UDI 2010-069 Lifting of a prohibition on entry or access to Norway for short visits

1. Introduction

Area of application of the guideline 

The guideline shall be used when processing applications submitted by persons who have been expelled from Norway and who are subject to a prohibition on entry that is still in force. Only applications submitted by persons who have left Norway, or, if applicable, the Schengen area, will be processed as applications to have a prohibition on entry lifted.

The guideline applies to applications for the lifting of a prohibition on entry, or access to Norway for a short visit, without the prohibition on entry being annulled, hereinafter referred to collectively as lifting of a prohibition on entry/access to Norway.

1.1 Background

The Immigration Act, the Immigration Regulations and the preparatory works to the Act contain little guidance on the interpretation and understanding of the provisions relating to the lifting of a prohibition on entry/access to Norway.

1.2 Objective

The objective of this guideline is to provide an overview of

• the applicable provisions
• guidelines on how the provisions should be understood and practised
• established practice
• case processing procedures

The guideline is also intended to ensure an efficient case flow.

The guideline will serve as an aid for staff at foreign service missions and case officers at the Directorate of Immigration (UDI), and as a source of information for applicants and/or their lawyers/other authorised representatives.

The guideline sets out already established practice pursuant to the Immigration Act of 1988 and does not entail any change of practice. The provision on lifting a prohibition on entry is worded differently in the Immigration Act of 2008 than in the Immigration Act of 1988. This does not entail any changes in practice either.

1.3 Clarifications

1.3.1 Prohibition on entry

If a person is expelled from Norway, he or she is subject to a permanent or temporary prohibition on entry. A prohibition on entry means that the expelled person cannot enter Norway for as long as the prohibition applies. If the person in question is registered in the Schengen Information System (SIS), the prohibition on entry applies to all countries that are parties to the Schengen Agreement.

The prohibition period is calculated from the date on which the person in question leaves Norway. If the foreign national is already abroad at the time the expulsion decision is made, the date of the first instance decision forms the basis for calculating the prohibition period.

Violation of a prohibition on entry, including attempts, is a criminal offence, cf. Section 108 third paragraph letter (e) of the Immigration Act.

In cases in which the prohibition on entry is limited, violation of the prohibition on entry can also constitute grounds for a new expulsion decision, which will lead to an extension of the prohibition on entry.

1.3.2 Lifting of a prohibition on entry

A person who is subject to a prohibition on entry may apply for an assessment of whether the prohibition on entry can be lifted, cf. Section 71 second paragraph of the Immigration Act. If the prohibition on entry is lifted, the person in question shall be treated on a par with persons who have not been expelled as regards the right to enter Norway.

Lifting a prohibition on entry is not the same as granting a residence permit. If a person requires a residence permit or a visa to enter the realm, he or she must apply to have the prohibition on entry lifted and also submit an application for the permit in question. EEA nationals, third-country nationals living in an EEA country and nationals not subject to a visa requirement do not need a permit to enter Norway. In principle, therefore, such persons only need to apply to have the prohibition on entry lifted.

Lifting the prohibition on entry is not the same as reversing the expulsion decision. When considering a request for reversal of a decision, it is the validity of the actual expulsion decision that is assessed. When considering an application to have a prohibition on entry lifted, the issue is not the validity of the expulsion decision itself, but circumstances that might have arisen following the expulsion, cf. section 4 below.

1.3.3 Access to Norway for a brief visit

An alternative to having a prohibition on entry lifted is to apply for a time-limited permit to enter Norway without the prohibition on entry being annulled. In such case, the permit is granted as a national visa. If such a permit is granted, the holder is obliged to leave Norway and, if applicable, theSchengen area when the permit expires. Such a brief visit to Norway does not entail an extension of the prohibition on entry.

