UDI 2010-009 Residence permit on an independent basis as a result of abuse or the sponsor's death

1. Introduction

This document provides guidelines on the processing of applications for residence permits on an independent basis pursuant to the Immigration Act section 53.

2. More information on the Immigration Act section 53 first and second paragraphs

The Immigration Act section 53 first paragraph states that a foreign national who holds a residence permit pursuant to sections 40 or 41 shall be granted a new residence permit on an independent basis by application if:

• a) the marriage or cohabitation has ceased due to the sponsor's death, unless special reasons are found against this, or
• b) the marriage or cohabitation has ceased, and there is reason to believe that the applicant or any children have been abused during the marriage/cohabitation relationship.

According to the Immigration Act section 53 second paragraph, a new residence permit on an independent basis can also be granted to a foreign national who holds a residence permit pursuant to section 40 or 41, if as a result of the breakdown of the marriage or cohabitation the applicant will encounter unreasonable difficulties in his or her home country on account of the social or cultural conditions there.

The Immigration Act section 53 first paragraph is an entitlement provision, by which the applicant is entitled to a residence permit if the conditions are met, while section 53 second paragraph is a ‘can provision’.

The Immigration Act section 53 first and second paragraphs apply to foreign nationals who have or have held family immigration permits pursuant to the Immigration Act sections 40 and 41. It is a condition that the person with whom the applicant has/has had a permit for reunification holds a permit without limitation. However, a breakdown of marriage or cohabitation is a requirement.

2.1. When the marriage or cohabitation has ceased due to the sponsor’s death – the Immigration Act section 53 first paragraph letter a)

The requirement for being granted a residence permit pursuant to this provision is that cohabitation has ceased due to the sponsor's death. What connection the applicant otherwise has to Norway is irrelevant.

It follows from the Immigration Act section 53 first paragraph letter a) that the residence permit is to be denied if special reasons indicate that the permit should not be granted. It follows from the preparatory works to the provision that this is meant to apply, for example, to cases in which the applicant has committed a criminal offence in connection with the death.

2.2. Abuse in the marriage or cohabitation relationship – the Immigration Act section 53 first paragraph letter b)

The purpose of the Immigration Act section 53 first paragraph letter b) is to ensure that foreign nationals who have residence permits for family immigration are not forced to remain in a marriage or cohabitation relationship in which he/she or any children are abused for fear of losing his/her residence permit in Norway. There is no requirement for a causal relationship between the abuse and the breakdown of the cohabitation or marriage. Which party took initiative to the end of the marriage or cohabitation is also irrelevant.

The following discussion of abuse is applied to the extent to which it is relevant in relation to the abuse of any children.

Abuse can be of a physical or mental nature, for example in the form of

• physical violence, such as pushing, pulling by the hair, hitting, kicking
• emotional violence, such as using threats (directly or indirectly), control, harass, ignore, or isolate
• sexual violence, such as being pressured into sexual acts, raped, or subjected to other sexual abuse
• material violence, such as breaking objects, or financial exploitation
• negative social control, which is various forms of supervision, pressure, threats and coercion used to ensure that individuals live according to family or group norms. Such control is systematic and may violate an individual’s rights under inter alia the UN Convention on the Rights of the Child and Norwegian law.

What constitutes abuse depends on an overall assessment. Abuse can be of a physical nature, for example in the form of violence or other kinds of assault, or it can be of a mental nature, for example threats of violence. The incidents must have resulted in a deterioration of the applicant's quality of life. The injury can be physical or mental, or a combination of both.

In the assessment of whether or not an abuse situation exists, the incidents described, their severity, the circumstances under which the abuse took place, and whether they form part of a pattern of actions or whether it was an isolated incident must be considered. An act which cannot be deemed to be abuse seen in isolation can still be deemed to constitute abuse if it is repeated over time.

General dissatisfaction with the marriage/cohabitation relationship, disagreements or differing opinions about roles due to cultural differences are not in themselves sufficient to deem that abuse has taken place.

2.2.1. Substantiation of abuse

In order for a permit to be granted pursuant to the Immigration Act section 53 first paragraph letter b), the abuse must be substantiated. The substantiation requirements are not strict. The applicant's statement about the abuse will serve as a basis unless there are clear indications that the statement is incorrect.

