
Migration Review, vol.30 (1), pp.171-197. Available at:
http://www.jstor.org/discover/10.2307/2547466?uid=2134&uid=2&uid=70&uid=4&sid=2110
1856613463 [Accessed February 8 2013]

Wille, P, F., 2008. UN Convention on the Rights of the Child with Protocols (Original title in
Norwegian: FNs Konvensjon om Barnets Rettigheter med Protokoller). In: M-A, Hedlund ed.
Children’s Rights: An International Perspective (Original title in Norwegian: Barnerett: I et
Internasjonalt Perspektiv). Bergen: Fagbokforlaget.

Laws and Regulations:

1991. FNs konvensjon om barnets rettigheter (barnekonvensjonen) av 8 januar 1991. [The UN

Convention on the Rights of the Child (CRC), January 8 1991]

1999. Lov om styrking av menneskerettighetenes stilling i norsk rett (menneskerettsloven) av

21 mai 1999 nr. 30. [Law on strengthening the status of human rights in Norwegian law
(Human Rights Law), May 21 1999 no. 30].

2008. Lov om utlendingers adgang til riket og deres opphold her (utlendingsloven) av 15 mai
2008 nr. 35. [Act of 15 May 2008 on the entry of foreign nationals into The Kingdom of
Norway and their stay in the realm (Immigration Act), May 15 2008 no.35].

2009. Forskrift om utlendingers adgang til riket og deres opphold her (utlendingsforskriften)
av 15 oktober 2009. nr. 1286. [Regulations of 15 October 2009 on the entry of foreign
nationals into the Kingdom of Norway and their stay in the realm (Immigration Regulations),
October 15 2009 no. 1286].

Supreme Court Cases:

Case 2012/688 HR-2012-02398-P,(case number. 2012/688). Available at:

http://www.domstol.no/upload/HRET/saknr2012-688plenum(anonymisert).pdf [Accessed
December 23 2012]

73
Case 2012/1042 HR-2012-02399-P, (case number. 2012/1042). Available at:
http://www.domstol.no/upload/HRET/saknr2012-1042(nonymisert).pdf [Accessed December
23 2012]

White Papers:

White Paper no. 9 (2009-2010) Norway’s refugee and migration policy in a European
perspective [Norsk flyktning- og migrasjonspolitikk i et europeisk perspektiv], Norway:
Ministry of Justice and the Police.

White Paper no.27 (2011-2012) Displaced Children [Barn på flukt], Norway:Ministry of

Justice and Public Security

White Paper no.75 (2006-2007) About access to the territory and their stay here (Immigration
Act) [Om lov om utlendingers adgang til riket og deres opphold her (utlendingsloven)],
Norway: Ministry of Labour

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ATTACHMENTS

Interview Participation Form

Forespørsel om intervjudeltakelse vedrørende masteroppgave ‘How is the ‘Best

Interests of the Child Principle’ and ‘Connection with Norway’ Worked Out in Asylum
Cases Concerning Children?’

Mitt navn er Julie Bettina Blakstad og tar for øyeblikket en mastergrad i Development Studies
på Lunds Universitet i Lund, Sverige. Vårsemesteret 2013 skriver jeg min masteroppgave, og
i den anledningen henvender jeg meg til deg.

Tema for avhandlingen er om hvordan prinsippet ‘tilknytning til riket’ blir brukt i asylsaker
som omhandler barn. Målet med masteroppgaven er å redegjøre for hva som ligger til grunn
bak prinsippet barns ‘tilknytning til riket’ og få frem hvorfor det vil være fordelaktig med en
mer heuristisk forståelse av prinsippet. Dette ved å bruke et mikro-perspektiv som redegjør
for barnets perspektiv.

For å innhente informasjon ønsker jeg å intervjue et representativt utvalg som har tilknytning
til temaet asyl og barns rettigheter i lys av prinsippet ‘tilknytning til riket’.

Målet med ekspertintervjuene er å få innsyn fra forskjellige aktører om hva som ligger til
grunn bak avgjørelser knyttet til ‘tilknytning til riket’. I tillegg til faglige spørsmål ønsker jeg
også å få innsyn av intervjuobjektets egne erfaringer og betraktninger av asylfeltet.

