UDI 2010-043 Children's right to be heard in immigration cases - except applications for protection

1. Introduction

This document sets out guidelines for how children's right to be heard shall be implemented in all cases that fall under the Immigration Act except asylum cases. There are separate guidelines for how children shall be heard in asylum cases, cf. UDI 2010-075. In this guideline, the term 'immigration cases' is used to refer to all cases that fall under the Immigration Act with the exception of asylum cases.

Children are affected by immigration cases in different ways, both as parties to their own cases and as affected parties in immigration cases involving their parents or other care persons. By children is meant persons under the age of 18 years.

The purpose of this guideline is to:

• ensure that children's rights to state their views pursuant to the UN Convention on the Rights of the Child Article 12 and the Immigration Act Section 81, cf. the Immigration Regulations Sections 17-3 and 17-5, are safeguarded in immigration cases
• ensure that it is made clear in decisions that the child's right to be heard has been respected
• ensure that it is made clear in decisions how the child's views have been taken into account, cf. the Immigration Regulations Section 17-1a

2. Legal basis

2.1. The UN Convention on the Rights of the Child Article 12

Article 12 of the UN Convention on the Rights of the Child of 20 November 1989 (the UNCRC) gives children the right to state their views in cases that affect them. The UNCRC is incorporated into Norwegian law through the Human Rights Act Section 2 No 4. In addition, Section 81 second paragraph of the Immigration Act, which concerns children's right to be heard in matters under the Immigration Act that affect them, refers to Article 12 of the UNCRC.

The right to be heard means that a child shall participate or assist in his or her own case. Children’s right to be heard is an independent right that is not dependent on the immigration authorities’ need for new information. All children who are capable of forming views of their own are entitled to be heard. The purpose of the child’s right to state his or her views is, among other things, to shed light on the child’s situation and how the child is affected by the case in question. It is emphasised that children are not obliged to express their views, and that it is up to the child whether he/she wishes to do so.

Article 12 must also be seen in conjunction with Article 3 No 1, which states that the best interests of the child shall be a primary consideration in all actions concerning children. Consideration of the best interests of the child pursuant to Article 3 is closely linked to the right to heard pursuant to Article 12.

2.2. The Immigration Act Section 81, cf. the Immigration Regulations Sections 17-1a, 17-3 and 17-5

For immigration cases, Article 12 of the UNCRC is now incorporated in Norwegian law through the Immigration Act Section 81 second paragraph, the Immigration Regulations Section 17-1a, Section 17-3 and Section 17-5. It is also stated in the Public Administration Act Section 17 first paragraph that children are entitled to express their views insofar as they are capable of forming own views on a matter. Moreover, children's right to be heard follows from the Children Act Section 31.

Pursuant to Section 17-3 of the Immigration Regulations, children who have reached the age of seven and younger children who are capable of forming views of their own shall be given an opportunity to be heard before a decision is made in a case concerning them. The child's views can either be heard directly or through a parent or guardian. Thus can take place either orally or in writing The criterion that the child must be capable of forming views of its own means that it must have reached such a level of maturity that it is capable of having an opinion on a matter that has a bearing on the case. It is difficult for the immigration authorities to know how mature a child is. As a rule, the parents' views on the child's maturity can therefore be accepted. The maturity criterion is a discretionary rule aimed at children under the age of seven. From the age of seven, children are entitled to state their views under all circumstances. How mature a child is will nonetheless have a bearing on how much emphasis is placed on the child's views.

Pursuant to Section 17-5, children over the age of seven shall as a rule be given an opportunity to state their views in a conversation. See 6.1.3 below for more information on this point.

As mentioned above, it is emphasised that children are not obliged to state their views but that they have a right to do so.

3. How children's views should be heard pursuant to the Regulations Sections 17-3 and 17-5

3.1. Information about children's right to state their views

It is the person who receives the application at the foreign service mission or the police who must inform the child or others appearing on the child's behalf that the child has a right to state its views in a case. If this information is given directly to the child, it is important that the information is adapted to the child's level of maturity. The person who receives the application must note down / record that the child or the child's parents/guardians have been given information about the child's right to state its views.

3.2. What constitutes a satisfactory hearing

A child's right to be heard can be fulfilled in different ways. A child can state his or her views orally, or in writing in a letter if the child is old enough. A child can also state its views through its parents, guardian or other care persons, or, alternatively, via an official body (for example the child welfare service, if relevant). Including the child's views in the application form is another possibility. If others make a statement on behalf of the child, it should be considered whether the child's own views should be heard in order to make sure that the child's right to be heard is actually respected. It will often be sufficient, however, that the child's views are obtained via the person representing the child, cf. Proposition No 75 to the Odelsting Section 17.1.6.4.

