UDI 2014-009 Residence permit for self-employed persons

1. Introduction

This document provides guidelines for the processing of applications for residence permits in order to engage in self-employment in Norway, cf. the Immigration Act Section 25 first paragraph, cf. the Immigration Regulations Section 6-18.

2. Conditions

There are several conditions that must be met in order for someone to be granted a residence permit as a self-employed person. In addition to the conditions described in more detail in sections 2.1. to 2.6 below, it is a requirement that the person is 18 years or older, cf. the Immigration Act Section 25 first paragraph, and that permission for the enterprise has been granted under other legislation, cf. the Immigration Regulations Section 6-18 first paragraph letter (c). Such permission can be approval of premises, for example.

2.1. Skilled worker

The applicant must have qualifications as a skilled worker, cf. the Immigration Regulations Section 6-1 first paragraph first sentence and second sentence letter (b), cf. Section 6-18 first paragraph letter (a).

Having 'qualifications as a skilled worker' means that the applicant must have vocational education corresponding to at least three years of upper secondary education, hold a craft certificate or have completed a university college or university education or have special qualifications. To be deemed to have special qualifications, the applicant must have detailed documentation of lengthy work experience resulting in a level of expertise equivalent to that gained through vocational education. More information about the above-mentioned alternatives are provided in the UDI 2014-018.

It is also a requirement that the applicant has been granted approval or authorisation by the relevant specialist authority if he/she is trained for an occupation/profession that is subject to statutory or regulatory qualification requirements. This only applies if the work the applicant is to carry out requires such education, see section 2.2.0. This means that the applicant practises the occupation/profession that is subject to a qualification requirement.

2.2. Connection between tasks and qualifications

It is a condition that the work that the applicant is to do in the enterprise requires the self-employed person to have the qualifications required of a skilled worker, cf. the Immigration Regulations Section 6-18 first paragraph letter (a). This means that the tasks must be related to the applicant's professional qualifications. This will depend on a concrete individual assessment. Among other things, this assessment shall take into account whether the applicant will run the enterprise alone. In such case, the person in question may need qualifications in different fields, and the qualifications as a skilled worker must be in the field where the applicant must be expected to do most work. For example, a person who is to run a plumbing company alone will need to be a qualified plumber, cf. section 2.1. If the same person plans to employ one or more plumbers and function as general manager of the enterprise, the person may be a plumber, but he or she could also have qualifications in the fields of finance, accounting or similar. For enterprises that provide services that cannot be linked to one or more concrete occupations/professions, the applicant's description shall be taken into account in the assessment of what qualifications the person's duties require. A consulting firm offering services to businesses, for example, could demand that applicants have qualifications as a skilled worker in fields such as accounting, law, languages or communication.

2.3. Long-term operation

It is a condition that the enterprise is run on a long-term basis. It is sufficient in this context that it is deemed probable, on the basis of the object of the enterprise, that the enterprise will be in active operation for at least three years from the present. Enterprises that will clearly be short-lived fall outside the scope of this provision.

2.4. Form of business organisation

The provision in Section 6-18 of the Immigration Regulations applies to self-employed persons. There is no requirement for any specific type of business organisation, but the foreign national must have a central, independent and leading role in the enterprise, cf. the Ministry of Labour and Social Inclusion's circular on the entry into force of the new Immigration Act and new Immigration Regulations from 1 January 2010 (A-2009-063) (only available in Norwegian). If the enterprise is established as a limited liability company and the foreign national will, in addition to being a shareholder, also take active part in the running of the company, the application shall be considered pursuant to the Immigration Act Section 6-1 first paragraph. The same applies if the foreign national is to run/take part in the running of a Norwegian-registered foreign enterprise (NUF). In all other cases, it will depend on an individual concrete assessment of whether the form of incorporation in question and the applicant's participation in the enterprise's operation comply with the purpose of the provision.

The Act does not regulate how extensive the foreign national's work/activity must be, but, pursuant to established administrative practice, it must, also for self-employed persons, be at a level corresponding to full-time employment. When the enterprise in question is a sole proprietorship, this condition is assumed to be satisfied. For a level of activity lower than full-time, an individual assessment is required to determine whether the active participation condition is nevertheless satisfied.

2.4.1. Taking over an existing enterprise or starting a new enterprise

The applicant can start a new enterprise or take over an existing one. This will have a bearing on the documentation requirement, cf. section 3.2.

2.4.2. Continuing own/existing enterprise

A foreign national who has held another type of residence permit in Norway that allowed him/her to engage in self-employment can apply to continue his/her own enterprise with a permit pursuant to the Immigration Regulations Section 6-18. In such case, the same conditions must be met as for starting up a new enterprise. This also applies if the enterprise was established before the new Immigration Act and Immigration Regulations entered into force on 1 January 2010.

