ROYAL NORWEGIAN MINISTRY OF LABOUR AND SOCIAL AFFAIRS

Transcription

1 ROYAL NORWEGIAN MINISTRY OF LABOUR AND SOCIAL AFFAIRS EFTA Surveillance Authority Rue Belliard 35 B-1040 Brussels Your ref Our ref Date 14/ Reply - Letter of formal notice for failure by Norway to comply with its obligations under Articles 28,31 and 36 EEA and Directive 2004/38/EC 1. Introduction The Norwegian Ministry of Labour and Social Affairs refers to the letter of 18 December 2014 from The EFT A Surveillance Authority ( the Authority ), and the extension of the deadline for a reply granted in your letter of 27 January The Norwegian Government s observations and comments on the content in the Authority s letter are provided below. The Norwegian Directorate of Immigration (UDI) has presented its administrative practice and addresses the concerns raised by the Authority. Bellow, we provide the required clarifications and information regarding our administrative practice. The Authority specially points out that Norway does not ensure fully the derived rights to residence of third-country national (TCN) family members of returning Norwegian nationals. The Authority expresses its concerns that Norway hinders TCN family members of returning Norwegian nationals from enjoying their derived rights to residence in several instances: Where the Norwegian national concerned has not been economically active in the host EEA State. Where there is no genuine connection between the return of the Norwegian national and the entry of the TCN family member. Where the length of the stay of the TCN family member in the host EEA State is not considered sufficient. Where it is established that the TCN has previously been refused residence or asylum Postal address PO Box 8019 Dep NO-0030 Oslo postmottak@asd.dep.no Office address Møllergata37 Telephone* Department for Labour Our officer Market Affairs Kalyani Rushanth Vat no

2 in Norway or, more generally, the move of the Norwegian national may have been motivated by a desire to make use, when returning to Norway, of his free movement rights under EEA law. On 21 January the Ministry received information from the Authority regarding the identity of the complainants in the family reunification cases processed within the Authority who have agreed with disclosure. However, the Norwegian authorities still have not received detailed information about several cases that the Authority refers to in its previous letter of 18 December 2014, besides a mere notification that the Authority has received a complaint. The Ministry will provide a general response to the concerns raised by the Authority. Our account regarding cases and administrative practice will be partly based on the cases where the Authority has provided information about the complainant s identity. The main reasons for refusal (complaints to ESA) were uncertainty about the person's identity, marriage of convenience and the move to another EEA State has not been genuine and effective. As far as we can see not the reasons the Authority put forward in the letter of 18 December In the following we will address the concerns raised by the Authority as summarized in its conclusion. 2. Facilitating entry and residence for persons falling under the scope of Article 3(2)(a) The Authority s takes the view that Norway does not facilitate entry and residence for the other family members listed in limits Article 3 (2) (a) of Directive 2004/38/EC. Due to the implementation of Directive 2004/3 8/EC, the Article 3 (2)(a) was transposed in the Norwegian Immigration Act section 110 fifth paragraph and section 19-7 of the Immigration Regulations. The list of persons defined in section 19-7 was considered to cover the definition of other family member in the Directive. On this background the Norwegian Government acknowledges that the definition of other family members can be understood as too restrictive compared to the Article 3(2) (a). We are currently considering changes to the Immigration Regulations with the aim of facilitating entry and residence to the other family members other than those defined in section However, the Norwegian Government would like to emphasize that UDI has not received applications from persons falling under Article 3(2)(a) that are not covered by the corresponding provision under section 19-7 first paragraph (d) of the Immigration Regulations. Therefore, UDI has not rejected applications from any other family members who are dependants nor are members of the household of the Union citizen. 3. Providing for a possibility to prove the durability of a relationship as cohabitants falling under Article 3(2)(b) According to the Authority, the durability of a relationship in the meaning of Article 3(2) (b) cannot be determined solely on the basis of a fixed criterion. Page 2

