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Case No. 2007/207

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Case No. 2007/207 SUPREME COURT OF NORWAY On 8th November 2007, the Supreme Court delivered the following judgement in HR-2007-1869-A, case no (2007/207), civil appeal against conviction A (Counsel Mr Harald Stabell) v. The Norwegian State, represented by the (Attorney General Mr Tolle Stabell, assisted Ministry of Labour and Social Inclusion by Counsel Mr Christian H.P. Reusch) J U D G E M E N T : (1) Mr Justice Flock: The case concerns the validity of an administrative decision pursuant to section 30 subsection 2 a) of the Immigration Act to expel a foreign national on the grounds that expulsion is necessary in the interests of national security. (2) A was born on ** 1956 in Northern Iraq. He came to Norway on 30th November 1991 together with his wife and three children as a UN quota refugee. The Norwegian Directorate of Immigration found that A satisfied the conditions to be recognized as a refugee and he and his family were granted refugee status by an administrative decision dated 13th April 1992. A was granted a residence and work permit, which was subsequently renewed several times. In 1998, he was granted a settlement permit in Norway. His wife and the four children that he had at the time were granted Norwegian citizenship in 2000. Later that year, A’s own application for Norwegian citizenship was rejected. In Norway, A is known as B. (3) When A came to Norway, the information he gave to the immigration authorities about his background and situation in Northern Iraq was very limited. On the basis of the information which is now available, his background can briefly be summarized as follows: (4) As a youth, A was an active member of an international Islamist Sunni movement known as the Society of the Muslim Brothers,. In 1974, he enrolled at a war college established by the Kurdistan Democratic Party. Later in the 1970s, he completed high school education and then studied Arabic and Sharia law. During the Iran-Iraq war which started in 1980, A was unwilling to do military service for Iraq and he fled across the mountains to Iran. While in Iran, he joined forces with other Iraqi Kurds to form an armed resistance movement in Kurdistan. After a while, he became the imam of the mosque in the refugee camp at which he was staying. (5) In 1984, A moved to Pakistan and stayed there for four years, during which time he continued with his education and studies. After a while, he became involved in work for Kurdish refugees and in 1988 he returned to Iran to continue working from there. He became involved with the Islamic Movement of Kurdistan, IMK, a movement whose goal was to free the Kurdish people and to apply Sharia law in Kurdistan and Iraq. In 1989, A was elected to the IMKs parliament. In 1991, he returned to Iraq where he participated in combats against the government army. Earlier the same year, he had applied on behalf of himself and his family for residence in a third country through the United Nations High Commissioner for Refugees. This is the background for his arrival in Norway in November 1991. (6) However, after A and his family were granted refugee status in Norway in April 1992, A did not remain in the country. A returned to Iraqi Kurdistan as early as May 1992 where he participated in the election for the autonomous region’s first parliament. He continued his work for IMK and became deputy head of the military office of the IMK. In the summer of 1992, his whole family travelled to Iraq and did not return to Norway until the Spring of 1993. In the following years up until 2000, A remained mostly in Norway where he worked, among other things, as an Islamic preacher. However, during this time he also made many trips to Iraq. (7) In 2001, IMK was split into four fractions and A was elected leader of one of them. On 10 December 2001, there was another another reorganization and Ansar al-Islam was founded by the merger of the militant Jund al- Islam group with the fraction headed by A. A was elected as leader of the organization, whose goal was to create an independent Islamic state in Northern Iraq. It is reported that, shortly afterwards, a community based on Sharia law was established in an area outside one of the villages. (8) On 17th May 2002, A travelled to Norway for a planned holiday. He attempted to return to Iraq in August the same year but was taken into custody in Iran and then sent to the Netherlands. He remained in prison in the Netherlands until January 2003 when he was returned to Norway. (9) After the US invasion of Iraq in March 2003, Ansar al-Islam has identified the US and their allies as its main adversaries. There is evidence that Ansar al-Islam and/or former members of the organization are responsible for several bombings and other terrorist attacks, including the bomb