What constitutes a satisfactory hearing of a child's views will vary from case to case, see section 5 on the different types of cases. In some cases, a lengthy conversation will be required, while in others it will be sufficient to inform the child about its right to express a view and to note down on the application form or in the notification to the Directorate of Immigration (UDI) that such information has been given (called the minimum standard in the guideline). It is emphasised, however, that, if the child wishes to make further statements or if circumstances emerge that indicate that a conversation should be held, arrangement shall be made to see make this possible. The foreign service missions and the police must therefore take steps to facilitate such conversations with children. This will be particularly relevant in certain types of family immigration cases, cf. Section 17-5, see 3.3 and 6.1.3 below.

As a rule, the child shall come to the foreign service mission or police station in person and hand in the application. The child shall be given an opportunity to state its views there. In some cases, the UDI considers applications submitted by parents / guardians in Norway on behalf of children abroad. It is a condition that sufficient information is provided about the case if the application is submitted in Norway. Reference is made to UDI 2010-015. If the child has stated its views, the statement shall be enclosed with the case when the parents / guardians apply from Norway.

3.3. Conversations with children

3.3.1. Facilitating and holding a conversation

In cases where a conversation is held with a child, the conversation must take place on the child's terms, and it must be in a form that ensures as far as possible that the child can freely state its views. The interviewer must begin by giving the child necessary information about the case and the case processing in a way that the child understands. It is important to explain why the child has been offered such a conversation, so that it is not perceived as a formal questioning session to cross-check information provided by others, and so that the child knows what it is expected to express a view on. The person interviewing the child must nonetheless be careful about disclosing confidential information about the parents' or guardians' case.

More time must be set aside for conversations with children than is normally the case for interviews with adults. A conversation with a child shall as far as possible be held in a separate room. The child's parents / guardians should as a rule be present during the conversation. An exception is made if a child applies alone and does not have any adults who can be present. A conversation can be held with a child even if the parents do not consent and without the parents being permitted to be present if the child so wishes and this is necessary in relation to the child's right to be heard. This follows from the Immigration Act Section 81 third paragraph. If the child is in Norway, and unless the child has another representative present, a substitute guardian shall be appointed if a conversation is to be held with a child without the parents being present; see the Immigration Act Section 81 fourth paragraph.

Among other things, making arrangements for a good conversation with a child means focusing on creating as secure and trusting an atmosphere as possible, being clear about what the intention behind the conversation is, agreeing with the child about how the conversation will be held, and actively listening to the child and following up the information the child provides.

The person who holds the conversation with the child shall take steps to ensure that the child can speak as freely as possible about the topics the interviewer raises. It is important that the case officer introduces and concludes a topic in a manner that ensures that the child understands at all times what the purpose of the conversation is.

3.3.2. The content of the conversation

In all cases, endeavours shall be made to shed light on the child's relationship with, among others, care persons in Norway and his/her home country, the child's health situation, concerns about the immigration case, schooling, friends, place of residence, work, the general conditions in the place where the child is staying, and how the child envisages the situation after the immigration case has been decided. The child shall also be given an opportunity to ask questions.

The purpose of the conversation shall not be to cross-check statements made by the child's parents / guardians.

Children cannot be expected to relate things in chronological order, to know place names or to place events in time in the same way as adults.

Further information about conversations with children is available in guide Q-15/2004 from the Ministry of Children and Family Affairs.

3.3.3. Handling of the information provided by the child

The information the child provides shall accompany the application. The questions and answers shall be reproduced as accurately as possible without paraphrasing. The interviewer can also provide other information about the conversation, for example about the child's reactions and behaviour during the conversation, because body language etc. can provide important additional information.

4. Notification to the child welfare service

Any employee in the UDI has a duty of information to the child welfare service when information is given in the child's statements that

• give reason to believe that the child is or will be exposed to abuse, serious neglect, or human trafficking,
  
  
• give reason to believe that the child has a life-threatening or other serious illness or injury and does not come to examination or treatment, or his og her particular need for treatment or training is not being met, or
  
  
• show severe behavioral disorders in the form of serious or repeated crime, substance abuse or another form of distinct normless behavior.

The duty to provide information is without prejudice to confidentiality and without undue delay, and is stated in the Immigration Regulations section 17-6, cf. Child Welfare Act Section 6-4, first paragraph. This provision applies only to children who reside in Norway. See also UDI 2014-015 chapter 5 and UDI 2014-015V.