3 In the government s opinion, it is line with the Commissions Guidelines to maintain - as a main rule - a provision that refers to two years as a minimum amount of time for the relationship to be considered durable1. However, we are also planning amendments to the Immigration Regulations section 19-6 to include any other special circumstances that will be taken into account when assessing the durability of the relationship between the cohabitants. 4. Economic activity The Immigration Act section 110 second paragraph requires that the Norwegian national has exercised his or her right of free movement in another EEA State before returning to Norway. The provision does not make a distinction between Norwegian nationals who have been economically active in the other EEA State and those who have not been economically active. According to the circular AI , the Norwegian national must have exercised his or her right of free movement in another EEA State before returning to Norway. In that respect, it is emphasized that the Norwegian national must have established a genuine and effective residence in another EEA State. In addition, a genuine family relationship must have been established before the Norwegian national returns to Norway. References are made to the Ministry's correspondence with the Authority earlier in this matter. The circular states that it should be put substantial weight to whether a Norwegian National has been economically active in the host EEA state when considering whether the stay in the other EEA country has been genuine and effective. There is however no requirement according to the Norwegian legislation in force that a Norwegian national must have been economically active in another EEA State for their family members to make use of free movement rights under EEA law. Economic activity is only one among other factors that UDI assesses when a TCN family member of a returning Norwegian national lodges an application for family immigration under EEA law. We have described these assessments further under section 5 and 6 in this letter. UDI has granted resident cards to several family members of returning Norwegian nationals who have exercised their right of free movement, but have not been economically active in the host EEA State, as long as their move has been genuine and effective. The Norwegian Government will therefore amend the circular with the purpose of making the requirements clear and certain for Norwegian nationals who have not been economically active in the host State before returning to Norway, so that the there is a more clear distinction between the rights of the economically active, and the non economically active. 1 COM COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on guidance for better transposition and application o f Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory o f the Member States Page 3

4 When it comes to documentation of genuine and effective move to an EEA State, the circular AI presents applicants with examples of documentation that they may provide. This list is not exhaustive, and the Norwegian citizen may refer to any other documentation that may serve to demonstrate that the Norwegian national exercised his or her right to free movement in another EEA country2 3. In our opinion, an exhaustive list will be more restrictive. 5. Genuine connection To fall within the scope of Article 2(2) of the Directive, there must be a genuine family relationship between the Norwegian national and the family member. There is a requirement that the relationship between the family member and the Norwegian national who wishes to make use of free movement rights under EEA law has been established before or during the time the Norwegian national exercised his or her free movement rights. The Authority submits that the criteria of a sufficiently genuine residence, added by the a Court of Justice in O, is fulfilled where a Union citizen during the residence in the host Member State family life is created or strengthened. However, the Court in O does not refer to the circumstances that Member States can take into account when assessing if the residence has been sufficiently genuine. On the contrary the Court remarks that it is up to the Member states to determine whether family life in the host state is to be regarded as sufficiently genuine (O, para 57). When assessing if the residence has been sufficiently genuine, hereunder whether the family life has been created or strengthen, the Norwegian government takes into account - as one relevant factor - whether the family members application has been submitted in a natural continuation of the return of the Norwegian national. The Norwegian government is not aware of any judgments from the Court of Justice that states that this factor cannot be taken into consideration. UDI has received a few applications from Norwegian nationals who exercised their free movement rights in another EEA State a long time ago, for example as a student 7 years ago, and recently such as last year, they met their spouse who now apply for a residence card under EEA law. In these cases UDI have recommended the applicants to apply trough national family immigration legislation, as they were not considered to fall within the scope of Directive 2004/38/EC. The applicant is obliged to lodge an application within three months after entry when the planned period of residence is for more than three months. It is stated in article 9 in Directive 2004/38/EC that Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for 2 This practice is in accordance with practice in Denmark, see to dk/familyreunification/familv reunification under eulaw/family reunification danish nationals under eu-law.htm 3 Case C-456/12 O Page 4

5 more than three months. The deadline for submitting the residence card application may not be less than three months from the date of arrival. Norwegian authorities believe that the obligation to lodge an application three months after entry, when the planned period of residence is for more than three months, is in compliance with Directive 2004/3 8/EC and EEA legislation. However, we acknowledge that the wording of the circular might be misleading to a certain extent. We will therefore propose amendments to the circular in order to ensure that the content is in compliance with the UDI's practice. 6. Length of the stay/requirement of a residence card When a TCN family member of a returning Norwegian national lodge an application for family immigration under EEA law, the Norwegian authorities assess if the Norwegian national has exercised his or her free movement rights. The Norwegian authorities will assess and decide if the stay in the other EEA country has been genuine and effective. In some of the cases where a Norwegian national claimed to be resident in Sweden together with his TCN family member, it was established that the Norwegian national was in fact living in Norway. In these cases we encountered that the Norwegian national concerned had his/her residence with his/her children in Norway, received all mail to a Norwegian address, received benefits from the Norwegian authorities, and also used the health services in Norway. It is possible to sustain a connection to their homeland while exercising free movement rights under EEA law. However, in the cases at issue we considered that the Norwegian national has not exercised free movement rights in another Member State. Whether the stay in the other EEA country has been genuine and effective must be assessed individually in each case. The assessment of whether the Norwegian national residence/stay is genuine and effective will have to be based on all specific circumstances of the case. It is not a requirement that the TCN family member in the host member state has obtained a residence card pursuant to EEA law as a family member of a Norwegian national, to enjoy derived rights to residence under Directive 2004/3 8/EC when the Norwegian national returns to Norway. On the basis of the above, the Norwegian Government does not consider our practice as a breach of the Directive or relevant case law. 7. Abuse Article 35 states that Member States can take effective and necessary measures to fight against abuse and fraud in areas falling within the material scope of EEA law on free movement of persons by refusing, terminating or withdrawing any right conferred by the Directive in the case of abuse of rights or fraud, such as marriages of convenience. Page 5