The applicant’s own statement will thereby form the starting point for the assessment. As a rule, the applicant is not required to document that abuse has taken place. Nor is it a requirement that the spouse/cohabitant has been reported to the police or convicted of the offence or offences. In principle, the immigration authorities are not to obtain a statement from the applicant’s spouse or cohabitant either, but this can be done on the basis of a concrete assessment.

2.2.2. The police’s preparation of the case

In cases of applications for continuation of a residence permit on grounds of abuse, the police, being the preparing body, must write a report on the case. In this context, the applicant must be summoned to appear in person in order to provide information that may be of significance to the decision, cf. the Immigration Act section 83.

The police report must include the following information (this list is not exhaustive):

• the applicant’s description of the alleged abuse, injury and scope,
• when and where the alleged abuse took place, with the most accurate time data possible,
• whether the applicant has sought out a women’s shelter or other place of refuge,
• whether the applicant has been treated by a doctor or a psychologist,
• other information, including follow-up questions relating to the above, that the police believe to be of importance to the case.

If there are children involved, it must be stated whether the child/children has/have been subject to or has/have witnessed abuse. If the applicant states that the child/children has/have been subject to or has/have witnessed abuse, then this should be described in accordance with the above list. It should also be stated whether the child welfare services have been contacted and whether the offence has been reported to the police.

The report is to be signed by the applicant.

If the police possess documentation that contains all the required information mentioned above, then it is not always necessary to write a separate report. However, this requires the case to be as well-described through existing documentation as it would have been had the police written a separate report.

The police are to inform the applicant that he/she can submit various types of documentation to supplement the above-mentioned statement. Such documents can be, for example, police reports, photos of injuries, doctor's reports or discharge summaries or statements from psychologists, women's shelters or any other persons that the applicant has been in contact with. If the offence has been reported to the police and the sponsor was interviewed, then it is desirable that the police enclose a copy of the interview record in the case. Any supplementary documentation that exists is to be enclosed with the report.

If there is reason to doubt whether the information in the statement is correct, for example because the statement contains conflicting information or if information provided by others conflicts with the applicant’s statement, then this could constitute grounds to request that the applicant submit any documentation to support his/her statement. In cases of doubt, it should also be considered whether a statement from the sponsor can help determine whether the alleged abuse took place or not. However, we ask the police to exercise caution in this context.

The application for a permit is submitted to the Directorate of Immigration for processing along with the above-mentioned report and any other documentation.

2.3. Social and cultural conditions in the home country - the Immigration Act section 53 second paragraph

The difficulties that the applicant will encounter in his or her home country due to social and cultural conditions must be a consequence of the breakdown of the marriage/cohabitation relationship in itself. It is the applicant’s status as divorcee/separated that may form the basis for a permit. General social and cultural problems in the applicant’s home country, including a difficult financial situation, unemployment etc. falls outside the scope of this provision.

The fact that the applicant will encounter difficulties as a result of the breakdown of the marriage or cohabitation relationship is not in itself sufficient for a permit to be granted. The difficulties must also be deemed to be such a burden that it would be unreasonable to demand that the person return to his/her home country.

General as well as individual circumstances can be considered in the discretionary assessment.

General circumstances (this list is not exhaustive):

• the home country’s family legislation relating to marriage, divorce and children
• practice in relation to the provisions of the legislation
• divorcees’ possibility of remarrying
• divorcee’s general social status
• the dowry practice in connection with marriage
• divorcees' possibility of entering the labour market

Individual circumstances (this list is not exhaustive):

• the applicant’s ethnicity, religion or tribe
• the applicant's level of education
• the applicant’s home in the home country – town/city or rural area
• the family's status (social class, caste, level of education)
• whether the applicant’s family in the home country expresses support for the applicant’s decision to leave the sponsor
• for female applicants, whether her male relatives in her home country support her or blame her for the breakdown of the marriage/cohabitation relationship.

If there are children involved, the applicant’s possibility of actual care and control of or access to the children in the home country must be taken into consideration.

A woman’s situation will often be difficult after a breakdown of marriage/cohabitation relationship in countries with dowry practices, in cultures where a family’s honour and status is connected to the woman’s reputation or chastity, and in countries where men have greater rights than women after a divorce. In many countries, divorced women are stigmatised. However, the issue to be considered is whether it is unreasonable to demand that the applicant return to his or her home country. The importance of such circumstances must therefore always be considered on a case-to-case basis.

