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Norsk

UDI circulars

RS 2010-169
Document-ID : RS 2010-169
Case-ID : 09/2330-12 (15/10057)
Documentdate : 02.12.2015
Receiver :

Chiefs of Police
The foreign service missions
The Governor of Svalbard

Visa cases - right to grounds for decisions

 

1. Introduction

This circular replaces RS 2010-039 and concerns the right to grounds for decisions in visa cases – cf. the Immigration Act Sections 10 and 11, cf. the Immigration Regulations Sections 3-4, 3-10, 3-11 and 3-12, and the Public Administration Act Section 25.

The purpose of this circular is to adjust the guidelines that the foreign service missions, the police and the Governor of Svalbard must comply with when preparing visa cases/providing grounds for visa decisions.

In addition to the Immigration Act Sections 10 and 11, the Immigration Regulations Sections 3-4, 3-10, 3-11 and 3-12 and the Public Administration Act Section 25, rules concerning grounds for decisions are also given in the guidelines to Regulation (EC) No 810 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) with annexes and pertaining handbooks (which entered into force on 5 April 2010). The visa handbooks are called ‘Handbook for the processing of visa applications and the modification of issued visas’, hereinafter called Visa Handbook 1, and ‘Handbook for consular organisation and local Schengen cooperation’, hereinafter called Visa Handbook 2.

A link to the Visa Code and annexes is included here and to the visa handbooks and annexes here.

2. Requirement for grounds set out in the Public Administration Act

The public administration must give grounds for its decisions; cf. the Public Administration Act Section 25. It follows from general provisions of administrative law that each case shall be assessed individually. Rejections of visa applications must refer to the rules on which the decision is based. To the extent it is necessary in order to enable the applicant to understand the decision, the grounds shall also specify the content of the rules or the issue that forms the basis for the decision. In the grounds for the decision, the person making the decision shall also state the actual facts on which the decision is based. The grounds must also sufficiently reflect the assessments that have been made.

Norway’s participation in the Schengen cooperation means that we must take the other Schengen countries into consideration. If a rejection is based on our commitments under the Schengen cooperation, this must be stated in the decision.

3. General information about grounds in visa decisions

For grounds in visa decisions, see the Visa Code Article 32: ‘Refusal of a visa’ points 1 and 4, and Visa Handbook 1, Part II, point 12 and point 12.1: ‘On which grounds should a visa be refused?’.

In addition, the Directorate of Immigration (UDI) specifies that visas can be granted for specific purposes. However, there must be no reason to doubt the stated purpose. It is therefore important in visa cases that the person preparing the case and/or making a decision clarifies what the actual purpose of the visit is.

Also see the Immigration Act Section 10 third paragraph, which prescribes that immigration regulatory considerations are among the factors that the person preparing the case and/or making the decision shall consider and assign weight. He or she can base the assessment/decision on the immigration authorities’ general experience of applicants from the area in question, the political and social situation there and the applicant’s background. The person preparing the case and/or making the decision must use these general factors in the assessment of the actual facts in the case. He or she must also assign weight to the individual circumstances in the case. It is particularly important that factors such as family, work and real property, which tie the applicant to his/her home country or country of residence, are taken into consideration.

Even if the requirements for granting a visa are not met, the person preparing the case and/or making the decision must assess whether there are concrete circumstances that nonetheless make it reasonable to grant a visa. See the Visa Code Article 25(1) and the Immigration Act Section 11, cf. the Immigration Regulations Section 3-12 concerning visas on humanitarian grounds.

The best interests of the child must always be taken into consideration; cf. the Immigration Act Section 10 fourth paragraph.

The decision must state the factual circumstances that form the basis for the decision, and that all relevant circumstances have been considered. The decision shall contain grounds that to a sufficient extent show which factors have formed a basis for the assessment of the case, and how these factors have been weighed against each other.

4. Rejection on the grounds of commitments under the Schengen cooperation

The applicant shall not be granted a visa if he or she is registered in SIS (Schengen Information System). This also applies if one or more Schengen states are consulted, and one or more of the states recommend that a visa should not be granted. In these cases, there are often grounds for rejecting or expelling the applicant.

If a visa application is rejected pursuant to the Immigration Act Section 10 first paragraph (c), the person making the decision shall state the following grounds in the decision: ‘(applicant’s name) may not be granted a visa because he or she is registered in the Schengen Information System (SIS) with a view to refusing entry.’ In the decision, the applicant shall be given information about the possibility of requesting access to SIS and to appeal the registration with a view to correcting or deleting incorrect information; cf. the Act relating to the Schengen Information System Sections 15–20.

If the applicant’s visa application is rejected pursuant to the Immigration Act Section 10 first paragraph (d), the person making the decision must emphasise that the application has been rejected ‘as the applicant is considered to be a threat to public order, national security, public health or the international relations of Norway or another Schengen country’.

If the case has been distributed for consultation, cf. the first paragraph, the decision must contain a passage that reiterates that the visa application has been rejected on the basis of statements obtained from other Schengen states. The Schengen regulations state that the applicant is not entitled to know which state(s) has/have raised objections. The legal authority for this restricted access to information concerning the grounds is the Public Administration Act Section 19 first paragraph (a).

The foreign service missions and the Governor of Svalbard must also pay due attention to Article 21 of the Visa Code. This article specifies in more detail what assessments the person preparing the case and/or making the decision must make when considering a visa application.

 

Karl Erik Sjøholt
Head of Department

 

Contact: the Managed Migration Department, Section for Visa, Work and Study Permits

Latest changes
  • New: RS 2010-169 Visa cases - right to grounds for decisions (12/2/2015)

    The circular is now available in English.

Norwegian Directorate
of Immigration
Utlendingsdirektoratet
P.O. box 2098 Vika
NO-0125 Oslo
Norway

Editor in Chief: Stephan Mo