1.3.4 The distinction between third-country nationals and persons covered by the EEA Agreement or the EFTA Convention

By third-country nationals is meant persons who are not nationals of a country covered by the EEA Agreement or the EFTA Convention (EEA nationals). Section 71 second paragraph of the Immigration Act regulates the lifting of a prohibition on entry/access to Norway for third-country nationals. Section 124 second paragraph of the Immigration Act regulates the lifting of a prohibition on entry/access to Norway for EEA nationals.

The rules concerning third-country nationals are dealt with in section 2-6 below. The rules that apply to EEA nationals are dealt with in section 7 below.

2. Overview of the conditions

In order to have a prohibition on entry lifted or to be granted access to Norway, the following conditions must be met:

• The applicant must have left Norway or, if applicable, the Schengen area
• As a rule, two years must have passed since the prohibition on entry entered into force
• The application must have been submitted in person at a foreign service mission
• The information in the application must be documented
• The applicant’s situation must have changed significantly since the time when the expulsion decision was made
• The change must be beyond the applicant’s influence
• The significantly changed situation must be such that, in light of the criminal offence that led to the expulsion, it will be disproportionate to maintain the prohibition on entry

A great deal is required for a prohibition on entry to be lifted. Reference is made to the assessment of different typical cases provided in section 5 below.

3. Power of decision and case processing procedures

It is the UDI that, in the first instance, considers applications for the lifting of a prohibition on entry, cf. Section 14-4 of the Immigration Regulations. The Immigration Appeals Board is the appeal body.

The decision is sent to the foreign service mission where the application was submitted or to a lawyer or other authorised representative who will notify the applicant.

The decision can be appealed pursuant to the provisions of the Public Administration Act Chapter 6 by the applicant him/herself or by his/her lawyer or other authorised representative. If the applicant submits the appeal him/herself, it must be submitted via the relevant foreign service mission. If the appeal is submitted by a lawyer or other authorised representative, it can be sent directly to the UDI.

4. The application

4.1 Application form

An application to have a prohibition on entry lifted is submitted by filling in the UDI’s form Application to lift a prohibition on entry or temporary access to Norway for a short visit without the prohibition on entry being revoked (external link to PDF). The application can be submitted on its own or as an enclosure with another application, for example an application for a visa or a temporary residence permit in connection with family immigration. The form is available on the UDI’s website and at foreign service missions. The application must be complete and it must include the applicant’s signature and photo.

4.2 Submission of an application

The application must be submitted to a Norwegian foreign service mission or the foreign service mission of another country that represents Norway, cf. Section 14-4 of the Immigration Regulations. In countries that do not have a Norwegian foreign service mission or where another country does not represent Norway, the application must be submitted to an embassy in a neighbouring country. A list of countries covered by another Norwegian foreign service mission is available at regjeringen.no (external link).

If the application concerns a residence permit, it must be submitted to a Norwegian foreign service mission in the applicant’s country of origin or another country in which the applicant legally resides, cf. Section 56 of the Immigration Act, cf. Section 10-2 third paragraph of the Immigration Regulations.

Applications that do not meet the above requirements will be rejected on these grounds.

In connection with the application, the foreign national must appear in person at the foreign service mission in question. This is particularly important in connection with applications for the lifting of a prohibition on entry/access to the realm in order to document that the applicant is staying outside Norway, and, if applicable, the Schengen area.

4.3 Documentation

Information that is relevant to the outcome of the application must be documented.

In addition to the completed application form, the following documentation must be enclosed:

• A copy of the applicant’s passport/birth certificate
• Documentation of the date of departure from Norway, for example an exit stamp in the applicant’s passport or tickets that substantiate when the departure from the realm took place.
• It is important that the grounds for applying to have the prohibition on entry lifted are documented. For example, transcripts of medical records or other documentation from medical personnel must be enclosed if illness is invoked as grounds for the application. If the applicant is to appear in a court case, the summons and documentation must be enclosed stating that the case cannot be heard without the person in question being present.

