2 Correspondence 4. On25 April 2014, a question regarding restrictions of the rights of entry of TCN family

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1 Brussels, l4 October 2015 Case No: Document No: Decision No: S/COL Ministry of Justice and Public Security Postboks 8005 Dep, 0030 Oslo Norway Dear Sir or Madam. Subject: Letter of formal notice to Norway concerning restrictions of the rights of entry of third country national family members of EEA nationals and Norwegian nationals who faii under the protection of EEA law I Introduction 1. The present letter of formal notice concerns the relevant rules in Norway restricting the rights of entry of third country national ("TCN") family members of EEA nationals and Norwegian nationals who fall under the protection of EEA law, i. e. who exercise their free movement rights in another EEA State or who return to Norway after having exercised their free movement rights under EEA law ("returning Norwegian nationals"). 2. ln particular, it appears that Norway is restricting the rights of entry of TCN family members of EEA nationals and Norwegian nationals who fall under the protection of EEA law on other grounds than those allowed by the Free Movement and Residence Directive 2004 I 38 lecr ("Directiv e 2004 I 38 lec"). 3. The EFTA Surveillance Authority ("the Authority'') has identified the problems discussed below in the context of scrutiny of the relevant rules and practices in Norway regarding the derived rights of family members under EEA law in general undertaken after receiving a high number of complaints against Norway concerning the derived rights of TCN family members of returning Norwegian nationals2. 2 Correspondence 4. On25 April 2014, a question regarding restrictions of the rights of entry of TCN family members of EEA nationals and Norwegian nationals who fall under the protection of EEA law was included in the additional request for information to Norway in Case No (question No 4, Doc. No ). Norway replied to the request for information by letter of 2 June 2014 (ref. 13/6340-KBH, Doc. No ). I Act referred to at point 3 of Annex VIII to the EEA Agreement (Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their.family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/22L/EEC, 6S/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEQ, as adapted to the EEA Agreement by Protocol I thereto. 2 On 8 July 2015, a reasoned opinion was delivered regarding those complaints (Case No 73930, incl. other cases, Doc. No ). Rue Belliard 35, B-1040 Brussels, tel: (+32)(0)2 286 l8 11, fax (+32X0)2 286 l8 00,

2 Page2 5. The issue was discussed at the package meeting of l6 and 17 October 2014 innorway3. 6. On 12 December 2014, a separate own-initiative Case No was opened by the Authority to assess the information received from the Norwegian Government. 7. On 6 February 2015, the Authority's Internal Market Affairs Directorate ("the Directorate") sent a pre-31 letter to the Norwegian Government (Doc ) expressing its concerns with the relevant rules in Norway. 8. The Norwegian Govemment replied to the pre-31 letter by letter of 7 April 2015 (ref. l5ll261-y\bh, Doc. No ). 3 Relevant national law 9. In its letter of 2 June 2014 and during the package meeting of 16 and l7 October 2014, the Norwegian Government explained the relevant rules applied by Norway in the event a TCN for whom an expulsion order had been issued according to Chapter 8 of the Norwegian Immigration Acta became a family member of an EEA naiional oi a Norwegian national who falls under the protection of EEA law within the period of duration of expulsion. 10. According to chapter 8 of the Immigration Act, headed o'expulsion,,, a TCN may be expelled from Norway for extensive reasons, such as non-compliance with the Norwegian immigration rules, including the non-compliance with the obligation to leave Norway; cases where less than five years before the TCN has served or received in Norway or abroad a penalty for an offence punishable under Norwegian law by imprisonment; where an authority in a Schengen countryhas made a final decision on rejection or expulsion because of the TCN's failure to comply with the country's provisions on entry or residence erc. I 1. Under Article 71 of the Immigration Act, expulsion shall prevent subsequent entry into Norway. Prohibition of entry may be permanent or temporary, but may not be for a period ofless than one year. 12. According to the Norwegian Government, the prohibition of entrymaybe annulled upon application if new circumstances indicate that this should be done. Any TCN can apply to have a prohibition of entry lifted under Section 7 I second paragraph and Section 1 24 second paragraph of the Immigration Act. The TCN must however, as a general rule, apply for such a lifting at a Norwegian Foreign Service mission (see Section 14-4 of the-immigration Regulations5). 13. When handling an application to have an entryban lifted, the Directorate of Immigration ("UDI") will assess if the TCN falls under the protection of the EEA Agreement. If he does, UDI shall reach a decision within six months of the submission oflhe application (see Article 32(1) of Directive /EC). 14. In assessing whether the entry ban should be lifted, it is considered whether the entry ban is still necessary in the interest of public policy or public security. Previous criminal convictions will be one of several factors in the overall assessment of the application, along with the person's ties to family members residing in Norway. 15. The Norwegian Government stresses that during the handling process of an case, i. e. before the decision of expulsion is final, the national authorities consideration whether the TCN has such sufficient ties to an EEA national as expulsion take into a family see th9 ] follow-up letter to the package meeting (Doc. No in case No 75236). a Act of l5 May 2008 on the entry of foreign nationals into the Kingdom ofnorway and their stay in the realm (Immigration Act). s Regulations of 15 October 2009 on the entry of foreign nationals into the Kingdom ofnorway and their stay in the realm (Immigration Regulations).

