UDI 2010-190 Four-year requirement for family establishment

1. Introduction

This document provides guidelines for practical application of the requirement for sponsors to have worked or studied full-time in Norway for four years, cf. Section 40a of the Immigration Act (hereinafter the four-year requirement). The guideline also describes in more detail the documentation requirement in connection with assessing the requirement.

The guideline refers to Sections 40a, 40-41 and 48 of the Immigration Act, cf. Sections 9-1, 9-2 and Sections 10-23 and 20-10b of the Immigration Regulations. The guideline must be seen in conjunction with the provisions of the Act and the Regulations.

‘Sponsor’ means the person with whom the applicant wishes to be reunited or to establish family life in Norway, cf. the definition provided in Section 39 of the Immigration Act.

2. General information about the four-year requirement

The four-year work or education requirement was introduced for the purpose of limiting the influx of groundless asylum applications, and to provide an incentive to work and take an education and thus ensure integration. The four-year requirement applies to applications for family establishment and not family reunification. The four-year requirement is related to the sponsor’s grounds for residence.

The four-year requirement is an activity requirement that means that a sponsor who has been granted residence on humanitarian grounds, status as a refugee or residence pursuant to the regulations on family immigration, or a permanent residence permit on the basis of these grounds for residence, must have been engaged in full-time employment or education in Norway for four years before a permit for family establishment can be granted pursuant to Sections 40, 41 and 48 of the Immigration Act. The four-year requirement applies in addition to the subsistence requirement. This means, as a rule, that both the four-year requirement and the subsistence requirement must be met before family immigration can be granted.

An explanation is provided below of who the four-year requirement applies to and how the requirement can be met.

3. Sponsors not covered by the four-year requirement

Sponsors who hold a residence permit pursuant to Chapter 3 and 13 of the Immigration Act
The four-year requirement does not apply to sponsors who have been granted residence pursuant to the above-named provisions.

Norwegian and Nordic nationals
The four-year requirement does not apply when the sponsor is a Norwegian national. This means that, as soon as the sponsor becomes a Norwegian national, the four-year requirement does not apply to him or her. Nordic nationals, in this context have equal status to Norwegian nationals.

The sponsor’s age
The four-year requirement does not apply to sponsors who have reached the age of 67, cf. Section 9- 1 third paragraph of the Immigration Regulations.

Renewal
No requirement is made for four years' employment and education in connection with renewal, cf. Section 10-23 third paragraph of the Immigration Regulations.

4. Applications to which the four-year requirement applies

The four-year requirement applies to applications to establish family life with a sponsor as set out in Section 40a of the Immigration Act. The four-year requirement does not apply to applications for family reunification.

A description is provided below of which applications are deemed to be family establishment and family reunification applications, respectively, in the cases in question.

4.1 Spouses

The application shall be regarded as an application for family reunification if the parties have entered into marriage or conceived a child before the sponsor's entry into Norway. The same applies if the parties entered into marriage or conceived a child while they both held residence permits in Norway.

The application shall be regarded as an application for family establishment if the parties entered into marriage after the sponsor's entry into Norway.

4.2 Cohabitants

If the parties have lived in a permanent and established relationship of cohabitation for more than two years, cf. Section 41 first paragraph of the Immigration Act, the application will be regarded as an application for family reunification.

If the applicant has or is expecting a child together with the sponsor pursuant to Section 41 second and third paragraphs of the Immigration Act, the application is regarded as an application for family establishment, unless the parties' joint child was conceived before the sponsor came to Norway or while both parties held residence permits here.

4.3 Fiancés

The four-year requirement always applies when the sponsor is in one of the groups listed in Section 40a of the Immigration Act, and the applicant applies for a permit pursuant to Section 48 of the Act.

5. Sponsors covered by the four-year requirement

The four-year requirement is related to the sponsor’s grounds for residence. Only sponsors granted residence pursuant to the provisions listed above are covered by the four-year requirement.

Protection
The four-year requirement applies in cases where the sponsor holds a temporary residence permit pursuant to Section 28 of the Immigration Act. Section 28 of the Immigration Act corresponds to Section 17 of the Immigration Act of 1988.

