Norway is not bound by the recast Reception Conditions Directive or the recast Asylum Procedures Directive. Norway participates in the Dublin cooperation through its association with the Schengen/Dublin system and applies the Dublin III Regulation within that framework. The relevant national framework is set out in the Immigration Act, last amended by Act 15 December 2017 No. 108, which entered into force on 15 December 2017 and 1 January 2018. There is also a separate set of regulations, the Immigration Regulations, which supplements the Immigration Act.

The Immigration Act sets out the national legal framework governing coercive measures against foreign nationals, including arrest and detention in immigration cases.

The relevant provisions include:

• Section 99: general conditions for the use of coercive measures, including necessity and proportionality;
• Section 105: reporting obligations and obligation to stay at a specific place;
• Section 106: grounds for arrest and detention;
• Section 106a: arrest, information, notification and presentation before the court;
• Section 106b: detention, court orders, time limits and release;
• Section 106c: special rules on arrest and detention of minors;
• Section 106d: assessment of risk of absconding;
• Section 107: immigration detention facilities;
• Section 130: special rules in cases involving fundamental national interests.

Section 106 of the Immigration Act provides the general legal grounds for arrest and detention of foreign nationals in immigration cases. The provision covers several situations, including identity clarification, implementation of return or transfer procedures, non-compliance with less coercive measures, and other immigration-control purposes specified in the Act. In cases involving fundamental national interests, Section 130 provides an additional legal basis for arrest and detention where the statutory conditions are met.

Arrest and detention under Section 106, first paragraph, letter a, may only be decided when measures are being taken with a view to clarifying identity. Arrest and detention under Section 106, first paragraph, letters b, c and d, may only be decided when measures are being taken with a view to removal. This requires an active and ongoing process, and there must be realistic prospects that the purpose of the detention can be achieved.

Arrest and detention may only be used where there is sufficient reason to do so. The assessment must be individual and based on the specific circumstances of the case. Several grounds may apply at the same time, for example where there is both uncertainty regarding identity and a risk of absconding.

The authorities must always consider whether less intrusive measures would be sufficient. Reporting obligations and an order to stay at a specific place are alternatives to arrest and detention, cf. Immigration Act Section 105. Detention must not be ordered if such measures are sufficient to achieve the purpose.

A coercive measure may not be used where it would constitute a disproportionate intervention in light of the nature of the case and the circumstances as a whole, cf. Immigration Act Section 99, first paragraph. Relevant factors include the strength of the detention ground, the foreign national’s cooperation, the expected progress of the case, the likely duration of detention, health, age and family situation.

Detention in the context of identification or verification of identity

Section 106(1)(a) of the Immigration Act allows for the arrest and detention of a foreign national where the person fails to cooperate in clarifying his or her identity pursuant to Sections 21 or 83, or where there are concrete indications that the person has provided a false identity.

The purpose is to establish the person’s correct identity and ensure availability while necessary identity checks are carried out. The threshold “concrete indications” does not require proof on the balance of probabilities, but must be based on objective and case-specific circumstances. Lack of identity documents will normally not, in itself, be sufficient. Relevant factors may include inconsistent information, false or unreliable documents, lack of knowledge of the claimed country of origin, incorrect information about travel route, language issues, or other circumstances suggesting that the stated identity is not correct.

Detention to determine elements on which the application for international protection is based, in particular where there is a risk of absconding

Norwegian law does not use the same formulation as the Reception Conditions Directive. However, Section 106 contains several grounds that may be relevant while an application for international protection is being processed.

Section 106(1)(b) allows arrest and detention where there are concrete grounds for assuming that the foreign national will evade implementation of a decision requiring him or her to leave Norway. This provision may also be used while a case is still pending, if the case may result in such a decision.

The assessment of whether there are specific grounds for believing that the foreign national may abscond must be based on an overall assessment of the factors set out in Section 106d. The list of factors in Section 106d is not exhaustive.

Section 106(1)(g) allows arrest and detention where the application for protection has been, or most likely will be, refused examination on the merits under Section 32, first paragraph (a) or (d), or fifth paragraph. This concerns cases where the application is expected to be rejected without substantive examination, for example because the applicant has protection in another country or has arrived from a country or area where he or she was not at risk of persecution. The purpose is to ensure that the applicant remains available while the case is processed and, where relevant, while return is prepared. This provision does not apply to minors or to applicants with minor children who have also applied for protection.