3 member, so that he should enjoy enhanced protection under EEA law. For example, if the TCN in his appeal (i. e. before the decision is final), informs the Immigration Appeals Board ("LINE") that after the decision of expulsion from UDI he has gotten married to an EEA national residing in Norway, LINE will retum the case to UDI for a new assessment based on this new information. 16. As explained by the Norwegian Government, if a TCN family member of an EEA national or a retuming Norwegian national for whom an expulsion order has been issued applies for a residence card in Norway, the lifting of an expulsion order is considered together with the application for a residence card. If a TCN applies for a residence card in another EEA (Schengen) State, the competent authority of the host EEA State contacts the Norwegian authority for information regarding the TCN. If the host EEA State decides to issue a residence card, the entry ban should be removed from the Schengen Information System ("the SIS"). However, the expulsion order stays valid for Norway, with a consequence that the TCN possessing a residence card of a family member of an EEA national cannot travel freely to Norway. In order for him to travel to Norway he must apply for lifting of the entry ban in Norway. The examination of such an application may last for up to six months. If such a TCN is a family member of a Norwegian national exercising his free movement rights in another EEA State, the assessment of lifting of an entry ban is the same as in the case of issuing a residence card for a family member of a returning Norwegian national, i. e. itmust be assessed whether the movement of a Norwegian national to another EEA State is/was sufficiently genuine. 4 Relevant EEA law ll. In accordance with recital 5 in the preamble to Directiv e F.C, " [thej right of all Union citizens to move and reside jreely within the territory of the Member States should, if it is to be exercised under objective conditions offreedom and dignity, be also granted to their family members, iruespective of nationality". 18. Article 1 of Directive2004l38/EC, headed"subject", provides: "This Directive lays down: (a) the conditions governing the exercise of the right offree movement and residence within the territory of the Member States by Union citizens and their.family members 1...)". 19. The beneficiaries of Directive2}}4l38/EC are defined in Article 3 as follows: * l. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their.family members as defined in point 2 of Article 2 who accompany or join them. 1...)" 20. Article 5 of Directive 2004/38/EC, headed*right of entry", states: " l. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grantfomily members who are not nationals of a Member State leave to enter their territory with a valid passport. 2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article I0 shall exempt such family members from the visa requirement.

4 Page 4 Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued.free o.f charge as soon as possible and on the basis of'an accelerated 21. As regards the right of residence, Articles 6 and 7(l) and (2) of Directive 20O4l38lEC provide: "Article 6 Right of residencefor up to three months l. Union citizens shall have the right of residence on the territory of another Member State.for a period of up to three months without any conditions or anyformalities other than the requirement to hold a valid identity card or passport. 2. The provisions of paragraph I shall also apply tofamily members in possession of avalid passport who are not nationals of a Member State, accompanying or joining the (Jnion citizen. Article 7 Right of residencefor more than three months 1. All Union citizens shall have the right of residence on the territory of another Member Statefor a period of longer than three months {they: (a) are u'orkers or self-employed persons in the host Member state; or (b) have sfficient resources for themselves and their.famity members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sicl*tess insurance cover in the host Member State: or (c) - are enrolled at a private or public establishment, accredited or.financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course o.f study, including vocational training; and - have comprehensive sicltness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sfficient resources for themselves and theirfamily members not to become a burden on the social assistance system of the host Member State during their period of residence; or (d) are.fomily members accompanying or joining a (Jnion citizen who satisfies the conditions referred to in points (a), (b) or (c). 2. The right of residence provided for in paragraph I shatl extend to family members who are not nationals of a Member State, accompanying or.ioining the (Jnion citizen in the host Member State, provided that such (Jnion citizen satisfies the contlitions refbrrecl to in paragraph 1(a), (b) or (c)." 22. So far as concerns issue of a residence card, Article l0 of Directive ZO}4/3glEC provides: " L The right of residence of family members of a (Inion citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called "Residence card oj'a.family member of a Union citizen" no later than six months from the date on which tiey submit the application. A certificate of application for the residence card shall be issued 23. Chapter VI of Directive F;C, headed "Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health-, provides in Articles 27,32 and 33:

5 Page 5 "Article 27 General principles l. Subject to the provisions of this Chapter, Member States may restrict the.freedom of movement and residence oj'union citizens and their /izmily members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to sen)e economic ends. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds.for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sfficiently serious threat affecting one of thefundamental interests o-f society. Justifications that are isolatedfrom the particulars of the case or that rely on considerations of general prevention shall not be accepted. <...> Article 32 l. Persons excluded on grounds of public policy or public security may submit an application./br lifting o/'the exclusion order after a reasonable period, depending on the circumstances, and in any event a/ter three years from enforcement of the Jinal exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been q material change in the circumstances which justified the decision ordering their exclusion. The Member Stqte concerned shall reach a decision on this application within six months of its submission. <...> Article Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27, 28 and 29. <...>" 24. Article 35 of Directive /EC, which is in Chapter VII headed "Final provisions", provides, in respect of the measures that the EEA States may adopt in the case of abuse of rights or fraud: "Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse o/'rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31." 5 The Authority's assessment 5.1 The possible limitations to the right of TCN family members of EEA nationals to enter and remain on the teruitory of an EEA State 25. Recognising the importance of ensuring the protection of the family life of nationals of the EEA States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by EEA law6, the legislature has considerably expanded, in the regulations and directives on freedom of movement for persons, the application of EEA law on entry into 6 Judgment in Metock, C , EU:C:2008:449, paragraph 56 and the case law cited therein and Case E-4lll Clauder [2011] EFTA Ct. Rep.216, paragraph 35.

6 Page 6 and residence in the territory of the EEA States to TCNs who are the family members of EEA nationalst. 26.The right of EEA State nationals and their family members to enter and remain on the territory of another EEA State is not, however, unconditional. Among the limits laid down or authorised by EEA law, Article 27 ofdirective}}}4l38/ec enables EEA States to restrict the freedom of movement and residence of EEA nationals and their family members, irrespective of nationality, on grounds of public policy, public security or public health. Therefore, EEA States may prohibit nationals of other EEA States or their TCN family members from entering their territory on grounds of public policy, public security or public health. In the same vein, EEA States may refuse to issue residence cards to such TCN family members, or even expel them after a residence card has been issued, on grounds of public policy or public security. 27. The legislature has nevertheless made reliance by the EEA States on such grounds subject to strict limits. Article 27(2) of Directive F,C states that measures taken on grounds of public policy or public security are to be based exclusively on the personal conduct of the individual concerned, which must represent a genuine, present and sufeciently serious threat affecting one of the fundamental interests of the society. Previous criminal convictions are not in thernselves to constitute grounds for the taking of such measures. The existence of a previous criminal conviction can, therefore, onlybe taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policys. 28. The Court of Justice of the European Union ("the Court of Justice") and the EFTA Court, for their part, have always emphasised that the public policy exception is a derogation from the fundamental principle of freedom of movernent for persons which must be interpreted strictly and that its scope cannot be determined unilaterally by the EEA Statese. 29. Consequently, according to settled case law, reliance by a national authority on the concept of public policy presupposes, in any event, the existenceo in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of societyl ln the case of a TCN who is the family member of an EEA national a strict interpretation of the concept of public policy also serves to protect the latter's right to respect for his family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 ('the ECHR")rl. 31. According to established case law of the EFTA Court, the provisions of the EEA Agreement are to be interpreted in the light of fundamental rights and the provisions of the ECHR and the judgments of the European Court of Human Rights are important sources for determining the scope of these rightsl2. 32.ln those circumstances, it is clear that the grounds for expulsion under Chapter 8 of the Immigration Act do not correspond to the concept of public policy within the meaning of Article 27 of Directive2}}4/38lBc. According to Chapter 8 of the Immigration Act an entry 7 Judgment in Metock, cited before, paragraph 57 andthe case law cited therein. 8 Judgment in Commission v Netherlands, C-50106, EU:C:2007:325, paragraph 41 and the case law cited therein and Case E-l5l12 Wahl [20131EFTA Ct. Rep. 534, paragraph 117 and the case law cited therein. e Judgment in Commission v Netherlands, cited before, p*ug.aph iz anathe case law cited therein and Case E-15/12 l{ahl, cited before, paragraph 83 and the case law cited therein. r0 Judgment in Commission v Netherlands, cited before, paragraph 43 and the case law cited therein. rr Judgment in Commission v Spain. C-503i03, EIJ:C:2006:7+, paragraph 47 andthe case law cited therein. 12 Case E-l2ll} ESA v lceland,lzolllefta Ct. Rep. 117, p*ugrup=fr OO and the case law cited therein.