Resettlement refugee
The four-year requirement applies in cases where the sponsor holds a temporary residence permit pursuant to Section 35 third paragraph of the Immigration Act. Section 35 third paragraph of the Immigration Act corresponds to Section 22 fourth paragraph of the Immigration Act of 1988.

Collective protection
The four-year requirement applies in cases where the sponsor holds a temporary residence permit pursuant to Section 34 of the Immigration Act. The provision corresponds to Section 21a of the Immigration Regulations of 1990.

Strong humanitarian considerations or a particular connection to Norway
The four-year requirement applies in cases where the sponsor holds a temporary residence permit pursuant to Section 38 of the Immigration Act. The provision corresponds to Sections 21 second paragraph and 21 fifth paragraph of the Immigration Regulations of 1990.

Family immigration
The four-year requirement applies if the sponsor him or herself holds a temporary residence permit in Norway pursuant to the provisions on family immigration set out in Sections 40 to 53 of the Immigration Act. The provisions correspond to Sections 23 and 24 of the Immigration Regulations of 1990.

Permanent residence
If a sponsor has been granted a permanent residence permit pursuant to Section 62 of the Immigration Act on the basis of the permits described in sections 4.1 to 4.5, the four-year requirement may also be applicable.

Permanent residence permits were previously referred to as settlement permits, cf. Section 43 of the Immigration Regulations of 1990. There is, in principle, a four-year requirement in cases in which a sponsor has been granted a permanent residence permit on the basis of different types of permits, and where some of these permits are subject to a four-year requirement. Exemptions from the fouryear requirement may be considered, in particular, in cases in which a four-year requirement would not apply if the sponsor had not been granted a permanent residence permit. See section 8 below for consideration of this type of case.

6. The requirement for full-time employment or education

In this context, full-time means

• work that in sum constitutes a full-time position
  
  
• full-time education or
  
  
• a combination of these that together constitute full-time activity

It is not a requirement that the education or work must have taken place over a continuous four-year period, or that it must have been completed immediately prior to the consideration of the application for family immigration. The four-year requirement can be met by alternating between full-time employment and full-time education for a total of four years. The requirement can also be met through a combination of part-time employment and part-time education, as long as the employment and the education in sum constitute full-time activity for the period in question. This, for example, means that if the sponsor has worked or taken an education that in sum corresponds to full-time activity for three months, and then only part-time activity for the remaining nine months of the calendar year, the three months of full-time activity will be included in calculation of the fouryear requirement, but not the nine months of part-time activity.

To qualify as full-time work (100%), the position must be equivalent to the industry standard at all times for the type of work in question. For auxiliary nurses, for example, a full-time position corresponds to 35.5 hours per week. Calculating work activity is based on monthly results.

If a sponsor has worked more than full-time for a period, this period cannot be used to supplement other periods in which he or she has worked part-time. This means, for example, that if a sponsor has worked in various positions that in sum constitute 150% of a full-time position for six months, and then worked 50% of a full-time position for six months, only the six months he or she worked 100% or more will count. The percentage that exceeds full-time cannot therefore, compensate for the period he or she worked part-time in order to meet the four-year requirement for the last six months.

Nor does the fact that a sponsor has worked part-time for very many years satisfy the requirement for full-time activity for a four-year period. This means, for example, that a sponsor who has worked 50% of a full-time position for eight years will not meet the four-year employment or education requirement. This will not normally be enough to make exemptions on special grounds, since the four-year requirement ceases when the sponsor becomes a Norwegian national.

The law does not state that the requirement for employment or education in Norway must be met after the applicant has been granted a residence permit. This means that an asylum seeker who has been engaged in employment or education during the application process in Norway (holding the permits required pursuant to the Immigration Act) can start fulfilling the four-year requirement before a final permit is granted. Employment or education that took place while a sponsor had illegal residence does not count in the consideration of the four-year requirement.

Earned holiday entitlement is counted in accordance with the employment percentage the holiday entitlement is based on.

Illegal employment does not count in consideration of the four-year requirement, even if the sponsor produces documentation of income-generating employment. Illegal employment is a breach of the Immigration Act and expulsion of the sponsor will be considered in such cases.

7. What is deemed to be employment or education?

The four-year requirement can be met through income-generating employment or education and be documented as described below, cf. Section 9-1 of the Immigration Regulations.