Section 106(1)(h) allows arrest and detention where the application for protection is deemed manifestly unfounded and will be processed within 48 hours. This provision is linked to the accelerated 48-hour procedure and is intended to ensure availability during rapid processing and possible return. It does not apply to minors or to applicants with minor children who have also applied for protection.

Detention in the context of a procedure to decide on the applicant’s right to enter the territory

Section 106(1)(i) of the Immigration Act provides that a foreign national may be arrested and detained where the person has been, or most likely will be, refused entry and rejected or expelled. The provision does not apply where the foreign national has applied for protection, is a minor, or is accompanied by minor children who do not fulfil the conditions for entry.

Detention in the context of a return procedure

Section 106(1)(b) of the Immigration Act provides that a foreign national may be arrested and detained where there are concrete grounds for assuming that the person will evade implementation of a decision requiring him or her to leave the country. The provision also applies during the processing of a case that may result in such a decision.

Risk of absconding must be assessed individually under Section 106d of the Immigration Act. An overall assessment must be carried out, and weight may be given to, among other things, whether:

• the foreign national has evaded implementation of an administrative decision requiring the foreign national to leave the realm; this includes not complying with a time limit for exit;
• the foreign national has explicitly refused to leave the realm;
• the foreign national has been expelled from the realm;
• the foreign national has been sentenced to a penalty or a special sanction in the realm;
• the foreign national has demonstrated a lack of cooperation in connection with doubt about his or her identity;
• the foreign national is avoiding or complicating preparations for removal;
• the foreign national has given false information to the Norwegian authorities in connection with an application for a permit;
• the foreign national has failed to notify a change of address;
• the foreign national is responsible for serious disturbances of the peace at a residential centre for asylum seekers;
• the foreign national has been found to pose a threat to fundamental national interests;
• the foreign national’s application for protection has been refused examined on its merits under Section 32, first paragraph (a) or (d), or fifth paragraph;
• the foreign national’s application for a residence permit has been rejected as manifestly unfounded;

The list in Section 106d is not exhaustive. The authorities may also take other relevant circumstances into account as part of the overall assessment.

Detention in the context of national security and public order

Section 130 of the Immigration Act contains special rules on coercive measures in cases involving foreign nationals considered to pose a threat to fundamental national interests. A foreign national may be arrested and detained under Sections 106 to 106c where it has been established in an immigration decision that the person constitutes such a threat, and measures have been initiated with a view to removal. The ordinary maximum time limits in Section 106b do not apply to detention under Section 130.

Detention for the purpose of a Dublin transfer

Section 106(1)(b), second sentence, provides that a foreign national may be arrested and detained where there is a significant risk that the person will evade implementation of a decision to transfer him or her to another European state under the Dublin cooperation, cf. Section 32, fourth paragraph.

A person cannot be detained solely because he or she is subject to a Dublin procedure. However, repeated applications in several countries, previous evasion, failure to comply with reporting duties or other concrete circumstances may support the finding of significant risk of absconding. The assessment is made on the basis of an overall and individual evaluation, and the factors listed in Section 106d of the Immigration Act are also relevant in this context.

Under Section 106(2) of the Immigration Act, a detention order cannot be issued if reporting duties or an order to stay in a specific place (as regulated under Section 105) are sufficient. A duty to report or stay in a specific place may be imposed under Section 105 of the Immigration Act on a foreign national if:

• the foreign national is not cooperating on clarifying his or her identity in accordance with Section 21 or Section 83 of the Act, or there are specific grounds for suspecting that the foreign national has given a false identity;
• there are specific grounds for suspecting that the foreign national will evade implementation of an administrative decision requiring the foreign national to leave the realm;
• the foreign national is an asylum seeker or is unlawfully residing in the country and has been sentenced to a penalty or apprehended in the act of committing a criminal offence that may result in a sentence exceeding six months’ imprisonment;
• the sole ground for residence in the realm is protection against removal under Section 73;
• the foreign national’s application for protection has been, or is most likely to be refused examined on its merits under Section 32, first paragraph, (a) or (d), or fifth paragraph;
• the foreign national’s application for protection is deemed to be manifestly unfounded and will be processed within 48 hours;
• the foreign national has been stopped in connection with entry and has been, or most likely will be, refused entry or expelled. This does not apply if the foreign national has applied for protection.