If the person in question has been expelled on the basis of criminal offences, the application must also include an up-to-date certificate of good conduct from his or her country of origin and/or another country in which the applicant has resided following his or her departure from Norway.

The documents must be available in Norwegian or English. Documents in other languages must be translated by an authorised translator before the application is submitted.

If the application is submitted as an enclosure with another application, for example an application for family immigration, it is not necessary to include a double set of documents.

5. When can the UDI lift a prohibition on entry or grant access to Norway for a short visit without the prohibition on entry being annulled?

5.1 Basis and legal authority

In principle, an expulsion applies for the time period stipulated in the expulsion decision. The UDI has a limited right to lift the prohibition on entry pursuant to Section 71 second paragraph of the Immigration Act.

The provision reads:

‘Prohibition on entry may, upon application, be lifted if warranted by new circumstances. If warranted by special circumstances, the expelled person may upon application be allowed to enter the country for a brief visit even if the prohibition of entry is not lifted, but normally not until two years have passed since his or her departure.’

The main rule that two years shall have passed applies both to applications to be granted access to Norway for a short visit and to applications for the lifting of a prohibition on entry.

The UDI’s right to lift a prohibition on entry is also limited after two years have passed.

5.2 International commitments

Pursuant to Section 3 of the Immigration Act, the Act shall be applied in accordance with international rules that are binding on Norway when they are intended to strengthen the position of the individual. Through Section 2 of the Human Rights Act, the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of the Child are directly implemented in Norwegian law.

5.3 Conditions

5.3.1 General

It is clear from Section 71 second paragraph of the Immigration Act that the main condition for lifting the prohibition on entry is that new circumstances must have arisen. Furthermore, it is stated that the main condition for being granted a brief visit is that there must be special circumstances.

An important factor in the assessment of whether to lift a prohibition on entry and whether to grant a brief visit is whether the situation has developed in a significantly different way than assumed at the time the expulsion decision was made. It also has a bearing on the assessment whether any changes are due to circumstances beyond the control of the foreign national and the family of the foreign national.

5.3.2 The distinction between new circumstances and special circumstances

By new circumstances is meant a more or less constant change of situation, for example if the spouse living in Norway becomes incapable of caring for joint children due to serious illness or death. Special circumstances can refer to a more temporary and specific situation, for example participation in the funeral of a close family member or if the applicant is a party in legal proceedings in Norway, and his/her due process protection will not be sufficiently safeguarded by being represented by a lawyer/other authorised representative, and it is impossible to carry out the interview by phone, video etc.

5.4 Assessing proportionality

5.4.1 Introduction

If new or special circumstances exist as mentioned above, these circumstances will be considered in relation to the criminal offence on which the prohibition on entry was based and in relation to the overall situation.

The question will be whether maintaining the prohibition on entry is seen as disproportionate in light of the new information.

If maintaining the prohibition on entry is deemed to be disproportionate, the UDI can lift the prohibition on entry. If it is regarded as disproportionate in light of the special circumstances not to grant a limited entry permit, the applicant may be granted access to Norway for a brief visit.

It is important to note that Section 71 second paragraph of the Immigration Act is a can provision, cf. the wording ‘the prohibition on entry can, on application, be lifted’. In a judgment of 18 April 2008 (HR-2008-00695-A), the Supreme Court states that

‘decisions made by the immigration administration pursuant to the Immigration Act Section 29 fourth paragraph third sentence cannot be tried by the courts to a greater extent than follows from general principles concerning the abuse of authority’.

In other words, the assessment is subject to the administration’s discretionary judgement. In the same judgment, the Supreme Court emphasises that the foreign national’s need for due process protection in cases that concern lifting a prohibition on entry will be sufficiently safeguarded in the expulsion case.

5.4.2 Marriage and cohabitation

When considering whether to lift a prohibition on entry/grant access to Norway, cohabitation is deemed to be equivalent to marriage if the conditions in Section 41 of the Immigration Act are met. In the following, the term marriage also refers to cohabitation.