2.4.3. Delimitation in relation to employment

Permits pursuant to the Immigration Regulations Section 6-18 are granted for engaging in self-employment. The decisive factor in this assessment will be the actual circumstances, not just the formal framework. The relationship between the self-employed person and a client/principal must be such that the client/principal does not have administrative or professional authority to instruct the employee.

The self-employed person shall run his/her business for his/her own account and risk. This means that he/she must, among other things, cover expenses for materials, premises, means of transport etc. In this connection, own risk means that the self-employed person is responsible for the result of an assignment, so that the clients/principals can complain about the result, cf. Official Norwegian Report NOU 1997:21.

2.5. Financial basis/subsistence

It is a condition for being granted a residence permit that the applicant is assured subsistence, see the Immigration Act Section 58. Pursuant to the Immigration Regulations Section 10-7 third paragraph, it must be assumed that the self-employed person is capable of supporting him/herself on the income from his/her business activities. It is also stated in the Immigration Regulations Section 6-18 first paragraph letter (b) that it must be substantiated that there is a financial basis for the business. Documentation requirements in this connection will vary depending on whether the business is a start-up or is already in operation, cf. section 3.2. A statement on the financial basis for the business shall be obtained from the relevant county authority and, if necessary, from a trade or professional organisation, cf. the Immigration Regulations Section 6-18 second paragraph. This is discussed in more detail in section 4.

2.6. Accommodation

Guaranteed accommodation is a requirement for a temporary residence permit, cf. the Immigration Act Section 58.

Accommodation is deemed to be ensured when the foreign national has the use of a house, flat, bedsit or similar that satisfies official requirements. If the accommodation is rented, a written lease must be presented that is approved by the landlord, housing cooperative or other party with right of disposal of the accommodation, cf. the Immigration Regulations Section 10-12.

2.7. Exemption from the requirement to engage in self-employment

The foreign national shall only engage in self-employment. However, permission may be granted to work as an employee if special reasons so indicate, cf. the Immigration Regulations Section 6-18 third paragraph.

In this context, special reasons mean that the self-employed person may have to enter into short-term employment relationships in order to be able to run his/her own business. This applies, for example, to doctors who have their own practice but are also obliged to work out-of-hours emergency care shifts as employees of the municipality. This can also apply to artists who certain big cultural institutions will not give assignments as self-employed persons, but only as employees.

The applicant will have to explain why it is necessary to enter into an employment relationship. A desire on the self-employed person's part to supplement his/her business income with pay from employment or a more general wish to take on different types of work are not deemed to constitute special reasons.

3. Application procedure, documentation, power of decision

3.1. Place of application

A first-time residence permit shall be granted prior to entry into Norway, cf. the Immigration Act section 56 first paragraph. However, applicants who have qualifications as skilled workers can submit an application from Norway, cf. the Immigration Regulations section 10-1 first paragraph letter (a). It is a condition that the applicant has legal residence and that he/she is not staying in Norway in connection with an asylum application or pending departure after receiving a rejection of his/her asylum application, cf. the third paragraph of the provision.

3.2. Required documents

As a rule, applications for residence permits shall be submitted online via Application Portal Norway. In exceptional cases, the UDI's own form can be used: Application for a permit for residence or work (external link to PDF). The form is available on the UDI’s website (external link), from the police and at foreign service missions.

What documentation must be submitted in addition to the application form is described in the appendix to this guideline.

The originals of documents must be presented together with a translation into Norwegian or English.

If the case documents are not submitted electronically, it is normally sufficient that a copy of the documents is sent to the UDI. In such case, it is a condition that the original document has been presented to and the copy confirmed by the foreign service mission or the police.

3.3. Power of decision

3.3.1. Permits during application processing

Permits may be granted on request while the application is being processed, cf. the Immigration Act Section 57. Such permits are granted by the police, cf. the Immigration Act Section 65 second paragraph, cf. the Immigration Regulations Section 13-1 first paragraph letter (h). For more information about the provision, see UDI 2010-147 (only available in Norwegian).

3.3.2. Temporary residence permit

It is the UDI that grants first-time residence permits for self-employed persons, cf. the Immigration Act Section 65 first paragraph.

4. Application processing

4.1. Cases to be submitted to the county authority

As a rule, all applications for first-time residence permits for self-employed persons shall be submitted to the county authority, since it is a condition for a permit pursuant to the Immigration Regulations Section 6-18 that a statement has been obtained from the county authority, cf. the second paragraph of the provision.

In some cases, a general statement from the county authority will suffice, however, cf. the circular A-2009-063 (only available in Norwegian). This applies if a county authority states that, for a given period, it is not desirable that new enterprises be established in a specific industry. In such case, it is not necessary to send relevant cases to this county authority for a statement. It is emphasised that relevant cases must be submitted for a statement if a county authority states that, for a given period, the establishment of new enterprises in a specific industry is desirable. The reason for this is that an individual assessment of the financial basis is required.