Under reporting duties, the person is obligated to report regularly to the police. The obligation to stay in a specific place refers to living at a private address or in an open reception centre.

More generally, the Immigration Act enshrines the principle of proportionality. By virtue of Section 99, a coercive measure may only be applied when there is sufficient reason to do so. Such a measure may not be applied when doing so would constitute a disproportionate intervention in light of the nature of the case and other factors. In the assessment of the feasibility of alternatives to detention, the person’s age and health conditions are considered, as well as the risk of absconding and whether the person stayed previously at a known address.

In the assessment of whether someone should be detained, the authorities will always implicitly consider alternatives. No distinction is made between different categories of third-country nationals when considering whether alternatives may be applied. The foreign national's age and health condition will be taken into consideration.

When considering whether an alternative to detention is applicable, the authorities also examine the risk of absconding and whether the foreigner has previously stayed at a known address. The economic cost of the decision is also a factor in the assessment.

The head of the local police or a person authorised by him or her will decide whether to impose alternatives to detention. The police will make an individual assessment on whether to apply an alternative to detention and whether detention is necessary and proportionate. If the person is being detained by the court, the police can release him or her and decide on an alternative to detention. The court will always consider whether an alternative to detention is sufficient and may impose alternatives.

The foreign national may request that the question of whether the conditions for imposing the obligation to report and to stay at a specific place are fulfilled, and whether there are grounds for upholding the order, be brought before the court.

Detention has no impact on the asylum procedure.

Language support (translation and interpretation services) is provided free of charge.

Detainees have access to free legal assistance throughout the court proceedings, as well as free language assistance (the Immigration Act provides for a right to legal representation). Under Section 92(4) of the Immigration Act, the court must appoint a legal counsel when reviewing the question of immigration detention under Section 106 of the Immigration Act. Wherever possible, legal counsel shall be appointed as soon as it becomes clear that a detained foreign national will not be released, removed or presented before the court for detention under Section 106 by the end of the second day after arrest.

If, following arrest, the police wish to request detention of the foreign national, the person must be brought before the District Court as soon as possible and no later than the third day after the arrest, cf. Section 106a of the Immigration Act. The court will assess whether the legal conditions for detention are fulfilled, including whether detention is necessary and proportionate and whether less coercive measures would be sufficient. A foreign national who is detained is entitled to legal counsel appointed by the court, cf. Section 92, fourth paragraph, of the Immigration Act.

According to Section 106b of the Immigration Act, detention must be as short as possible. Where detention is ordered, the court must set a specific time limit. As a general rule, the time limit may not exceed four weeks at a time. In cases concerning clarification of identity, the court may set a longer time limit, including a period of up to eight weeks, where special circumstances indicate that renewed judicial review after four weeks would be of no practical significance. Detention may be extended by court order, but each extension requires a renewed assessment of whether the statutory conditions are still met.

As a general rule, the total period of detention may not exceed 12 weeks, cf. Section 106b(3). Detention for the purpose of preparing or carrying out removal may only exceed 12 weeks where the foreign national does not cooperate with the return process, or where there are delays in obtaining necessary documents from the authorities of another country. Detention may not exceed 18 months in total, unless the foreign national has been expelled as a result of an imposed penalty or special criminal sanction.

For arrest and detention under Section 106(1)(g), (h) and (i), special time limits apply: arrest and detention may not exceed seven days where the basis is Section 106(1)(g), 72 hours where the basis is Section 106(1)(h), and 24 hours where the basis is Section 106(1)(i), see Section 106b(3).

There is a significantly higher threshold for the arrest and detention of minors. Under Section 106c of the Immigration Act, minors may only be detained where this is absolutely necessary and as a measure of last resort. The best interests of the child must be a primary consideration, and the authorities must always assess whether less coercive measures would be sufficient.