Being married to a Norwegian national or another national who holds a residence permit in Norway does not in itself constitute circumstances that can lead to a prohibition on entry being lifted.

If the applicant had already entered into marriage in Norway at the time of expulsion, the marriage in itself is not deemed to constitute new circumstances.

A marriage that was entered into after the applicant was expelled from Norway is deemed to constitute changed circumstances, but this is a change that is within the applicant’s control. It is also assumed that the spouses have not had reasonable expectations of living together in Norway as long as one of the parties is subject to a prohibition on entry. As a rule, therefore, a marriage entered into following an expulsion decision will not have a bearing on the case.

In this context, reference is made to the Supreme Court decision in Norwegian Supreme Court Report Rt. 2000 p. 591, which states that it will be normal for an expulsion decision to have a negative impact on family life, because it must be assumed that families will be separated as a result of the expulsion. This is even more relevant in the case of a marriage that was entered into after an expulsion decision was made. Reference is made to the fact that the prohibition on entry represents an obstacle for the spouses, but not an intervention in an already established situation.

Concerning the question of whether EHCR Article 8 favours the lifting of a prohibition on entry, the decisive factor is whether maintaining the expulsion from Norway is proportionate in relation to its negative effects on private and family life. In Norwegian case law, it is assumed that the assessment pursuant to EHCR Article 8 is not significantly different from the proportionality assessment provided for in the Immigration Act Section 29 second paragraph, now Section 70. It is assumed that this also applies to assessments in cases concerning the lifting of a prohibition on entry.

EHCR Article 8 does not as such confer a right to establish a new family life or re-establish family life in a specific country. The convention only protects the parties from intervention in an already established relationship. In this context, reference is made to the European Court of Human Rights’ judgment of 26 April 2007 (EMD-2003-16351 - link to hudoc.echr.coe.int.), paragraph 48.

5.4.3 Children

The best interests of the applicant's children will always be a relevant factor when considering whether to lift a prohibition on entry/grant access to Norway.

The fact that the applicant has children in Norway is not in itself sufficient grounds for lifting the prohibition on entry/granting access to Norway.

If the applicant had children at the time of expulsion, his or her connection to Norway through the child is a factor that is considered when the decision is made and therefore is not a new circumstance in the case. Only changes in the child’s situation that arose after the expulsion decision was made are relevant to the assessment. The decisive factor is whether the child’s current care situation makes the applicant’s presence necessary.

If a child is born to the applicant after the expulsion decision was made, this will entail a significant change in the applicant’s situation. Such a change cannot be said to be beyond the applicant's influence. For the relationship to be given weight, information must be available information about the child’s care situation that makes the applicant’s presence necessary and that indicates lifting the prohibition on entry/granting access to the realm.

In any case, the question is whether maintaining the expulsion decision will be disproportionate in relation to the child.

Pursuant to the Convention on the Rights of the Child Article 3, the best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. However, the provision does not preclude expulsion simply because the person in question has children. Reference is made to the preparatory works to the Immigration Act Ot.prp.no 75 (2006-2007) p. 283, which clarifies that Article 9 No 4 of the Convention on the Rights of the Child assumes that states can make expulsion decisions even if this means that a child will be separated from a parent. It follows from this that the provision does not preclude rejection of an application for the lifting of a prohibition on entry/access to the realm in cases where the expelled individual has children in Norway.

In the assessment, the negative consequences of the prohibition on entry for the children must be weighed against the offences that form the grounds for the expulsion decision.

The Supreme Court judgment of 18 April 2008 (HR-2008-00695-A) underlines that having a child in Norway does not constitute sufficient grounds for having a prohibition on entry lifted. The firstvoting justice states that:

‘as a general view, I note that, if applying for political asylum and having children in the country were sufficient grounds to revoke an expulsion decision, the effectiveness of the expulsion decision would be significantly undermined.’

