UDI 2010-045 Lapse of a permanent residence permit

1. Introduction

The purpose of this document is to provide some guidelines that can be used as the basis for interpreting and applying the Immigration Regulations section 11-8. The case officer will nonetheless always have to make a concrete assessment of each case and exercise discretionary judgement. However, out of consideration for the applicants, a certain clarification is needed to ensure uniform practice.

1.1. Overview of the rules

The main rule concerning the lapse of a permanent residence permit is set out in the Immigration Act section 62 fifth paragraph first sentence. The provision states that a permanent residence permit shall lapse when the holder has remained outside the realm for a period exceeding two years.

The Immigration Regulations section 11-8 first paragraph regulates cases in which a permanent residence permit lapses when the holder has spent one or more periods of short duration in Norway during the two-year period, and how ‘one or more periods of short duration’ during the two-year period should be calculated.

The Immigration Regulations section 11-8 second paragraph provides for exemption from the rules concerning the lapse of a permanent residence permit.

The rules regulating the right to apply to stay abroad for a period exceeding two years without the permanent residence permit lapsing are regulated by the Immigration Regulations section 11-8 third paragraph letters a)-c), cf. also fourth and fifth paragraphs.

2. Lapse of a permanent residence permit

In principle, the rules concerning the lapse of a permanent residence permit are absolute and leave no room for discretionary judgement. One exemption is included in the Immigration Regulations section 11-8 second paragraph; see 2.2 below and third to fifth paragraphs; see 3 below.

2.1. Application of the Immigration Regulations section 11-8 first paragraph

The provision contains more detailed instructions for when the stay abroad is deemed to be continuous and can lead to a permanent residence permit lapsing pursuant to the Immigration Act section 62. The foreign national’s connection to Norway is not weakened by short holidays when the person otherwise resides in the realm. Thus, stays not exceeding two months per calendar year are not deemed to be stays abroad in this context.

In order for a new two-year deadline as mentioned in the Immigration Regulations section 11-8 first paragraph to start running, the person in question must stay in Norway without interruption for a 15-month period. In this period, the person in question is not entitled to short holidays or similar stays abroad. Once the 15-month period is over, the person in question may again stay abroad for two years without losing his/her permanent residence permit.

2.2. Application of the Immigration Regulations section 11-8 second paragraph, cf. section 8-9

Exemption from the rule that a permit will lapse in the event of stays outside the realm exceeding two years.

Practice has shown that persons who hold permanent residence permits have been held against their will in their home country or abroad. This is a form of abuse that the Norwegian authorities do not wish to result in a permanent residence permit lapsing. It may for example be the person’s own family or other persons who are responsible for holding such persons against their will.

A permanent residence permit will not lapse because the holder has stayed abroad for more than two years if:

• the person is staying in his/her home country or a third country, and was, against his/her will, unable to return to Norway before expiry of the two-year deadline. There is no requirement that the person in question must have been held by physical force. He/she may for example have been tricked or pressured or had his/her travel document confiscated,
• the person or someone acting on his/her behalf has contacted the Norwegian authorities as soon as practically possible after having been held against his/her will abroad, and
• the person would have retained his/her permanent residence permit if he/she had returned by the two-year deadline.

A representative of the Norwegian authorities who receives notification that someone is being held against their will must take a written statement. The statement must include information about where the person is being held, in what way he/she is being held and who is holding him/her against his/her will. The statement should also include information about how the person can be contacted, for example an address or a phone number. The statement must be sent to the UDI as soon as possible.

3. Application of the Immigration Regulations section 11-8 third paragraph

3.1 General conditions

Pursuant to the Immigration Regulations section 11-8 third paragraph, it is a condition that a person who wishes to stay abroad for more than two years submits an application to prevent his/her permanent residence permit from lapsing. The person in question must write such an application him/herself, and must include all relevant information and enclose documentation of his/her stay abroad.

It follows from the Immigration Regulations section 11-8 fifth paragraph that if the application is submitted more than six months before the expiry of the two-year deadline, the applicant shall not lose his/her permanent residence permit if he/she returns to Norway within two weeks of receiving a rejection from the UDI. In its consultation proposal for the new Immigration Regulations of 16 February 2009, the then Ministry of Labour and Social Inclusion (AID) used the following example: A person applies more than six months before the two-year deadline expires. The person receives a rejection when two years and two months have elapsed since he/she left Norway. The person will not lose his/her permanent residence permit if he/she returns to Norway within two weeks of being informed of the decision.