A minor who is arrested should normally not be held for more than 24 hours before being brought before the District Court together with an application for continued detention. The initial detention period for minors may not exceed three days. Continued detention beyond this period may only be ordered in exceptional circumstances, for example where the family or the minor actively obstructs the removal process or where removal is imminent. Even in such cases, the total detention period may normally not exceed nine days.

The stay at the detention centre is governed by Section 107 of the Immigration Act, the Immigration Regulations, and the Instruction for the Police Immigration Detention Centre. The Instruction sets out minimum standards for the treatment of detainees and regulates, among other things, information, privacy, visits, telephone calls, access to health services, outdoor access, activities, searches, use of force and administrative procedures at the detention centre. Detainees have access to outdoor areas. Within the detention unit, detainees may move freely during daytime and evening hours within their own department, subject to internal routines and security regulations. The detention centre is nevertheless a closed facility, and detainees may not leave the premises unless released by the police or by court order.

Detainees may receive visits. Visits from family members, friends and others must normally be agreed in advance and take place during designated visiting hours. Detainees may also receive visits from their lawyer, representatives of public authorities, diplomatic or consular representatives, humanitarian organisations and monitoring bodies. Legal assistance is provided through the detainee’s own lawyer, including court-appointed legal counsel where the case is brought before the court for detention review. Communication with lawyers is confidential and is not subject to ordinary restrictions.

Detainees may make telephone calls and communicate externally through the detention centre’s telephone system. Each detainee is entitled to outgoing calls corresponding to up to 300 minutes, or a maximum value of NOK 1,600, per week. Additional telephone access may be granted where justified. Telephone calls with lawyers or representatives of public authorities are not controlled or restricted. Mobile phones and other electronic communication devices are not permitted in the detention units and are stored with other personal belongings until release or removal.

Internet access is available within the detention facility under the centre’s regulations. Detainees may also send and receive ordinary post and packages, subject to applicable security rules. Correspondence with lawyers or representatives of public authorities is not controlled or restricted.

Interpretation and translation services are provided free of charge whenever necessary to ensure communication with the authorities, access to legal safeguards and understanding of decisions, rights and obligations. Information given to detainees is provided in a language they understand.

Medical assistance is available within the detention facility. Detainees have access to a doctor, and the detention centre facilitates access to statutory health services during detention. Where necessary, detainees may also be referred to external public healthcare services. Detainees with urgent dental needs receive necessary dental care. The detention centre cooperates with relevant public services, including health services, psychiatric services, child welfare services and guardianship authorities, where required to safeguard detainees with special needs.

Accommodation is organised according to gender, age and family situation. There are separate departments for adult men and adult women. Detainees are normally accommodated in single rooms with private sanitary facilities. Residential rooms have a separate bathroom with shower and toilet. Each single room is approximately 7.5 sq.m., with an additional bathroom of approximately 1.8 sq.m.

The rooms are equipped with basic furniture, including a bed, shelves, a table, drawers, a reading lamp and ceiling light. Each room has a television. Detainees are provided with soap and shampoo, or may use private toiletries if these do not pose a security risk. Bed linen and towels are changed when needed. Detainees have access to laundry facilities.

Private mobile phones, money, travel documents, identity documents and other items that may pose a security risk are not permitted in the detention units. Personal belongings that detainees cannot keep with them are stored securely until release or removal.

Norwegian law does not contain a general prohibition against detention of vulnerable applicants as a category. However, the general requirements of necessity and proportionality apply in all cases.

The person’s age, health, family situation and other vulnerabilities must be considered in the individual assessment. Less coercive measures must always be considered before detention is ordered.

At the immigration detention centre, particular consideration must be given to persons with special needs. This includes, among others, elderly persons, persons with disabilities, and persons with physical or mental illnesses or disorders. The instruction for the immigration detention centre provides guidelines on the facilitation and follow-up of persons with special needs during detention. The detention centre must, as far as possible, facilitate conditions adapted to such needs and seek to prevent harmful effects of detention. Persons with disabilities must, as far as possible, be given conditions equivalent to those of other detainees.

Where detention is prolonged, the authorities must also consider whether additional adaptations are required, provided this is compatible with security, order and operational considerations.

Where detention would be incompatible with the applicant’s physical or mental condition, or where less coercive measures are sufficient, detention must not be ordered or maintained.