5. Highlighting the right to make a statement and highlighting of the statement in the decision

In its decision, the UDI shall make it clear how the child's right to be heard has been taken into account. If a child has expressed views, it must be clear how these views have been expressed and what bearing they have had on the decision.

If the child has provided information that contradicts information provided by others, and that can thus put the child in a difficult situation, this should not be apparent from the decision.

Moreover, unless this is deemed to be clearly unnecessary, it should be made clear in all decisions that affect children how the child's situation has been assessed, regardless of whether a child has stated its views; see the Immigration Regulations Section 17-1a.

It is particularly important that decisions make it clear what assessments have been made as regards the child's rights, including an assessment of the best interests of the child pursuant to Article 3, and how consideration for the child has been assessed in relation to other possibly contradictory considerations. In expulsion cases, it should be clear from the decision whether the duration of a prohibition on entry has been reduced out of consideration for the child.

6. The different case types

6.1. Family immigration

6.1.2. Cases in which the minimum standard can usually be applied

By minimum standard, we mean that the person who receives the application informs the child or the parents / guardians that the child has a right to state its views and notes down on the application form that such information has been given. If the child appears in person, the child will be informed of this.

6.1.2.1. Both the child's parents have or will be granted a permit in the realm

In such cases, the child, will in the vast majority of cases, be entitled to a family immigration permit together with the parents. Moreover, it is part of the parents' parental responsibility to decide which country the child is to grow up in. In most cases, it will be sufficient to apply the minimum standard.

6.1.2.2. When a parent applies for a family immigration permit with a Norwegian child for whom the parent has parental responsibility and with whom the parent lives together permanently

The person granted a resident permit pursuant to this provision will be the child's primary care person. The minimum standard can usually be applied. It cannot be excluded, however, that there may be circumstances in the case that indicate that the child should be offered a conversation.

6.1.2.3. When a parent applies for a family immigration permit on grounds of access arrangements with a child

Parents are entitled to a residence permit if they have access arrangements of a certain scope with a child. The child has a right to state its views in all cases. Among other things, the statement can shed light on the child's relationship with the applicant and on whether the child's situation indicates that a permit should be granted even if other conditions for a permit are not satisfied.

6.1.3. Cases in which children shall be offered a conversation

As a rule, children over the age of seven shall be offered a conversation in the case types set out below, cf. the Immigration Regulations Section 17-5. This means that the police or foreign service mission shall inform the child that the immigration authorities want to talk to them. The conversation can be held at the same time as the application is submitted or a time can be agreed for the conversation later on. The conversation must be held before the police or foreign service mission forward the case to the Directorate of Immigration.

In some cases, however, it will clearly be unnecessary to hold a conversation with the child; see 6.1.4 below.

6.1.3.1. Children without parents in their home country who apply alone

If a child does not have parents in its home country, the purpose of the conversation is to shed light on the child's situation in its home country and its relationship with the care person in Norway. The information provided by the child plays a part in deciding whether and on what grounds the child will be granted a permit. It is particularly important that the case officer is able to quickly form a picture of the child's situation, since these cases are to be given priority.

6.1.3.2. Children who apply for reunification with a parent in Norway

Children who apply for reunification with a parent with parental responsibility in Norway are entitled to a permit unless this is not in the child's best interests, cf. the Immigration Act Section 42 second paragraph. The consent of the other parent is a condition where this is required. In many cases, a child will have a parent in its home country who it leaves behind to be reunited with the parent in Norway. Moreover, there may be a conflict of interest between the child and the parent the child is to be reunited with in Norway. A conversation can help to shed light on the child's relationship with each of the parents. It is particularly important to shed light on the child's relationship with other adults living with the parent in Norway.

6.1.3.3. Children who apply for reunification with foster parents in Norway

In cases where children apply for reunification with foster parents in Norway, it is normally necessary to hold a conversation with the child. Exceptions from this rule can only be made in exceptional and very unusual circumstances. The child's statement will have a bearing on the assessment of whether strong humanitarian considerations exist that indicate that a residence permit should be granted. The best interests of the child shall be a primary consideration in such assessments. It must be clarified at an early stage whether the child knows that the sponsor in Norway is not its biological parent. Note that it is unfortunate if the child first receives information to this effect through the UDI's decision.

6.1.3.4. Unaccompanied minors with refugee status in Norway or with a residence permit pursuant to Section 38 of the Act who apply for family reunification with parents

Parents of children under the age of 18 with refugee status are entitled to residence in Norway, cf. the Immigration Act Section 43 first paragraph. The minor shall nonetheless be offered a conversation to clarify whether reunification can come into conflict with the reason why the child was granted protection, cf. Section 51 of the Act. For children with a permit pursuant to Section 38 of Act, it is important to hear the child's view in order to clarify what is in the child's best interests.

