UDI 2014-008 Administrative measures relating to a host family (quarantine)

1. Introduction

This document provides guidelines for administrative measures relating to a host family in the event of breaches of conditions for residence permits for au pairs, cf. Section 27b of the Immigration Act. Pursuant to this provision, the Directorate of Immigration (UDI) may decide that no residence permit shall be granted to an au pair for the host family that has acted in breach of the permit. In the following, this administrative measure will be referred to as a disqualification period imposed on the host family.

The guideline deals with the conditions for decisions pursuant to Section 27b of the Immigration Act, the consequences of the decision, and case processing rules for consideration of cases pursuant to this provision. 

1.1 Purpose of the provision in Section 27b of the Immigration Act

The purpose of the provision is to prevent exploitation of au pairs and to protect the rights of au pairs. The decision to impose a disqualification period is intended to prevent further breaches of the conditions for residence permits for au pairs by the same host family.

The purpose of the provision is to prevent au pairs being used as cheap labour, and to prevent forced labour, human trafficking and other forms of exploitation.

Decisions on disqualification periods can only be imposed on host families.

2. Clarification of terms

2.1 Au pair

By ‘au pair’ is meant a young foreign national who comes to improve their language and possibly professional skills, as well as their general education, by acquiring a better knowledge of the recipient country, cf. the Council of Europe’s agreement on ‘au pair’ placement.

The au pair has signed the UDI’s standard contract with the host family in Norway and has been granted a residence permit as an au pair pursuant to Section 26 first paragraph letter (a) of the Immigration Act, cf. Section 6-25 of the Immigration Regulations.

2.2 Host family

By ‘host family’ is meant married couples, partners or cohabitants with or without children, or single parents, with whom the au pair is to live during their stay in Norway. Further conditions for the host family are set out in UDI 2012-015 Residence permits for au pairs.

The term ‘host family’ covers the family who enters into the UDI’s standard contract with the au pair. In cases where the au pair in reality lives with another family than the family with which the contract has been entered into, this family will also be covered by the term host family. Living with another family than the host family that entered into the contract is in breach of the permit, see section 3.1.2 below.

In the event of a breakdown of the host family, the disqualification period will be upheld for both parties.

3. In which cases can a disqualification period be imposed on a host family?

Decisions on disqualification periods can be imposed on host families if they grossly or repeatedly breach the conditions for residence permits as au pairs. The decision can be imposed on a host family that has entered into the UDI’s standard contract with the au pair, or other families with which the au pair has, in reality, lived.

Decisions to impose a disqualification period can be made on the basis of information that emerges both during and after the permit has expired.  

Decisions on disqualification periods can also be made ‘if a person in the host family has received a penalty or special sanction for an offence which is punishable by imprisonment and the breach has been committed against the person who at the time the offence was committed was working as an au pair for that person,’ cf. Section 27b second paragraph of the Immigration Act.

3.1 Conditions for imposing a disqualification period pursuant to the first paragraph

Section 27b first paragraph of the Immigration Act stipulates that if the host family ‘grossly or repeatedly’ breaches conditions laid down in or pursuant to the Immigration Act for a residence permit for an au pair, the UDI may decide to impose a disqualification period.

Breaches of the conditions can have taken place at the same time or at different times. Past breaches can also be emphasised when considering whether gross or repeated breaches exist.

3.1.1 ‘Conditions for a residence permit as an au pair’  

Section 3.3 of UDI 2012-015 and the UDI’s standard contract set out requirements for the au pair’s stay with the host family. It is breaches of these conditions that can constitute grounds for imposing a disqualification period.         

3.1.2 ‘Gross breaches’

By ‘gross breaches’ is meant breaches of a certain severity or of a certain scope. Account must be taken of which condition has been breached, the scope of the breach and its duration.

An example of a gross breach is if an au pair has lived with another family for the whole or parts of the au pair period, or has been instructed to perform significantly different tasks from what was agreed. This could be working in a restaurant or shop, or performing illegal work. It will also be a gross breach if the au pair has not received or has only received parts of their pay/pocket money.

3.1.3 ‘Repeatedly’

The condition ‘repeatedly’ refers to breaches that, individually, are not sufficiently serious to be characterised as gross breaches, but that, taken together, will be sufficiently serious.

‘Repeatedly’ can refer to:

• breach of the same condition over time

Example: extra tasks are repeatedly and over time imposed on the au pair for more hours than agreed, regardless of whether the au pair is paid extra for this.

• breaches of different conditions

Example: breach of the conditions concerning board, time off, holiday, insurance, the opportunity to take Norwegian language tuition, practise one's religion etc.

3.2 About breaches of the conditions in the first paragraph

A concrete discretionary assessment must be made on a case-to-case basis of whether the conditions for ‘gross’ or ‘repeated’ breaches are met.