7 PageT ban may be based on non-compliance with the Norwegian or other Schengen country's rules on entry or residence of TCNs or on a conviction of an offence punishable under Norwegian law by imprisonment. Unlike and in contravention of the rules laid down by Directive /EC, as interpreted by the Court of Justice and the EFTA Court, such circumstances appear under Norwegian law to justiff in themselves an entry ban irrespective of any specific assessment of the threat represented by the person concerned. 33. In its reply to the pre-31 letter the Norwegian Government admitted that the grounds for expulsion under Chapter 8 of the lmmigration Act did not correspond to the concept of public policy within the meaning of Article 27 of Directive}}}4l38/Ec. 5.2 The requirements of EEA law in the event a TCNfor whom an entry ban has been issued becomes afamily member of an EEA national 34. The Court of Justice has concluded that Directive C does not allow the EEA States to refuse entry into the Schengen Area and to refuse to issue a visa for the purpose of entry into that area to TCNs who are the family members of EEA nationals, on the sole ground that they were persons for whom alerts were entered in the SIS for the purposes of refusing them entry, without first verifuing whether the presence of those persons constituted a genuine, present and sufficiently serious threat to one of the fundamental interests of societyl The same applies with respect to TCNs who are the family members of EEA nationals for whom entry bans were issued by Norway according to Chapter 8 of the lmmigration Act. 36. Although EEA States may, where an EEA national travels within the EEA in order to exercise the rights which are conferred on him by the EEA Agreement and the measures adopted for its application, require an entry visa for his family mernber who is a TCN, the EEA States must nevertheless accord to the latter every facility for obtaining the necessary visa. 37. According to Article 5(2) of Directive E'C, possession of the valid residence card of a family member of an EEA national shall exempt such family members from the visa requirement. 38. Under Article 6 of Directive 2004/38/EC, EEA nationals and their TCN family members, accompanying or joining the EEA national, shall have the right of residence on the territory of another EEA State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. 39. If an EEA national satisfies the conditions inarticle 7(l)(a), O) or (c), their TCN family mernbers, accompanying or joining the EEA national, shall have the right of residence on the territory of another EEA State for more than three months. The right of residence of such a TCN is evidenced by the issuing of a"residence card of afamily member of an EEA nationaf'. 40. As mentioned before, these rights could be restricted only on grounds of public policy, public security or public health within the meaning of Directive2004l38lEC. 41. However, as explained by the Norwegian Government, in the event a TCN family member of an EEA national for whom a prohibition of entry was issued under Chapter 8 of the Immigration Act wishes to travel to Norway, he must apply for an annulment of the 13 Judgment in Commission v Spain, cited before, paragraph 59.