attack against the socialist party Patriotic Union of Kurdistan (PUK) on 4th February 2004 where more than 100 people were killed and over 200 wounded. By this time, the UN Security Council sanctions committee had already decided to add Ansar al-Islam to its list of entities and individuals who are linked with Al-Qaeda. This list is part of the UN’s effort to combat terrorism and effectively obliges all UN member states to take certain measures. (10) After giving notice in September 2002, the Norwegian Directorate of Immigration decided on 19th February 2003 to revoke A’s refugee status and travel documents, settlement permit, residence permit and work permit. The decision was also made to expel him from Norway and to register him in the Schengen Information System. The decision was made pursuant to an instruction issued by the Ministry of Local Government and Regional Development pursuant to section 38 subsection 1 of the Immigration Act. (11) A appealed against the decision to the Immigration Appeals Board. Before his appeal was decided, he instigated civil proceedings against the Norwegian state claiming that the administrative decision was invalid. The Immigration Appeals Board delivered its decision in the administrative appeal on 12th May 2005. The appeal was rejected. Like the decision of the Norwegian Directorate of Immigration, the appeal decision held that expulsion was necessary on the grounds of national security pursuant to section 30 subsection 2 a) and section 29 subsection 1 d) of the Immigration Act, and that A had committed serious and/or repeated breaches of the Immigration Act that justified expulsion, see section 29 subsection 1 a) of the Immigration Act. The decision of the Immigration Appeals Board was also made pursuant to an instruction from the Ministry of Local Government and Regional Development. (12) The appeal decision stated that Norway’s obligations pursuant to Article 3 of the European Convention on Human Rights (ECHR) prevented it from returning A to his home country because of the situation in Iraq. The Immigration Appeals Board therefore decided at the same time that expulsion would be suspended until the Ministry found that the situation in Iraq had improved. (13) After the Norwegian Directorate of Immigration had delivered its decision to expel in February 2003, A was accused, among other things, of offences in breach of the terrorism provisions in section 147 a) of the Penal Code. In that connection, he was detained in custody for a short period. The criminal charges were subsequently dropped. On 2nd January 2004, he was arrested and charged with two counts of aiding and abetting attempted murder in Iraq in connection with attempts by others to detonate hand grenades and suicide bombs. The charges also included breach of section 233 a cf. section 12 no.4 a) of the Penal Code on incitement to bodily harm or murder. These charges were also subsequently dropped after A had been detained in custody for approximately six weeks. (14) On 27th September 2005, the Oslo District Court pronounced the following judgment in the civil proceedings that A brought against the Norwegian state regarding the validity of the expulsion decision (case no. TOSLO-2004-42285 ): « 1. The Norwegian state, represented by the Ministry of Local Government and Regional Development, shall be acquitted. 2. No order for costs. » (15) The District Court held that the decision to expel in the interests of national security was valid, and that it was therefore unnecessary to consider whether the expulsion was also justified by A’s serious and/or repeated breaches of the Immigration Act. (16) A appealed against the Oslo District Court’s judgment to the Borgarting Court of Appeal. In the meantime, responsibility for immigration issues was transferred from the Ministry of Local Government and Regional Development to the Ministry of Labour and Social Inclusion. On 20th November 2006, the Court of Appeal pronounced the following judgment (case no. LB-2005-172948): « 1. The judgment of the District Court is affirmed. 2. A is ordered to pay to the Norwegian state, represented by the Ministry of Labour and Social Inclusion, the state’s costs for proceedings before the Court of Appeal in the amount of 290 000 – two hundred and ninety two – Norwegian kroner no later than 2 – two – weeks from service of this judgment, together with interest pursuant to the Interest on Late Payments Act section 2 subsection 1 first sentence calculated from the due date until payment is made. » (17) Like the District Court, the Court of Appeal held that the expulsion decision was valid, and found it unnecessary to consider whether there were justifiable grounds for expulsion pursuant to section 29 subsection 1 a) of the Immigration Act on account of serious and/or repeated breaches of the Immigration Act.
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