This statement reflects the strong immigration policy considerations that must be taken into account in cases that concern the lifting of a prohibition on entry, also in cases involving children.

5.4.4 Health

Only in exceptional cases can the health situation of the applicant or a member of his or her family lead to a prohibition on entry being lifted/access to the realm. Examples of health situations that may be relevant in this context include serious illness or the death of close family members staying in Norway, which makes the applicant’s presence necessary. This applies, for example, if the spouse in Norway dies or becomes seriously ill and cannot take care of the children, and the children’s care situation makes the applicant’s presence necessary.

It is relevant whether it is possible for the family staying in Norway to travel to the applicant’s country of origin.

5.4.5 Work

An offer of employment in Norway is not in itself sufficient grounds for lifting the prohibition on entry/granting access to the realm.

5.4.6 The security situation

Arguments relating to changes in the security situation in the applicant’s country of origin and his or her need for protection pursuant to the provisions of the UN Refugee Convention cannot be given weight in a case concerning the lifting of a prohibition on entry/access to the realm.

However, the arguments must be considered in light of EHCR Article 8 if the applicant has a spouse and/or children in Norway. In this context, reference is made to the assessment described in sections 5.4.2 and 5.4.3 above.

5.4.7 Other relevant factors in the proportionality assessment

• Does the applicant meet the conditions for being granted a permit in Norway?
• Has the applicant not paid his/her deportation expenses?
• Has the applicant been convicted of a crime or committed gross breaches of the Immigration Act after the expulsion decision? If new criminal offences or gross breaches of the Immigration Act have been committed, this will be given decisive weight in the assessment. If the applicant has been expelled for criminal offences, failure to present a certificate of good conduct may have a negative effect on the assessment.
• Has the applicant violated the prohibition on entry?
• Information about new or special circumstances that are not documented will not be given decisive weight.
• Changes in regulations and practice

In connection with the amendments to the Regulations that entered into force on 24 October 2010, a prohibition on entry imposed for breaches of the Immigration Act Section 66 first paragraph letters (a) and (d) and Section 66 second paragraph will, as a rule, apply for a maximum of five years, cf. Section 14-2 second paragraph of the Immigration Regulations. If a permanent prohibition on entry was imposed on an applicant before 24 October 2010 as a consequence of breaches of the Immigration Act, the UDI can decide, on application, that the prohibition on entry will be lifted when five or more years have passed. This does not apply in cases where public order considerations or fundamental national interests make it necessary to uphold a permanent prohibition on entry.

It follows from Section 14-2 third paragraph third sentence of the Immigration Regulations, which entered into force on 1 March 2011, that a prohibition on entry imposed pursuant to Section 66 first paragraph letter (a) or (d) and Section 66 second paragraph of the Immigration Act shall, as a rule, not apply for more than two years when the foreign national has children in Norway. It is also a condition that the foreign national has, for a long period, lived with the child or exercised right of access of a certain extent, and that he or she shall continue to live with or exercise right of access to the child. If an applicant had children in Norway at the time of the decision and he or she is subject to a prohibition on entry of more than two years' duration, the UDI can, on application, decide to lift the prohibition on entry when two or more years have passed. This does not apply in cases where public order considerations or fundamental national interests make it necessary to uphold a longer prohibition on entry.

6. About the lifting of a prohibition on entry for the Schengen area only

On application, it is possible to have a prohibition on entry lifted for the Schengen area only. This means that the registration in SIS is deleted, but that the prohibition on entry into Norway is upheld. Norway's right to delete a registration in SIS follows from the Schengen Convention Article 106 No 1.

The issue to be considered here will be the applicant’s need to gain access to, and his or her connection to, other Schengen countries, seen in relation to the grounds for expulsion.

The need and connection must be documented.