3. Consideration for children

If the break-down of a marriage or cohabitation relationship results in the applicant no longer having a basis for residence in Norway, it must be considered whether a new permit should be granted out of consideration for his or her children, cf. the Immigration Act section 53 first paragraph letter b).

Underage children who have travelled to Norway with a parent and settled here with that parent and his/her spouse/cohabitant can have developed a connection to Norway that indicates that the parent and the child/children should stay in Norway after the breakdown of the marriage/cohabitation relationship.

The period of residence in Norway, seen in conjunction with the child's age, is the key assessment topic. In principle, a period of residence in Norway of less than three years will not in isolation be sufficient to deem a sufficient connection to exist. However, the period of residence must be seen in relation to other aspects of the child's situation. It must also be considered what conditions the child will encounter on return to his/her home country. Elements in this consideration include whether the child has family and/or care providers in the home country, and whether the child speaks the language of the home country.

Normally, children who attend school in Norway will be deemed to have a stronger connection than children under compulsory school age. A young child’s primary connection is normally deemed to be with its parents.

If the child is a teenager who has spent most of his/her childhood abroad and attended school abroad, then the connection to Norway can also be deemed to be relatively weak. Connection can also be established in the form of other family members in Norway.

Regardless of the issue of connection, strong humanitarian grounds may indicate that a residence permit should be granted out of consideration for the child, for example if the child has a physical or mental health condition that is being followed up in Norway.

4. Foreign nationals held abroad against their will

An applicant who would have been entitled to a residence permit pursuant to the act section 53 first paragraph letter b) if the person in question had stayed in Norway, can be granted a residence permit pursuant to the act section 38 if the applicant has left the realm against his/her will and been unable to return, cf. the Immigration Regulations section 8-9.

The typical case would be where a husband ‘sends’ a woman to the home country, stating the purpose of the trip to be a family visit. While the woman is abroad, her permit expires, and the spouse in Norway breaks off contact with her or states that he wants a divorce.

If all the above conditions are met, a permit can be granted pursuant to the act section 38, cf. the Immigration Regulations section 8-9:

• the sponsor is a Norwegian or Nordic national, or a foreign national who holds a permit that can form the basis for a permanent residence permit,
• the sponsor has broken off the marriage/cohabitation,
• the applicant stays in the home country or a third country, and was against his/her will unable to return to Norway before the permit expired. There is no requirement that the applicant must have been held by physical force. The applicant could for example be tricked, pressured or had his/her passport taken away,
• the applicant would have been granted a permit pursuant to the Immigration Act section 53 first paragraph letter b) if he or she was staying in Norway,
• an application for a new permit was submitted as soon as the applicant became aware of the situation, and as soon as it was practically possible for the applicant to contact the Norwegian authorities.

5. Other situations in which a residence permit can be granted pursuant to the Immigration Act section 38; residence permit on grounds of strong humanitarian considerations or a particular connection with Norway

If the conditions that are mentioned in section 4 are not met, it is alternatively considered whether there are other grounds that in practice indicate that the applicant can be granted a residence permit pursuant to the Immigration Act section 38. The application is considered in relation to the criteria given in section 38 first through fifth paragraph.

6. Maintenance and accommodation

In order for a permit to be granted pursuant to the Immigration Act section 53, the applicant must be guaranteed maintenance and accommodation, cf. the Immigration Act section 58. Applicants under the Immigration Act section 53 are not as a group exempt from the maintenance requirement. Based on an overall assessment on the basis of the Immigration Act section 38, exceptions can be made from the requirement for guaranteed maintenance for an applicant who meets the permit requirements stipulated in section 38, cf. the Immigration Regulations section 10-7 sixth paragraph.

7. Free legal aid

The Ministry of Justice and the Police has drawn up guidelines for processing the question of free legal aid for foreign nationals who apply for a renewal of their residence permit following the break-down of a marriage /cohabitation relationship, see appendix.

8. Deadline for leaving the country

If an application as mentioned above is rejected, it should be considered whether a longer deadline for leaving should be stipulated.

9. Notification to child welfare service

Any employee in the UDI has a duty of information to the child welfare service when there is reason to believe that the child is or will be exposed to abuse or serious neglect. 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 13-2, first paragraph letter a. See also UDI 2014-015 (only available in Norwegian) and UDI 2014-015V (only available in Norwegian).