6.1.3.5. The Immigration Act Section 40 fifth paragraph (probability of mistreatment)

The immigration authorities can refuse to grant a residence permit if it is most probable that the applicant will be mistreated or grossly abused; see the Immigration Act section 40 fifth paragraph. When the body with power of decision in the matter assesses this question, it can be very useful to hold a conversation with a child who is applying for a residence permit together with its mother or father. As a rule, a conversation should therefore be offered.

The child's statement could help to shed light on its relationship with the person the parent lives with / plans to live with, and how the child experiences everyday life.

6.1.4. Cases in which it will be evident that a conversation is unnecessary

Exceptions can be made from the duty to offer a child a conversation if it is clearly unnecessary to do so, cf. the Immigration Regulations Section 17-5 first paragraph. Examples of cases in which it is not necessary to hold a conversation with the child (the list is not exhaustive):

• the child's physical or mental health is such that it is not justifiable or possible to hold a conversation
• it is very difficult to hold a conversation, for example because it will be necessary to travel a long distance. In such cases, parents / guardians can be informed that the child can submit a written statement.
• the foreign service mission or the police realise that the application will clearly be rejected. An example of this is if the child applies together with a parent, cf. Section 17-5 first paragraph b), at the same time as it is clear that the parent's application will be rejected because he or she has been expelled from Norway or does not belong to the group of people that are granted a permit.
• the case concerns applications for family immigration from both parents for reunification with a child who has refugee status in Norway and there are no indications in the child's asylum case that the child has problems in relation to its parents or any accompanying children. In such cases, it is usually the UDI that has to decide whether to hold a conversation with the child since the child is normally in Norway when the application is submitted.
• applications where a conversation has not been held and where the UDI realises that the application will clearly end in rejection. In such cases, it is unnecessary to request the child to come for a conversation.

When forwarding the case, the case officer at the foreign service mission or the police must state that a conversation has not been held and why.

6.1.5. Revocation

6.1.5.1. Advance notification of the revocation of a child's permit

It must be stated in the advance notification of revocation of a permit that the child is entitled to state its view on the matter, cf. the Regulations Section 17-3.

Reference is made to UDI 2010-012 concerning the use of discretionary judgement when assessing revocation of a child's permit. The child's view will be important when considering whether the child shall still be entitled to a permit, including assessing the child's connection to the realm. If information is provided in an application that gives reason to believe that the child may still have grounds for residence, the police shall normally offer to hold a conversation with the child.

6.1.5.2. Advance notification of the revocation of a parent's / guardian's permit

It must be stated in the advance notification of revocation of a permit that the child is entitled to state its view on the matter, cf. the Regulations Section 17-3. In particular, the child should be given an opportunity to state how it perceives the situation. The child's statement can have a bearing on the assessment of whether strong humanitarian considerations exist that indicate that the parent / guardian should continue to hold a permit.

6.1.6. Renewal

6.1.6.1. Renewal on the same grounds

As a rule, children should hand in their application for a residence permit in person. It is important that the child attends in person in order to be sure that the child is actually in Norway. The child shall be informed about its right to state its views when it hands in the application. In cases concerning renewal that are covered by Section 17-5, the police will consider whether it is necessary to hold a conversation with the child.

6.1.6.2. Renewal on new grounds

As a rule, children who apply for renewal on new grounds shall hand in their application in person. The child shall be informed about its right to state its views when it hands in the application.

It will be particularly important to safeguard children's right to be heard in cases where it is argued that one of the parents or the child itself has been mistreated. In such cases, the police should as a rule offer to hold a conversation with the child. The offer can be made to the child itself or via a lawyer or guardian. If a conversation is held, it should in particular aim to shed light on whether the child itself has been subjected to mistreatment, and how the child has perceived the situation.

6.2. Permanent residence permits

The main rule in the case of permanent residence permits is that children should hand in their application in person. The minimum standard can be applied in such cases. Children's right to be heard can be safeguarded by the police informing the child or the parents / guardians about the right to be heard when the application is handed in.

6.2.1. Advance notification of the revocation of a child's permanent residence permit

See the description in 6.1.4.1 above.

6.2.2. Advance notification of the revocation of a parent's / guardian's permanent residence permit

See the description in 6.1.4.2 above.