4.2. Preparation of cases for submission

The following documents must be submitted to the county authority in the county where the business enterprise is to be established or taken over:

• specification of the location of the business premises and the name of the enterprise
• an accurate description of the nature of the enterprise, including the applicant's assessment of the market and sales potential of the product/service and the applicant's role in the enterprise
• financing and budget plans or accounts/the applicant's tax return
• documentation of education and any work experience

It is specified that the application form should not accompany the submitted documents, because it includes information that is not relevant to the county authority's assessment.

A note requesting a statement pursuant to the Immigration Act Section 6-18 second paragraph must also be enclosed. It must state that the Directorate of Immigration wants an assessment of the following:

• whether there is a market for the planned business, depending on the nature of the enterprise
• whether there are prospects of profitable operation. In this connection, reference is made to the Immigration Regulations Section 10-7 third paragraph, pursuant to which it is a precondition that the means of subsistence will primarily be assured through the business activity. If relevant, the county authority is asked to comment on whether it is likely that it will become profitable later than in its first year of operation.
• whether the planned enterprise is assumed to be a long-term business or be in operation for at least three years.

The county authorities must be informed that, if they do not possess the necessary expertise, they can contact a relevant trade or professional organisation.

Other than that, the county authority can refer to concrete facts relating to the case if this is deemed necessary. A deadline must be stipulated for when feedback is desired, and the address to which it is to be sent must be stated. It should also be stated that it is not necessary to return the other case documents to the Directorate of Immigration.

4.3. Submission

The case documents that accompany the letter to the county authority, cf. section 4.2., are sent as copies or as print-outs from the computer system for immigration and refugee cases (DUF). They are sent by post to the address provided by the county authority.

4.4. The county authority's statement as documentation in the further case processing

The county authority's function is to give an advisory statement, not consent. This means that the case officer will have to make an independent assessment of whether all the conditions for granting a permit are met, including the condition concerning the financial basis for the business. If the county authority's statement indicates that the enterprise will become profitable at a later date than during its first year of operation, it must be considered whether a permit can nevertheless be granted. Sufficient documentation of assured subsistence is a precondition in such case, cf. the Immigration Regulations Section 10-7. If a permit is granted on this basis, that must be stated in the comments accompanying the case.

5. The content and duration of the permit

5.1. Content

The permit is tied to the specific enterprise that the applicant is to run, cf. the Immigration Regulations Section 6-18 third paragraph. The enterprise's name and organisation number, if one has been assigned, must be stated in the decision. If the applicant is also permitted to take employment, cf. section 2.7., this must be stated in the decision.

The permit forms the basis for family immigration, cf. Sections 40–42 of the Immigration Act.

The permit forms the basis for a permanent residence permit, cf. the Immigration Regulations section 6-18 third paragraph.

The residence permit can be renewed, cf. the Immigration Act Section 61.

5.2. Duration

The permit is granted for a period of one year, cf. the Immigration Regulations section 10-16 fourth paragraph.

6. Renewal

An application for a residence permit pursuant to Section 6-18 of the Immigration Regulations shall be renewed provided that the requirements for a first-time permit are still met, unless circumstances exist that would constitute grounds for refusing the foreign national entry to or residence in the realm pursuant to other provisions of the Immigration Act, cf. the Immigration Act Section 61 first paragraph.

It is a condition for renewal of the permit that it will be tied to the same business as the preceding permit, cf. the Immigration Regulations Section 10-21 fifth paragraph.

The renewed permit shall also be tied to a specific enterprise. Renewal is granted for a period of one year, cf. the Immigration Regulations section 10-24 first paragraph.

If the application for renewal is submitted no later than one month before the permit expires, the applicant is entitled to continued residence on the same conditions until the application has been finally decided, cf. Section 61 sixth paragraph of the Immigration Act.

6.1. Required documents

Applications for renewal are submitted on the prescribed form to the police in the district where the applicant has his/her permanent place of residence, cf. Section 10-27 of the Immigration Regulations.

Accounts confirmed by an auditor must also be submitted, or, alternatively, if the applicant is not obliged to submit accounts, the applicant's tax return. A budget must also be submitted. See the appendix to this guideline for more information.

If the enterprise has run at a loss or the applicant's income from it is so low that means of subsistence have not primarily been assured through the business, the applicant must explain the reason for this and how he/she plans to ensure that the enterprise will become profitable and to meet the subsistence requirement in the Immigration Regulations Section 10-7 third paragraph. In such case, a concrete assessment will be made of whether there is a financial basis for the business and whether the condition can be deemed to be met.

6.2. Power of decision

It is the UDI that grants renewals of residence permits for self-employed persons, cf. the Immigration Act Section 65 first paragraph.