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In certain circumstances, instead of expulsion, UNE may require the individual to wait an extra three years before being eligible for a permanent residence permit.
If a foreigner breaks immigration law, border law, has provided incorrect or misleading information or has not left Norway within the departure deadline, they can be expelled. This is stated in the Immigration Act § 66 first paragraph letter a. Being expelled means that the foreigner must leave Norway. At the same time, they lose the opportunity to return, either for a period or forever. The entry ban will usually also apply to the other Schengen countries.
Expulsion should not take place if it would be disproportionate. This means that we look at the consequences for the foreigner of being expelled. If they have a family in Norway, we also look at the consequences it has for the family. We weigh these consequences against the seriousness of the violation.
Alternative to Expulsion
In the autumn of 2021, a new rule came in the Immigration Act § 70 second paragraph. It allows UNE, instead of expelling, to decide that the person must wait three years longer before they can get a permanent residence permit. This is called "additional time". UNE can also decide up to three years of additional time if UNE in such cases gives a residence permit, even if the appellant does not have an expulsion case, see Immigration Act § 60 sixth paragraph.
The intention of this new rule is not that it should take more than before to be expelled. But in some special cases, UNE can use this form of reaction instead of expulsion. This could be, for example, if the person has children in Norway and there is something special about the children's situation.
Whether it is relevant to give additional time is decided after a concrete overall assessment of the circumstances in each individual case. If there are weighty immigration-regulatory considerations in the case, UNE can also decide that a later application for permanent residence should not be granted. This could be, for example, in cases where the foreigner actively opposes clarifying their true identity.
In cases where a foreigner has been penalised in Norway, such as for providing false identity information, there is still a requirement for additional waiting time to get a permanent residence permit. Consequently, the new provision on additional time becomes particularly relevant in situations where no penalty has been imposed.
In which cases has UNE given additional time?
Of about 90 expulsion cases that UNE reversed in 2022, UNE decided in 28 cases that additional time of 2 or 3 years should be given as an alternative to expulsion. In the grounds for additional time, UNE primarily pointed to expulsion being disproportionate out of consideration for children who were affected, or that there was doubt about it being disproportionate. The assessments are individual and multifaceted. It has been assessed, for example, that the children, in addition to a strong connection to Norway, were particularly vulnerable due to health or other conditions. Or that the appellant was the only or a central caregiver for the children. In two cases, the expulsion decision was reversed with additional time due to strong humanitarian considerations on the part of the appellant himself.
In 17 cases, UNE reversed the expulsion. In most of these cases, UNE granted a new residence permit on humanitarian grounds according to the Immigration Act § 38. The residence permit was in several of the cases limited, so that it does not provide a basis for a permanent residence permit until the foreigner documents their identity. If it is relevant in these cases at a later date to give a permit that counts as a basis for a permanent residence permit, it will be considered whether additional time should be given.
In the grounds for UNE's decisions on additional time, it is often noted that there are severe or very serious conditions justifying expulsion, and that individual and general preventive considerations suggest a reaction. The serious conditions were substantially incorrect information about identity or asylum grounds, prolonged illegal stay or a combination of illegal stay and incorrect information or overlooked departure deadline. In cases where the foreigner had provided false information, previous residence permits were also revoked.
The law provision is relatively new, and UNE has so far made few decisions over a short period. The legislator has established certain guidelines for the provision, but how UNE applies it is still evolving.