Intervjuobjektet velger selv intervjukonteksten, men erfaringsmessig er det fint å velge et sted
hvor det ikke er så mye støy, slik som på et møterom eller kontor. Vi kan avtale tid og sted
dersom du vil la deg intervjue Jeg vil ta notater underveis. Jeg vil anta at intervjuene vil vare
fra 30 minutter og opp mot en time. Det er helt frivillig å delta og det er mulig å trekke seg
når som helst i løpet av prosjektet, uten å begrunne hvorfor. Dersom du bestemmer deg for å
trekke deg vil all innsamlet data bli slettet. Det er kun jeg som vil ha tilgang til
personidentifiserbare data. I den endelige versjonen vil all data bli anonymisert.

75
Deltar du vil du få muligheten til å opplyse om temaet asyl og prinsippet ‘tilknytning til riket’
når det gjelder barn. I tillegg får du muligheten til å dele erfaringer og egne oppfatninger.

Har du videre spørsmål og/eller ønsker å la deg intervjue, kontakt meg på 45273493, eller
send en epost til: [email protected].

Dersom du har lyst til å delta i prosjektet, vennligst signer på den vedlagte
samtykkeerklæringen (se vedlegg), og videresend det til meg via epost.

Med vennlig hilsen

Bettina Blakstad
Masterstudent i Development Studies
Lunds Universitet.

76
Informed Consent Form

Samtykkeerklæring

Intervjudeltakelse vedrørende masteroppgaven ‘How is the Principle ‘Connection with

Norway’ Worked Out in Asylum Cases Concerning Children?’

Jeg har mottatt informasjon om masterprosjektet og ønsker å stille opp på intervju. Jeg har
blitt informert om at jeg kan trekke meg når som helst, uten å oppgi grunn. All innsamlet data
vil da bli slettet.

Signatur…………………………………………………… Dato…………………………

Telefonnummer……………………………………………

Navn (blokkbokstaver)……………………………………………………………………….

77
Interview Guide

Hvordan forstås og anvendes prinsippet ‘barns tilknytning til riket’ i individuelle asylsaker?
How is the principle ‘connection to Norway’ understood and assessed in asylum cases?

Hvilke kriterier bør ligge til grunn i vurderingen av ‘barns tilknytning til Norge’?
What should be the basis when interpreting the principle ‘children’s connection to the realm’?

Hvordan blir prinsippet ‘barns tilknytning til riket’ forstått og vurdert i lys av ‘barnets beste’
prinsippet?
How is the principle ‘connection to Norway’ understood in light of ‘the best interests of the
child’ principle?

Hvordan er forholdet mellom innvandringspolitiske hensyn og barnets beste?

How is the balance between immigration control considerations and best interests of the child
considerations?

Hvor stort rom for skjønnsutøvelse er det i utlendingsforvaltningens beslutningsprosesser?

How is the administrative immigration authorities’ room for discretion’?

Hvilke konsekvenser vil du si det har at Norge spesifikt ikke har oppgitt hvor mange år
(minst) som skal til for å kunne si at en person har tilknytning til riket?
What consequences would you say it has that Norway has not specified how many years it
would take to consider a person as having a connection to Norway?

Finnes det tilfeller av aldersdiskriminering av barn mellom 0-18 når det gjelder spørsmålet
om barns tilknytning til riket?
Are there cases of age discrimination against children between 0-18 in relation to the issue of
children's connection to Norway?

Skiller utlendingsbarns rettigheter seg fra barns rettigheter med norsk bakgrunn? Eventuellt
på hvilken måte?

78
Are there any differences between the immigration children’s rights and the rights of children
that are citizens of Norway?

Kan du si noe om hvordan situasjonen er for lengeværende barn, det å ha livet på vent?
Could you say something about the situation for longstaying children in Norway?

Kan du si noe om konsekvensene av deres foreldres valg av å bo i landet ulovlig og hvordan

det påvirker barna?
Could you say something about the consequences of the parents’ choice of exceeding the
departure deadline and how this affects the children?

Hvordan er oppveksten lagt til rette for asylsøkende barn?

How is the childhood situation for asylum seeking children?

Hvilke konsekvenser tror du Høyesterettsdommen ved Verona med familie og Shabazi med
familie vil ha for asylpraksisen av lengeværende barn?
What significance would you think the plenary judgments have for the asylum practice on
longstaying children?

Hvilken rolle tror du media har spilt i Høyesterettsdommen?

What role would you say the media has played regarding the Supreme Court judgments?

Hvilken rolle har stortingsmeldingen Barn på flukt hatt for lengeværende barn?
What signifiance has the White Paper ‘Displaced Children’ had for longstaying children?

79