6 Norwegian nationals and their family members will be within the scope of Directive /EC if they have had a genuine and effective establishment in another Member State and they have met the conditions as stated in the Directive. Norwegian nationals who have met the conditions and exercised free movement rights in another Member State will fall within the scope of the Directive on return to Norway, regardless what motive or intention triggered their migration. Norwegian authorities has in the cases where the conditions were met, granted the Norwegian national s TCN family member a residence card upon return to Norway. The wording of circular AI indicates that the motivation for staying in another EEA country is of importance, and if the applicant and the Norwegian Citizen moves to another EEA state after an application for a residence permit according to the national regulations have been rejected, this may be held against the applicant. The Norwegian authorities do however in practice not assess the intention of the applicant. We still consider that the history of the applicant in some cases may be relevant for the assessment of the case. UDI examines the documentation that the applicant provides and assesses each case individually. It is also stated that UDI may examine on what grounds prior applications for permits in Norway have been rejected, and that such considerations may be included in the assessment on whether to issue a residence card. This assessment is made on case-by-case basis. In some cases the Norwegian authorities have received information regarding the legitimacy of the marriage, and based on that information UDI has requested an interview with persons concerned in order to examine and establish whether the marriage was of convenience or deception, as further elaborated in COM(2014) 604, Communication from the Commission to the European Parliament and the Council. UDI has in particular seen it necessary to further examine some of the applications from TCN family members that prior to their family immigration application have made a request for asylum in Norway, and at the time they lodged that application they have stated that they are married. When they later lodged an application for family immigration with a new person and then stated that they have not had any other spouses, the Norwegian authorities believe that it is in accordance with EEA law to further examine the applicant s civil status, as polygamy is not permitted in Norwegian legislation. In cases where UDI has refused to issue a residence card to a TCN family member, this is because the applicant is not considered to meet the conditions for residence under Directive 2004/38/EC. In the cases where UDI has refused to issue a residence document, the refusal grounds are mainly the following: UDI considers that the marriage is a marriage of convenience where the TCN s sole intent is to obtain legal residency in Norway, the applicant submitted false documents or has stated different identities, UDI has not received sufficient documentation or any documentation which will allow the authorities to verify that the applicant s claimed identity is more likely than other given identities. Page 6

7 We would like to specify that of the complaints received by the Authority, and where the complainants has agreed to disclosure, the majority of the cases were rejected residence in Norway based on uncertainty about that person s identity. In this regard, we do not consider our practice to be contradicting to our obligations under the EEA law. The Government will however propose amendments in order to clarify the wording in the circular in accordance with UDI's practice. 8. Previous income Family members of Norwegian nationals who have exercised free moments rights are able to choose whether they want a residence permit in accordance with national legislation, or whether they want the right to reside in Norway under EEA regulations. There are no requirements of previous income under EEA regulations. If a Norwegian national has not exercised any free movement rights, he or she will not be within the scope of directive 2004/3 8/EC. National legislation applies to family members of Norwegian nationals, not to EEA nationals or Norwegian nationals and their family members who are within the scope of Directive 2004/3 8/EC. 9. Requirement of having moved a residence to another EEA State The Authority draws attention to the fact that not only Norwegian nationals who had moved their residence to another EEA state benefit from the protection of EEA law, but also, in some cases, Norwegians nationals who have never moved their residence. The Norwegian Government has very limited experience with cross-border commuting and need some more time to consider the relevant legal sources. We would like to enter into a dialogue with the Authority to discuss this issue. 10. Criteria for TCN family members of EEA nationals An EEA national who has a valid identity card or passport has a right of residence for up to three months, provided that the person in question does not become an unreasonable burden for public welfare systems. This applies correspondingly to a family member who is not an EEA national, as long as the family member accompanies or is reunited with the EEA national and holds a valid passport. An EEA national who is a jobseeker, and accompanying family members, has a right to stay for up to six months, and in special cases also for more than six months. The circular AI provides information regarding family immigration for family members of EEA nationals. When an EEA national has only just arrived in Norway he or she may not be able to document a right to reside in Norway for more than three months. The EEA national will not be registered in Norway before he or she establishes a right to reside in Norway under Page 7

8 Directive 2004/38/EC Article 7. The circular is referring to the need to meet the conditions listed in Article 7 before the EEA national may register in Norway and before a residence card can be issued to the accompanying TCN family member. We kindly ask that these observations and comments are taken into account by the Authority in your further consideration on this case. Yours sincerely, Solveig Lie Deputy Director K.al yanf Rushanth Adviser Page 8