Norway Builds Fence Along Border with Russia to Deter Refugees and Migrants

By Sarah Alsaden1024px-norway_meets_russia
Graduate of the University of Michigan Law School (2016) and former Notes Editor for reflaw.org; currently admitted to the Ohio Bar.

In recent months, Norway has moved to tighten the influx of migrants crossing its border with Russia. Norway’s latest move has been the construction of a fence along the border to deter refugees and other migrants from crossing into the country. This decision to build a fence—even as a symbolic message to deter migrants—directly implicates Norway’s commitment under the Refugee Convention to refrain from engaging in refoulement. The building of the fence also follows Norway’s troubling implementation of a fast-tracked refugee status determination (RSD) process that effectively rejects most asylum seekers coming through at the border between Norway and Russia.

As a signatory to the Refugee Convention, Norway is bound by the Article 33(1) prohibition against refoulement. The building of fences may be considered refoulement when doing so results in the return of refugees to their country of origin, to a third country where the refugee’s acquired rights will not be respected, or to an unsafe third country. Once refugees reach a country’s border, they are considered to be within the state’s jurisdiction and are also considered to be physically present within the state.[1] Refugees physically present within a state’s territory are entitled to certain rights under the 1951 Refugee Convention and its 1967 Protocol.[2] The most important of these rights include the right to not be sent back to the country that persecuted them (Article 33(1)), the right to be free from discrimination (Article 3), and the right to administrative assistance (Article 25).[3]

The fence is especially troubling when coupled with Norway’s fast-track RSD process implemented earlier this year. In the past year, thousands of refugees—mostly Syrian—took the arctic route through Russia to arrive at Norway and claim asylum. Norway adopted a fast-track process that results in the automatic rejection of claims from certain refugees coming through Russia, without any real examination of whether these refugees will have their claims fairly examined in Russia or whether their acquired rights as refugees will be respected.

The fast track procedure is a result of an amendment to Norwegian law deleting a provision that would have required Norway to first ensure that asylum seekers’ claims be examined in the country from which they arrived before denying their claim and sending them back. The primary issue with the fast track procedure is that it results in the denial of entry and recognition of status for refugees passing through Russia who come from areas considered “safe,” without any substantive inquiry into whether they may be sent back to their country of origin or whether Russia has guaranteed the refugee their acquired rights. Some of the places that are considered safe countries of origin include Bangladesh, Egypt, India, Nepal, Pakistan, Turkey and regions like Kurdistan in Iraq and Kabul in Afghanistan. If the applicant is deemed to have come from an area where the situation is considered unsafe, the decision maker would further assess the specific risk of return.

While Russia is a signatory to the 1951 Convention and its 1967 protocol, there is mounting evidence suggesting that Russia’s asylum procedures are inadequate, resulting in both refoulement and the failure to provide refugees with their acquired rights under the Refugee Convention. Russian laws provide for the denial of refugee status applications from individuals who do not file within one day after entering illegally[4] or from individuals who have received a denial from another contracting state.[5] In practice, these provisions have served as the basis for denying substantive review of asylum seekers’ applications.[6] Moreover, individuals who have passed through one of Russia’s neighboring states may be denied “substantive examination” even if they were only in one of those countries for a few hours.[7]

Further, Norwegian immigration authorities have even recognized that Russia’s policies can lead to refoulement. Landinfo, an independent body within Norway’s immigration authority, recently released a report detailing deficiencies within Russia’s asylum policies. According to the report, 115,000 people were deported from Russia in 2015 including both asylum seekers who have had their applications denied and individuals who were expelled for violating administrative offenses. Landinfo reported that Russia had deported three Syrian nationals back to their country in 2015. The Landinfo report also noted that there have been forced expulsions of Syrians in 2014 and 2013. A UNHCR report also indicated that there have been at least twelve cases of refoulement by Russia to Syria. UNHCR representatives have also criticized Norway’s policy of sending asylum seekers back to Russia, calling it a “cause for concern” that Norway considers Russia a safe asylum country.

Insofar as the building of the fence is an attempt to ensure that refugees with valid claims remain in Russia where they may be deported back to their country of origin, Norway is complicit in the violation of the Refugee Convention’s prohibition against refoulement.

[1] Hathaway, The Rights of Refugees under International Law, 172.

[2] Id., 171-172.

[3] Id.

[4] The law does not mandate denial, it appears discretionary, and requires good cause to be shown if the individual faced an unavoidable obstacle that prevents them from coming forward with their claim within 24 hours. Russian Migration Law, Article 5 (7) and Article 4(1).

[5] Russian Migration Law Article 5 (3) and (7), respectively, provide that the grounds for refusing the consideration of an application includes “[i]f a person is justifiably denied refugee status in any of the contracting states to the [Refugee Convention], assuming that the law in that [other] state does not contradict the Russian law;” and “[i]f the person is compelled to cross into Russia illegally with the intention to apply for recognition as a refugee, and if that person does not apply/petition using the method specified in subparagraph 3 of paragraph 1 of Article 4 ​of this statute”).

[6] Ahoura Afshar, Refugees in Russia the Law on Refugees and its Implementation, 18 J. Refugee Stud. 468, 473 (2005).

[7] Id., at 472.

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