If the person submits an application less than six months before the two-year deadline expires, it is at his/her own risk. If no reply has been received from the UDI and he/she continues to stay abroad after the two-year period has expired, the UDI will decide that the permanent residence permit shall lapse if the conditions for being granted an exemption pursuant to the Immigration Regulations section 11-8 are not met.

It also follows from a natural interpretation of this provision that it is not necessary for the person to apply to retain his/her permanent residence permit before he/she leaves the country. It may, for example, be the case that the person is unaware of the fact that the stay abroad will exceed two years at the time he/she leaves the country. However, the person must apply before he/she has stayed abroad for two years.

It must be clear that the applicant intends to settle again in Norway after the stay abroad, see the Immigration Regulations section 11-8 third paragraph.

It follows from established administrative practice that the following factors may be relevant:

• The length of the person’s stay abroad.
• The person’s preceding period of stay in Norway. The longer the person has lived in Norway, the stronger the connection to Norway will be, which increases the likelihood of the person returning to Norway. This factor must be considered in relation to how long the person is staying abroad.
• The person’s connection to Norway, for example whether he/she has a spouse, minor children or other relatives in Norway.
• The reason for the stay abroad, cf. for example 3.2 and 4.1 final paragraph. Whether it seems natural that the person in question will return to Norway. For example, weight may be given to stays abroad resulting from a connection with an employee of the Norwegian foreign service.
• What country the person intends to visit. If the person is returning to his/her former home country, it may indicate that the person’s bonds of attachment to his/her home country may become stronger, which may reduce the likelihood of the person returning to Norway.

The list is not exhaustive, and the case officer must exercise discretionary judgement in each individual case.

3.2 Special conditions

The Immigration Regulations section 11-8 third paragraph letters a) to c) stipulate special conditions for who may be entitled to stay outside Norway. In addition to the above-mentioned general conditions, one of these special conditions must be met. This list of conditions is exhaustive, and persons who are not mentioned under any of these alternatives will not be granted a permit to stay outside Norway for more than two years.

3.2.1 The Immigration Regulations section 11-8 third paragraph letter a)

This provision applies to persons of military service age who have to serve their military service for the country of which they are nationals.

It follows from long-standing administrative practice that ‘other service’ can be civilian national service or equivalent. The main rule is that it must concern compulsory service that follows from a duty for all citizens or a group of citizens from the person’s home country. The person must document that he/she is going to serve his/her national service. The UDI sets stringent documentation requirements. The person must present the original call-up notice from the state in question with an authorised translation into Norwegian or English. It must be clear from the call-up how long the service will last. It is a condition that the service exceeds two years.

3.2.2 The Immigration Regulations section 11-8 third paragraph letter b)

The provision applies to persons who are going to stay abroad in connection with ‘work’ or ‘education beyond ordinary upper secondary education’.

‘Work’ has not been defined, and the provision does not stipulate any limitations. The UDI does not, therefore, set stringent requirements for what type of work the person is going to carry out abroad. There must be no doubt, however, that the work that is to be carried out is paid work. Favours for friends and voluntary work will fall outside the scope of the provision. The pay must normally correspond to what is normal for the place and occupation concerned. Unpaid work or work that is as good as unpaid is not accepted. As a rule, the employment should also involve full-time work.

As documentation of employment, the person in question must present an employment contract signed by both the employee and the employer. The employment contract must state the following: pay, working hours and the duration of the employment. The employment contract should also state that the employment relationship is temporary, so that the connection to Norway is maintained and it is deemed likely that the person in question will return to Norway.

‘Education beyond ordinary upper secondary education’ is not defined in more detail in the provision. Based on a natural interpretation of the wording, it follows that primary school, lower secondary school and upper secondary school are not covered by the provision. In its consultation proposal for the Immigration Regulations of 16 February 2009, the then Ministry of Labour and Social Inclusion stated that, from an integration perspective, it is very unfortunate that children who live in Norway and who are going to stay in Norway in the future are sent back to their home country for the purpose of ‘upbringing’ and schooling during their childhood and youth. This is also the reason why the Ministry of Labour has abolished the right to stay abroad for more than two years in connection with ‘upbringing’, as was permitted pursuant to the previous regulations.