8 Page 8 prohibition under Section 71 second paragraph or Section 124 second paragraph of the Immigration Act. UDI shall reach a decision on such an application within six months. 42. The TCNs at issue who are banned by Norway from exercising their right of entry to Norway might be in three different situations: first, they might wish to enter Norway from a third country and, therefore, apply for entry into the Schengen Area or for a visa for the purpose of entry into that area; second, they might apply in Norway for a residence card of a family member of an EEA national; third, they might wish to travel to Norway from another EEA State where they have been issued a residence card of a family member of an EEA national. 43. All of the situations described above include TCN family members of Norwegran nationals who fall under the protection of EEA law. 44.In all those instances, as explained by the Norwegian Government, the TCNs are first required to apply for the lifting of the entry ban and the examination of the application might take up to six months. In the second situation, i. e. when a TCN family member of an EEA national or a returning Norwegian national applies for a residence card in Norway, the lifting of an expulsion order is considered together with the application for the residence card, which, according to Article l0 of Directive 2004/35/EC shall be issued no later than six months from the date of the submission of the application. When the reference person is a returning Norwegian national (in the second situation) or a Norwegian national exercising his free movement rights in another EEA State (in the third situation), the assessment of the lifting of an entry ban is the same as in the case of issuing a residence card for a family member of a returning Norwegian national, i. e. itmust be assessed whether the movement of the Norwegian national to another EEA State is/was sufficiently genuine. 45. However, as has been already noted, according to Article 5 of Directive /EC, the EEA States shall grant TCN family members of EEA nationals leave to enter their territory with a valid passport or, if they are required to have an entry visa, the EEA States must issue visas free of charge and on the basis of an accelerated procedure. 46. Moreover, the EEA States cannot refuse TCN familymembers of an EEA national who hold a valid residence card, issued under Article l0 of Directive F;C, the right, as provided for in Article 5(2) of the directive, to enter thefu territory without a visa where the competent national authorities have not carried out an individual examination of the particular case. The EEA States are therefore required to recognise such a residence card for the purposes of entry into their territory without a visa, unless doubt is cast on the authenticity of that card and the correctness of the data appearing on it by concrete evidence that relates to the individual case in question and justifies the concl6io, that there is an abuse of rights or fraudla. 47. In this regard - even though the Court of Justice has held that residence permits issued on the basis of EEA law, by nature, declare and do not create rightsls - the fact remains that the EEA States are, in principle, required to recognise a residence card issued under Article I 0 of Directive /EC, for the purposes of entry into their territory without a visar Moreover, as established by the Court of Justice, there is nothing at all in Article 5 of Directive /EC indicating that the right of entry of TCN family members of the EEA national is limited to EEA States other than the EEA State of origin of the EEA nationalrt. ra Judgment in McCarthy, C-202/l3,ElJ:C:2014:2450, paragraph Judgment n Dias, c-325/og. EU:c:2011:49g, paragruprr-+s, and judgment in o. and 8., c-456/12 EU:C:20 14: 1 35, paragraph Judgment in McCarthy, cited before, paragraph Judgment h McCarthy, cited before, p*agrupt +t.

9 Page 9 Accordingly, the same reasoning applies also to the TCN family members of Norwegian nationals who fall under the protection of EEA law. 49. Therefore, since the grounds for expulsion under Chapter 8 of the Immigration Act do not correspond to the concept of public policy within the meaning of Article 27 of Directive EC, a person concerned is banned from exercising his right of entry to Norway, i. e. an EEA State, for the period of the examination of the application under the grounds other than those provided for by Directive /EC. 50. The Norwegian Government however, does not agree with this conclusion and argues in the reply to the pre-31 letter that the administrative procedure practiced in Norway requiring TCNs for whom an entry ban was issued under Chapter 8 of the Immigration Act to apply for lifting of the entry ban before re-entering Norway cannot be seen as banning these persons from exercising their right of entry to Norway. 51. It refers in this respect to Article 35 of Directive2004l38/EC according to which EEA states may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this directive in the case of abuse of rights or fraud, such as marriages of convenience and holds the view that the procedure at issue is necessary to be able to make sure that abuse is not taking place. 52.The approach by the Norwegian Government means in practice that a particular Soup of persons (TCNs for whom an entry ban was issued under Chapter 8 of the [mmigration Act) is assumed to abusing their rights under Directive 2004/38lEC, unless they can prove otherwise. In other words, the requirement for TCNs for whom an entry ban was issued under Chapter 8 of the Immigration Act to apply for lifting of the entry ban before reentering Norway is founded on the existence of a general risk of abuse of rights or fraud. 53. However, as established by the Court of Justice, measures adopted by the national authorities, on the basis of Article 35 of Directive2004l38/EC, in order to refuse, terminate or withdraw a right conferred by that directive must be based on an individual examination of the particular casels. 54. The adoption of measures pursuing an objective of general prevention in respect of abuse of rights or fraud would mean that the mere fact of belonging to a particular group of persons would allow the EEA States to refuse to recognise a right, expressly conferred by Directive /EC on family members of an EEA national, who are not nationals of an EEA State, although they in fact fulfil the conditions laid down by that directivere. 55. Such measures, being automatic in nature, would allow EEA States to leave the provisions of Directive /EC unapplied and would disregard the very substance of the primary and individual right of EEA nationals to move and reside freely within the territory of the EEA States and of the derived rights enjoyed by those citizens' family members who are not nationals of an EEA State Application of Article 32(1) of Directive 2004/38/EC 56. To justiff the six months' term for the lifting of an entry ban the Norwegian Government relies on Article 32(l) of Directive2004/38lEC. Article 32(l) of Directive 2004/3S/EC does indeed provide for EEA States a six months' term to reach a decision on the application to lift an exclusion order. However, this Article concems only exclusion orders adopted in accordance with EEA law, i. e. those based on grounds of public policy or public security 18 Judgment in McCarthy, C-2021I3, cited before, paragraph 52. re Judgment in McCarthy, C , cited before, paragraph Judgment in McCarthy, C , cited before, paragraph 57.