Breaches of the conditions must be sufficiently substantiated for a disqualification period to be imposed on the host family. The requirement is that there is a general preponderance of probability. This means that it is more probable that the conditions have been breached than that they have not been breached.

3.3 Conditions for decisions pursuant to Section 27b second paragraph

Section 27b second paragraph of the Immigration Act states that decisions to impose a disqualification period can be made ‘if a person in the host family has received a penalty or special sanction for an offence which is punishable by imprisonment and the breach has been committed against the person who at the time the offence was committed was working as an au pair for that person,’

3.3.1 ‘Received a penalty or special sanction’

It is a condition that the penal provision in question carries a prison sentence. The maximum penalty for the penal provision in question determines whether a disqualification period can be imposed, and not the sentence imposed in the specific judgment.

Furthermore, the convicted person must be a member of the host family, either both or one of the host parents. A disqualification period can be imposed on both, even if only one of the host parents has been convicted of the offence.

To impose a disqualification period pursuant to Section 27b second paragraph of the Immigration Act, the judgment must be legally enforceable.

3.3.2 ‘The person who at the time the offence was committed was working as an au pair’

It is a condition that the criminal offence was committed towards the person working as an au pair for the host family in question at the time the offence was committed. As a rule, the au pair will be the aggrieved party in the criminal case.

4. The length of the disqualification period

The disqualification period imposed can be one, two or five years for breaches of the conditions for residence permits for au pairs.

The length of the disqualification period must be considered on the basis of a concrete overall assessment emphasising the nature of the offence and its scope and duration. Relevant elements in this assessment include what type of condition has been breached, how serious the breach is, how many times the condition has been breached and for how long the offence has been going on. A five-year disqualification period can be imposed for the most serious cases of breaches of conditions for residence permits for au pairs.

Example: It can constitute grounds for a five-year disqualification period if the au pair does not live with the host family, works significantly more hours than agreed, performs significantly different tasks from what was agreed, or is not paid pocket money.

The disqualification period imposed can be one, two or five years for received penalties or special sanctions. For very serious criminal offences, a ten-year disqualification period can be imposed.

5. Case processing rules

5.1 Power of decision

The UDI has the right to make a decision pursuant to Section 27b first and second paragraphs of the Immigration Act.

5.2 Opening a case

The UDI will open a case concerning possible administrative sanctions against the host family. The basis for opening a case can be a notification from the au pair, the police or others with knowledge of breaches of conditions for residence permits for au pairs, or a legally enforceable judgment against one or both of the host parents.

If the police become aware of breaches of the conditions for the permit, they can commence investigations to prepare the case for the UDI. The police must inform the UDI's Department of Managed Migration that an investigation has been opened into whether the conditions have been breached, so that any open cases can be put on hold. When the case has been prepared, the documents are forwarded to the UDI for consideration. The documents are sent to the UDI by mail to the UDI, attn. the Department of Managed Migration, and must be marked ‘au pair’.

If the conditions set out in Section 27b are met, the UDI can, on their own initiative, decide to impose a disqualification period.

5.3 Cases can be put on hold

In accordance with Section 6-25 third paragraph of the Immigration Regulations, the UDI can suspend consideration of an application for a residence permit pursuant to the first paragraph until it has been clarified whether a disqualification period shall be imposed on the host family pursuant to Section 27b of the Immigration Act.

5.4 Statement from the au pair

The UDI can request that the police or embassy invite the au pair for an interview so that the au pair can describe the breaches, if any, of the conditions. The UDI must describe which circumstances it wants to have clarified in the interview. Minutes from the interview must be added to the au pair’s case.

5.5 Advance notification

The UDI must send advance notification to the host family in question stating the that UDI is considering imposing a disqualification period, and which conditions have allegedly been breached, cf. Section 16 of the Public Administration Act (external link). A decision to impose a disqualification period is an invasive measure, and the host family must be given an opportunity to make a statement so the case is sufficiently elucidated.

5.6 Content of the decision

The decision must comply with the Public Administration Act’s provisions concerning individual decision, cf. Section 80 of the Immigration Act.

In the decision, the case officer must inform the host family about the right of appeal, the deadline for appealing, the appeal body, the procedures for appealing and the right to access the documents in the case, cf. Section 27 of the Public Administration Act.

5.7 The au pair’s residence permit

If the UDI decides to impose a disqualification period on a host family, and the au pair or a new au pair is still living with the host family, the au pair must be given a reasonable amount of time to change host families before the UDI, if applicable, decides to revoke the permit.

5.8 Appeal

The decision that no residence permit shall be granted to an au pair for a host family subject to a disqualification period can be appealed to the Immigration Appeals Board, cf. Section 76 first paragraph of the Immigration Act.