1. Practice reeardinq restriction of the rieht of free movement. MrNrsrRy oi lusrlcr AND PUBTIC security 0 7 AVR, 20ii

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1 ...-f,:' EFTA Surveiit' r ri Reo,;, ROYAL NORWEGIAN MrNrsrRy oi lusrlcr AND PUBTIC security 0 7 AVR, 20ii EF-IA Surveillance Authorithy Rue Belliard Brussels Belgium Your ref. 7656t Our ref. 15/ KBH Date Restrictions in Norrvay of the free movement rights of third counhy national family members of EEA nationals and Norwegian nationals who fall under the protection of EEA law on the grounds connected with identity establishment We refer to the EF-IA Surveillance Authority's ("the Authority') request of 3 February 2015, and the extension of the deadline for a reply granted in your of 25 February We also refer to the previous correspondance and dialogue about this issue, including the latest letter from the Authority dated 6 February 2015 (case no 76560). We consider the two requests to be strongly connected, but have chosen to respond to them in two separate letters. Our response to the questions raised in the letter of 3 February 2015, are provided below. We, The Ministry of Justice and Public Security, are also aware of the letter of formal notice dated 18 December 2014, sent by the Authority to The Norwegtan Ministry of [.abour and Social Affairs (Case No 73930, Doc. No ) and the reply to this letter from the latter dated 11 March Practice reeardinq restriction of the rieht of free movement When assessing whether an entry ban should be lifted or not, The Directorate of Immigration ("UDI") will consider whether the entry ban is still necessary in the interest of public policy or public security. The member states have a certain margin of appreciation regarding what they consider to pose a threat to their community.l In Norway, as in many other countries, it is a gen- 1 Case E-15/L2 Wahl paragraph6t. Postal address N- Norway Office address Mollergt Oslo Telephone W Org.no.: 972 4\7 831 Telefux +47 Reference Kristine Bjornsund Hosar +47

2 eral problem that many foreign nationals provide false information upon arrival regarding their identity. The problem affects many aspects of society, among them crime prevention and community safety. Compared to several other European countries Norway is a country with a very stabil economy, even during the time of the global flnancial crisis. Norway is further known for its extensive welfare system. However, the very basis of our welfare system is trust. This makes it vulnerable for abuse. The possibility to control the identity of the individuals residing in Norway is therefore of great importance. Norway has also experienced an increase of third country nationals ('TCN') who take residence in Norway through the Directive 2004/38,/EC ("the Directive") as EEA nationals based on both false passports or ID-cards from other European countries, genuine passports or ID-cards that have been issued on the basis of false documents, or by using other persons ID-documents. False identities are also used for different purposes in most types of crime and give organized crime a number of opportunities. This makes false identity a direct threat to public security in Norway. We therefore hold the view that it is of profound interest to the Norwegian authorities to know which people whom atany time is residing in Norway, including their nationality and correct identity. It is on this background thatwe assess if foreign nationals who wish to enter Norway without a clarified identity may pose a serious threat to public policy and public security or not. It is also on this background that it in certain cases is of importance to upheld the exclusion from the risht to enter Norway. However, we acknowledge that it could be made more clear in the decisions from the UDI why unclear identity is considered to pose a serious threat to public policy and public security, and why they in the concrete case have reached a conclusion that the individual concerned represents a genuine, present and sufficienfly serious threat affecting one of the fundemental interests of Norwegian society. The UDI will therefore adjust their decisions accordingly so that the concrete assessment made in each case is expressed more clearly for the foreign national. 2. Practice reqardinq identity issues for third counky nationals An identity of a foreign national who has presented false information to the national immigration authorities could be cleared for the purpose of lifting an entry ban by submitting a valid passport. This is also a requirement for the right of entry according to Article 5 in the Directive. We have in Norway several examples from cases where an identity has been cleared, even though the foreign national previous had presented the authorities false information. For example, a Belarusian woman was expelled from Norway with a permanent entry ban for using a false polish passport when applyrng for a work permit. She later married a Lithuaniancitizenworking in Norway, and applied for both a residence card and to have the enhry ban lifted. In her application she submitted her Belarusian pass- 2/5