7.1 Documentation requirement for wage earners

The applicant must enclose documentation showing the duration of the sponsor's employment relationship and whether the employment is full-time or part-time. Among other things, this can be done by enclosing an employment contract or confirmation from the employer that the employment relationship exists or has existed.

Case officers can obtain information from the AA register, last tax settlement and A-meldingen (the A report) via eInteraction with the Norwegian Tax Administration and the Norwegian Labour and Welfare Administration (NAV), cf. UDI 2014-012 (only available in Norwegian) for more information about the four-year requirement.

7.2 Documentation requirements for self-employed persons

If the sponsor documents that he/she is self-employed and runs a sole proprietorship, the applicant must document the duration and scope of the work carried out through the enterprise. Among other things, this can be done in the form of descriptions of assignments and updated documentation of income and expenses. If possible, a statement from his or her accountant should be enclosed. For other forms of enterprises, it is a requirement that the sponsor draws a salary from the enterprise. By other forms of enterprises is meant, for example, a limited company, other limited liability companies, general partnerships and other unlimited companies. Earned income must be documented through accounts, and, if necessary, the sponsor’s bank statements that, over time, show that earned income has been drawn. All information on the bank statement other than entries that show the payment of wages from the enterprise can be blanked out. The duration and scope of the work must also be documented.

The case officer can obtain the latest tax settlement via eInteraction with the Norwegian Tax Administration.

7.3 When there is doubt about the authenticity of the employment relationship

If there is reason to doubt that an employment relationship is genuine, the police shall interview the sponsor on their own initiative. If the UDI, during its consideration of the application, finds that more detailed information is needed about the employment relationship, the case shall be forwarded to the police for the purpose of conducting an interview with the sponsor.

It may be relevant for the UDI to search the employer and employee register (AA register) to check the sponsor's work history. It may also be relevant to contact the sponsor's employer.

If the employment relationship/ pay conditions appear unlikely, it may be relevant to ask for documentation of the employer company's financial situation.

7.4 Documentation of education

Primary and lower secondary school, upper secondary school and higher education in Norway meet the requirement for education. The applicant him or herself must submit documentation from the relevant school/educational institution where the sponsor is taking or has taken an education. Furthermore, the applicant must also obtain documentation that the relevant education constitutes full-time activity.

For primary and lower, and upper secondary school, activity is considered full-time if a diploma or other documentation can be produced that shows that the education has been completed in the standard time frame. Periods of compulsory primary and lower secondary schooling (years one to ten) for children can be included without any form of documentation, on condition that the child has been resident in Norway.

As regards higher education, education is considered a full-time activity if it corresponds to 60 credits per year. The sponsor is required to document that he or she has taken the exam by submitting e.g. a diploma or transcript of grades. For students who take a longer course of education, such as a bachelor’s or master’s degree, it is sufficient that the sponsor documents that he or she has taken an average of 60 credits per year.

7.5 Introduction programme and tuition in the Norwegian language and social studies pursuant to the Introduction Act

Participation in an introduction programme pursuant to the Act on an introductory programme and Norwegian language instruction for newly arrived immigrants (Act of 4 July 2003 No 80) shall be regarded as full-time employment. Foreign nationals granted residence on humanitarian grounds are entitled and obliged to participate in introduction programmes. This means that a sponsor can meet two of the four years by participating in the introduction programme.

Participation in an introduction programme must be documented in the form of a decision on introduction benefits from the municipality and confirmation that the programme has been completed. It is important that the documentation shows the duration of the benefits period. Payment of introduction benefits is stated in the A report. Information about introduction benefits can also be obtained electronically from the municipality, cf. Section 17-7b letter (a) of the Immigration Regulations.

7.6 Qualifying programme pursuant to the Social Services Act

Participation in a qualification programme under the Social Services Act Chapter 4 must be documented in the form of a certificate from NAV that states the content and duration of the benefit.

The UDI will assess in each individual case whether the measure meets the requirement. This must be seen in relation to whether the content of the individual measure can be compared to employment or education. Typical cases that will count in the assessment are the Second Chance programme and labour market measures.