Reference is also made to the fact that all Schengen countries can grant a national visa or residence permit to an applicant who is registered in SIS. The applicant must contact the authorities in the country he or she wishes to visit or reside in. If another Schengen country grants a permit to the applicant, this country must submit a request to the Norwegian authorities to delete the SIS registration. Only the Schengen country that made the registration is authorised to have it deleted, cf. the Schengen Convention Article 106 No 1. A written request from the authorities in this country is required for deletion of a registration to be considered.

7. About the lifting of a prohibition on entry for EEA nationals in particular

7.1 Basis and legal authority

On application, the UDI is authorised to lift a prohibition on entry for an expelled EEA national pursuant to Section 124 second paragraph of the Immigration Act and Section 19-30 of the Immigration Regulations.

In the same way as for third-country nationals, EEA nationals can apply to have a prohibition on entry lifted or to be granted access to Norway for a brief visit without the prohibition on entry being annulled.

The guidelines set out in sections 1 to 5 in this guideline apply with the following clarifications.

7.2 International commitments

Chapter 13 of the Immigration Act, including Section 124, implements in Norwegian law Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Pursuant to Article 32 of the Directive, a member state shall reach a decision on an application to have a prohibition on entry lifted within six months of its submission.

See also 5.2 above concerning Section 3 of the Immigration Act.

7.3 Briefly about the expulsion of EEA nationals

Unlike expulsions of third-country nationals, expulsions of EEA nationals cannot be justified by considerations of general deterrence. It is a requirement that there are personal circumstances relating to the EEA national that indicate that he/she will commit criminal offences or disrupt public order. The threat of future criminal offences must represent a real and immediate risk at the time of assessment.

More detailed guidelines to the conditions for expelling EEA nationals are provided in UDI 2010–022 Rejection and expulsion of EEA nationals. 

The prohibition on entry can be made permanent or temporary, but it shall not apply for less than two years, cf. Section 124 of the Immigration Act. The duration of the prohibition on entry shall not exceed the period that is necessary for public order or security reasons, cf. Section 19-30 of the Immigration Regulations.

7.4 Conditions for lifting a prohibition on entry

It is clear from Section 124 second paragraph of the Immigration Act that the main condition for lifting the prohibition on entry is that new circumstances must have arisen.

Pursuant to Article 32 of the Citizens Rights Directive, an EEA national can retrospectively apply to have a prohibition on entry lifted on grounds of changes in the circumstances that formed the basis for the expulsion decision.

When considering whether new circumstances indicate that a prohibition on entry for an EEA national should be lifted, it must be assessed whether expulsion is still necessary on public order or security grounds. For more detailed guidelines on such assessments, reference is made to UDI 2010–022. If public order or security grounds indicate that expulsion is no longer necessary, the prohibition on entry shall be lifted.

If expulsion is still necessary based on public order or security grounds, it must be assessed whether there are other new circumstances that indicate that the prohibition on entry should nonetheless be lifted. Reference is made to section 5.3 ff.

The main rule is that a year must have elapsed since the person in question left the country before lifting the prohibition on entry can be considered.

If a person has been expelled pursuant to the rules that apply to third-country nationals, but he or she is an EEA national when he or she applies for the prohibition on entry to be lifted, it must be considered whether the conditions for being expelled pursuant to the current EEA regulations are met. The question to be considered will be whether, in light of the offence for which the person in question has been expelled and other circumstances, personal circumstances can be said to exist that indicate that he or she will commit criminal offences or disrupt the public order in future.

7.5 Conditions for being granted a brief visit without the prohibition on entry being annulled

Pursuant to Section 124 second paragraph second sentence of the Immigration Act, in special circumstances, a person who has been expelled may, upon application, be granted entry to the realm for a brief visit. The assessment is the same as for third-country nationals, namely that a temporary and specific situation must exist that necessitates a brief visit to Norway. Examples of such situations are provided in Section 19-30 second paragraph of the Immigration Regulations.

The main rule is that a year must have elapsed since departure before access to Norway can be considered.