10 Page l0 within the meaning of Directive 2004/38lEC.lt provides for the persons excluded on these grounds the right to submit an application for the lifting of the exclusion order after a reasonable period, and in any event afterthree years from enforcernent of the final exclusion order. 57. However, it cannot be used to justifo the term used for the lifting of the exclusion orders adopted for TCN family members of EEA nationals, based on other grounds than those provided for in Directive F'C. 58. For the sake of completeness and by way of analogy, in the event a TCN family member of an EEA national applies for a visa and an alert refusing entry is entered in the SIS by another Schengen country, the Court of Justice has referred to a12 hours' term provided for in Paragraph of the Sirene Manual within which a contracting party must give the response to a request for information made by the other contracting party''. 59. As the situation referred to by the Authority concerns the information possessed by the national authorities, even a shorter term than that in Paragraph of the Sirene Manual should be sufficient. 60. Nor could the argument of the Norwegian Government stand that a foreign national for whom an entry ban was issued under Chapter 8 of the lmmigration Act should be given the same rights regarding the assessment of lifting the entry ban as a foreign national with an entry ban issued under Section 122 of the tmmigration Act (Article 27 of Directive 2004t38tF]c) Such an argument would disregard the very essence of the primary and individual right of EEA nationals and their TCN family members to move and reside freely within the territory of the EEA States. 62. The Authority notes that as soon as a TCN falls under the protection of EEA law as a family member of an EEA national, he must be accorded all the rights conferred on him by Directive /EC, unless, based on an individual examination ofthe case, an EEA State restricts those rights on the grounds in Article 27 of Directive /EC. 63. That means in practice that such a TCN should be allowed to enternorway without any conditions and formalities other than the requirement to hold a valid passport and, as the case might be, an entry visa or the valid residence card referred to in Article l0 of Directive 2004/38/EC. Norway is however not banned from assessing, after the entry was granted, whether the rights of this TCN should not be restricted on grounds of public policy, public security or public health or whether the rights of such a TCN should not be refused, terminated or withdrawn in the case of abuse or fraud. As stated in Article 35 of Directive F.C, any such measure by an EEA State shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31 of this directive. 64.In the light of the foregoing considerations, it seems to the Authority that by requiring TCN family members of EEA nationals and Norwegian nationals who fall under the protection of EEA law to apply for the lifting of an entry ban to Norway issued on other grounds than those provided for by Directive E:C to enter its territory, where the procedure for the examination of the lifting of the entry ban takes up to six months, Norway fails to fulfil its obligations under Articles 5 and 27 of that Directive. 2r Judgment in Commission v Spain, cited before, paragraph See the reply from the Norwegian Government to the pre-31 letter, page 4.

11 Page 1l 6 Conclusion Accordingly, as its information presently stands, the Authority must conclude that, by requiring TCN family members of EEA nationals and Norwegian nationals who fall under the protection of EEA law to apply for the lifting of an entry ban to Norway issued on other grounds than those provided for by the Act referred to at point 3 of Annex VIII to the EEA Agreement (Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and theirfamily members to moye and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEq, as adapted to the EEA Agreement by Protocol 1 thereto, to enter its territory, where the procedure for the examination of the lifting of the entry ban takes up to six months, Norway fails to fulfil its obligations under Articles 5 and 27 of that Act. In these circumstances, and acting under Article 31 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, the Authority requests that the Norwegian Government submits its observations on the content of this letter within two months of its receipt. After the time limit has expired, the Authority will consider, in the light of any observations received from the Norwegian Government, whether to deliver a reasoned opinion in accordance with Article 31 ofthe Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice. For the EFTA Surveillance Authority ankbtichel olletdm