7.7 Qualifying measures that have a content equivalent to the activities listed in letters a to f

Participation in qualification measures must be documented in the form of a certificate from NAV that states what the measure has consisted of and how long it has lasted. This must be seen in relation to whether the content of the individual measure can be compared to employment or education.

Labour market training is an example of a qualification measure organised by NAV that counts as part of the four-year requirement.

7.8 Documentation of care of children after birth and adoption

Care of children is considered full-time employment for a period of 46 weeks after birth if the sponsor is entitled to parental benefit, cf. Section 14-6 of the National Insurance Act. In the event of multiple births, the period will be extended by five weeks per child. The same applies to adoption. Information about parental benefit is obtained via eInteraction with NAV, cf. Section 17-7d letter (b) of the Immigration Regulations.

7.9 Disability and pension

Documented sickness benefit, disability benefit or retirement pension shall be deemed to be equivalent to work. The duration and scope of the benefit must be clear from the enclosed documentation.

The employment percentage is determined in relation to the percentage of full-time employment that the National Insurance benefits constitute, cf. Section 9-1 second paragraph of the Immigration Regulations. This means, for example, that if the sponsor is 50% disabled, he or she must document that the remaining 50% of a full-time position is spent on other activities.

8. Exemption where special grounds exist

As stated in Section 40a third paragraph of the Immigration Act, an exemption may be granted from the four-year requirement if special grounds, including consideration of the family unit, so indicate. The provision is intended as a restrictive exemption provision to address special cases in which rejecting a residence permit application because the four-year requirement is not met would be clearly unreasonable.

The immigration authorities must make a concrete overall assessment of whether special grounds exist within the meaning of the Immigration Regulations. Special grounds must be weighed against immigration control considerations. Special circumstances are required over and above the fact that the applicant is the spouse or cohabitant of and has children together with the sponsor. Cases that are subject to a four-year requirement in which the requirement is not met will entail a temporary splitting-up of families. The four-year requirement is not normally a permanent obstacle to having a family life.

Possibility of having a family life somewhere else
A key factor in the assessment will be whether there are obstacles preventing family life in a third country. Whether there is a risk of persecution in the country where the family may settle together will therefore be relevant. Particular emphasis must be placed on whether the family life was established while both parties held residence permits in Norway, or whether the family was split up when the case was considered. Particular emphasis must also be placed on the child’s best interests. In cases in which the parties do not live together in Norway with a joint child, considerations of family life will only outweigh the four-year requirement in exceptional circumstances. This is because the splitting up of the family is only deemed to be temporary until the four-year requirement is met, or the sponsor becomes a Norwegian national.

The sponsor is close to meeting the requirement
The fact that the sponsor only has a short time left before meeting the four-year requirement for employment or education in Norway does not constitute special grounds for making an exemption to the requirement. Nor will the fact that a sponsor has had periods of almost full-time activity, but lacks e.g. 10 per cent of a full-time position, be deemed special grounds as a rule.

Permanent residence permits on the basis of different types of permits
In cases in which the sponsor has been granted a permanent residence permit on the basis of different grounds for residence, making an exemption to the four-year employment or education requirement can be considered in certain cases. It will be particularly relevant to consider making an exemption in cases where one or more of the sponsor’s permits have been granted on the basis of employment. This must be considered in relation to whether the parties are placed in a worse situation by the sponsor being granted a permanent residence permit than they would be if he or she still held a temporary residence permit. In such case, it must be considered whether the conditions for the permit granted to the sponsor that would not have entailed a four-year requirement are still met. Documentation of this must be obtained in connection with case processing.

Example: The sponsor came to Norway on grounds of family immigration with a spouse. The sponsor and previous spouse separate after 2.5 years and the sponsor is granted a renewed permit as an employee. After he or she has been in Norway three years, he or she is granted a permanent residence permit. If the sponsor still meets the requirements for the permit as an employee, an exemption may be made from the four-year requirement. This is because the sponsor would be placed in a worse situation by being granted a permanent residence permit, and because the considerations relating to the four-year requirement are not relevant in the case, since the sponsor has had a residence permit as an employee. Similarly, exemptions to the four-year requirement can be made if the sponsor firstly had residence as an employee and then through family immigration, if the conditions for residence as an employee have been met throughout the period.