3 port, which was deemed to be valid. The UDI therefore considered her identity to be cleared and lifted the entry ban and issued a residence card. However, if the foreign national origins from a country whose documents have what we consider to be "low credibility", a passport may not be adequate for clearing an identity if he or she previous has provided false information. In some of these cases additional supporting documents such as birth certfficates, proof of nationality, national ID card or other specific circumstances, can be considered a sufecient supplement. Another example is an Ethiopian citizen who applied for asylum in Norway twice, using different identities. He claimed that the latter of them was coffect. Due to this he was expelled according to the national immigration law with a perrnanent entry ban. Years later he applied to have the entry ban lifted because of his marriage to a returning Norwegian national. In addition to his Ethiopian passport issued in the identity he stated was cotrect, we had information that years before his first asylum application, he had been granted a visa by the Norwegian Embassy in Addis Abeba under the same identity.the UDI therefore considered his identity to be cleared and lifted the entry ban. If such circumstances or additional supporting documents do not exist, or if they can not be considered a sufficient supplement, the UDI can, if possible, ask a Norwegian Embassy to conduct a verification. In one of the cases described in the letter of 3 February 2015, (Case No 75774) the UDI first rejected the application from atcn family member of a returning Norwegian national for the lifting of an entry ban. The foreign national was expelled because the Norwegian Embassy in his home country concluded thatvarious documents submitted in connection with his asylum case vrere false. By mistake, the UDI tought that this also included the information regarding his identity. When the UDI were made aware that this was not the case, the entry ban was lifted. TWo of the other cases described in the letter (Case No and Case No 75183) concerns foreign nationals who both were expelled because they had given multiple identities to the Norwegian immigration authorities. Illhen applylng for a lffing of the entry ban as a TCN famrly member of a returning Norwegian national, they submitted new passports. The UDI rejected the applications. In these specific cases we had no information regarding how the passports were issued, what kind of supporting documents had been used etc. Hence, the foreign nationals previous history, the Norwegian immigration authorities did not see their identity as being cleared. Regarding documents issued from other countries, the Norwegian immigration authorities relate to the facts, including previous information we have in the case, and decide it accordingly. It is often unknown to us what kind of information other countries have concerning the identity of a foreign national when they assess whether the foreign nationals identity is clarffied or not. Therefore, we cannot automatically put these countries assessments to use. 3/s

4 In many cases there will be no reason to question submitted documents on the basis that we have no previous knowledge concerning doubt about the foreign national's identity. This also means that sometimes the Norwegian immigration authorities can consider a foreign national's identity as clearffied, even when other authorities would not, because they possess more information about the person than us. 3. The Norwesian application of Article 32 (1) and liftine of entry bans The Authority's Internal MarketAffairs Directorate ("the Directorate') have raised the question of why Norway has chosen to applyarticle 32 ofthe Directive to assess the lifting of entry bans adopted on the basis of national rules and procedures. When implementing the Directive into national law, we noticed thatarticle 32 (1) gave a person excluded on grounds of public policy or public security the possibility to submit an application for lifting of the exclusion order after a reasonable period, and in any event after three years from the enforcement of the final exclusion order. Since we already had a similar provision regarding lifting of an entry ban issued under our existing national law, cf. Immigration Act section 71, we found it best to have a equivalent system regarding the handling of all such applications, even though they were to be assessed under two different set of regulations2. The requirement towards the applicant to put forward arguments to establish that there has been a material change in the circumstances which jusffied their initial expulsion, must not be understood to strictly. If the foreign national is of the opinion that he or she now falls within the scope of the Directive, it will sometimes be st'fficient for a lifting of the entry ban to inform the immigration authorities about this, provided that all the other conditions under the Directive are fulfilled. We hold the view that our implementation and administrative practice satisfy the rights ensured by the Directive, since the case of the foreign national concerned will be assessed due to the rights provided for by the Directive, as long as he or she falls within the scope of the Directive. 4. The implementation and practice of Article 5(4) Article 5(a) of the Directive provides that where an EEA national or a TCN famrly member does not have the necessary travel documents or, if required, the necessary visas, the EEA State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence. 2 Cf. the legal history in Ot.prp. w.72 ( ) point 7.l2.5,page 44. 4/5

5 If an applicant applies for a residence card the UDI will assess the case and request further information if the provided documentation is not adequate. In one of the cases described in the Authorities letter of 3 February 2015, the UDI rejected to issue a residence card due to the reason that the applicant's wife had not exercised free movement rights according to the Directive. In the decision from the UDI it was listed three reasons explaining why the conditions were considered not to be met in this particular case. Firstly, the applicant's wife claimed that she had exercised free movement rights as a person with sufficient funds to support herself and her famrly members. The UDI concluded that it was not made probable that she had exercised free movement rights and that she had not documented that she possessed sufficient funds. Thus, the application for a residence card was rejected. In the decision the UDI also made reference to the fact that the applicant was not covered by a health insurance and that he did not have a valid passport since his passport had expired. Providing the applicant with all the reasons why his application was rejected clarifies the conditions he has to meet if he wishes to appeal the decision or apply again. If all other conditions were met, the applicant would have been given an opportunity by the authorities to present a valid passport or present an explanation why he was not able to provide a valid passport. Nevertheless, we acknowledge thatarticle 5( ) mrght not be clearly implemented in the Norwegian Immigration Act or Regulation, even though it is applied in practice by the immigration authorities. When implementing the Directive it was in the Immigration Act about rejection, cf. section 121 last paragraph, given a legal atthortzation to the King (the King means here the Government) to make further provisions in the Immigration Regulation.s This has not yet been done regarding the content of Article 5 (4). The Ministry will therefore, based on the remarks from the Authority, assess the posibility of an amendment in the Immigration Regulation for the purpose of a more clear legal implementation of Article 5(4).,M Yours sincerely, deputy director general Kt; f fd ll- Kri stine B1 o -., n fr -o. u, senior adviser e Cf. the legal history in Ot.prp. nr.72 ( ) point , page 46. 5/s