6.3. Visas

In most instances, visa cases will not have as extensive consequences for children as other cases that fall under the Immigration Act. The procedure for ensuring that the child's right to be heard is respected can therefore be based on the minimum standard unless information emerges that indicates that the child should be offered a conversation.

6.3.1. Parents or others who apply for a visa to visit a child

Before a decision is made in the case of a first-time application, the foreign service mission shall contact the police district in which the child lives and request the police to contact the child to inform it about the application and its right to be heard. It is particularly important that the child states a view if the applicant has previously had an application rejected because of information provided by the child.

6.3.2. The Immigration Act Section 10 fifth paragraph (risk of mistreatment)

A visa application can be rejected if it is probable that the applicant or the applicant's children from a previous relationship will be mistreated or grossly abused. In such cases, the foreign service mission should hold a conversation with the child if the child wishes to state its views. The child shall also be informed that it can state its views in other ways.

6.4. Travel documents

An application for protection also includes an application for travel documents. Moreover, the application is handed in to the police in person, cf. the Regulations Section 12-11. Children are also required to go to the police in person together with one of the parents who has parental authority. It is important that the police give the child information about what it means to be issued a travel document. This will help to make the child aware that travel plans may exist and it will ensure that the child knows what it is expected to express a view on. Children over the age of ten must sign the application.

6.4.1. Information about genital mutilation or forced marriage

If information emerges that could indicate that the child is at risk of being subjected to forced marriage or genital mutilation if it is taken abroad, the police shall hold a conversation with the child.

6.4.2. Renewal of travel documents

It is primarily the police that renew travel documents. Children's right to be heard shall be respected, but the minimum standard can be applied in most cases.

Should information emerge that casts doubt on the purpose of the journey, or if the child expresses uncertainty in this regard, the child shall be offered a conversation.

6.5. Expulsion

6.5.1. Introduction

A decision on expulsion is a major intervention for those concerned. Such a decision can hit children particularly hard, since it can mean splitting the family permanently or temporarily. A decision on expulsion will not normally be in the child's best interests.

In expulsion cases, the person who informs the child about its right to state its views should at the same time state that expulsion is not normally in the child's best interests, but that consideration for the child does not always constitute an obstacle to expulsion.

6.5.2. An expulsion case that is expressly directed against a child

The Immigration Act does not specify a lower age limit for decisions on expulsion. In principle, therefore, children under 18 can be expelled in the event of violation of Norwegian law. It is very rare, however, that children are expelled.

In cases where an expulsion case is brought against a child, the child is a party to the case and shall be given advance notification of possible expulsion in accordance with the provisions of the Public Administration Act. This means that children over the age of 15 shall be notified separately. They shall be given an opportunity to express a view in their response to the advance notification. The child shall also be given guidance about its right to a representative and to legal aid, cf. the Immigration Act Section 81.

6.5.3. An expulsion case directed against a parent / guardian

Where the immigration authorities are considering whether to expel a child's parent / guardian, the child will not be given separate advance notification of this. The child will nonetheless be strongly affected by such a decision. In the advance notification to the parent / guardian, the case officer shall therefore inform the person concerned about the child's right to make a statement. It will thus be up to the child's parents / guardians, or, if relevant, lawyer, to inform the child about its right to be heard and to decide at what stage in the case processing the child should be involved.

It is important to note that the child can be affected in different ways by decisions concerning expulsion depending on their own residence status in Norway, their guardian's status, and on whether only one parent / guardian is being considered for expulsion. Splitting the family can be a consequence of expulsion if the rest of the family choose to stay in Norway. The child must in such case be given an opportunity to express an opinion on what it will be like to lose the contact it has had with its parent / guardian before the expulsion. This also applies if the parent / guardian who is expelled has access rights in relation to the child. If the decision can result in the child having to leave Norway together with one or both parents / guardians, it is important that the child is given an opportunity to express an opinion on this.

6.5.4. Children's right to be heard over and above providing information in response to advance notification

If the child itself wants a conversation, it shall be offered one. If it emerges from the response to the advance notification that the child will be affected in an extraordinary manner by the expulsion decision, the UDI shall assess whether the police must obtain further information and, if relevant, offer the child a conversation.

6.5.5. Applications for the revocation of a prohibition on entry

A person who has been expelled from the realm can apply to have the prohibition on entry revoked. It will be of paramount importance when considering whether to revoke a prohibition on entry whether new circumstances exist that were not present when the decision was made, and in particular relating to changes in the family's circumstances. Any children who will be affected have a right to be heard. The foreign service mission shall inform the applicant about the child's right to be heard. Such information shall also be provided by the UDI or by the police if the case is sent to them for a statement.