A natural interpretation of the provision would be that university and university college education is covered by the provision. Other education beyond ordinary upper secondary education may also be covered by this provision. Among other things, the assessment will emphasise whether the education is available in Norway. It is a precondition that the education exceeds two years.

As a rule, the study programme must be a full-time education, and the purpose of the stay abroad must be further education. Taking education in one’s former home country may reduce the likelihood of returning to Norway, as the person’s bonds of attachment to his/her home country may become stronger. In such case, the case officer must also consider how long the person has lived in Norway and what type of connection he/she otherwise has to Norway as regards family members etc.

The person must document that he/she has been admitted to an educational institution.

The admission document must be issued by the educational institution in question, and it must state how long the study programme will last.

3.2.3 The Immigration Regulations section 11-8 third paragraph letter c)

The provision applies in general to close family members of persons who are going to stay abroad in connection with work or education for more than two years.

The provision is exhaustive. Only spouses, cohabitants and children of the person who is staying abroad in connection with work or education may be granted a permit pursuant to this provision. The person in question must provide documentation in the form of an employment contract or confirmation of admission from the educational institution for how long his/her spouse, cohabitant, father or mother is going to work or study abroad. Furthermore, his/her relationship to the person who is going to stay abroad in connection with work or studies must be documented. Examples of such documentation include: marriage certificates, transcripts from the population register or birth certificates.

4. Application of the Immigration Regulations section 11-8 fourth paragraph

4.1 Length of the stay abroad

The wording of the regulations refers to the prior period of residence in Norway. The period of stay is therefore not limited to periods of residence on a permanent residence permit. The case officer must therefore exercise discretionary judgement in each individual case.

However, it follows from established administrative practice that case officers shall emphasise how long the person has held a permanent residence permit in Norway. It is reasonable that a person who has held a permanent residence permit in Norway for a long time is entitled to stay outside Norway longer than a person who has held a permanent residence permit for a short period of time.

Simple guidelines can be derived from administrative practice:

• Only in exceptional cases should a person who has held a permanent residence permit for one to three years be permitted to stay outside Norway for more than two years. In such case, his/her connection to Norway should be very strong, for example close family members. His/her need to stay abroad must also be great.
• A person who has held a permanent residence permit for three to five years may be entitled to stay outside Norway for up to three years. The total period spent abroad should nonetheless not exceed the length of time he/she has held a permanent residence permit in Norway. This may weaken his/her connection to Norway.
• A person who has held a permanent residence permit for five to ten years should be entitled to stay abroad for several years. The person’s connection to Norway must nonetheless be maintained, and the case officer must consider the applicant’s need to stay abroad.
• A person who has held a permanent residence permit for ten years or more may be granted a permit to stay abroad for a very long time. However, his/her connection to Norway must be maintained also in this context.
• A person who lived in the country for a long time before he/she was granted a permanent residence permit may be granted a permit to stay abroad, as the Regulations do not limit the residence period to only include stays on a permanent residence permit.

The reason for the absence from Norway must also be emphasised. It is reasonable that a person who, for example, is going to serve compulsory national service in his/her home country will be granted such a permit, even if his/her period of residence has been short. However, more is required to be granted a permit for persons taking an education beyond ordinary upper secondary school that is also available in Norway.

4.2 Extension of the stay abroad

It is not explicitly stated in the Act or the Regulations whether a permit to stay abroad can be extended. However, it follows from established administrative practice that the UDI may grant an extension of the permit.

In many cases, legitimate situations may arise during the stay of which the person had no knowledge when he/she applied for the first time. The case officer must make a concrete assessment of whether to grant each individual application for an extension, on the same basis as for first-time applications. In such case, the case officer must emphasise the person’s preceding period of residence in Norway and the purpose of the stay abroad. The person must submit an application for extension before the original permit expires.

5. Entering permission to stay abroad in travel documents, cf. the Immigration Regulations section 11-8 third paragraph

5.1 General information

It is the police that affix permits to passports and other travel documents, cf. the Immigration Regulations section 10-6 fifth paragraph. The police must stamp the permit with the police district’s stamp. The permit must also be dated and signed by the police. The permit must include the DUF number of the person permit holder. The person’s DUF number is stated in the decision.

5.2 Entering permission to stay abroad

Reference is made to Appendix 1 concerning how to such a permit is to be entered.

5.3 Ordering stamps

See Appendix 2.