E-6/23 - MH v Patalemyndigheten


E-6/23 - MH v Patalemyndigheten


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Deadlines: Motivation ministry:    8 August 2023
Written observations:                    25 September 2023

Keywords: freedom of movement, expulsion


- Decision of the EEA Joint Committee No 158/2007 of 7 December 2007 amending Annex V (Free movement of workers) and Annex VIII (Right of establishment) to the EEA Agreement: article 1(1); and

- 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 64/221/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/EEC: Articles 5-7 and 27-36.

Facts of the case:

The applicant, MH, is an Iranian national who came to Norway as an asylum seeker in 2008. He received the final rejection on the application for asylum in the Immigration Appeals Board in 2011. In that decision a time limit of 28 February 2012 was set for exiting Norway and the Schengen Area. MH did not leave Norway. In 2016, the Directorate of Immigration adopted a decision on expulsion and exclusion order prohibiting entry into Norway for five years for MH’s failure to comply with the exit time limit. In 2017, MH was sentenced to nine months’ imprisonment by the Court of Appeal  for storage and transport of hashish and marijuana, and for providing a false statement and the use of false identity papers during a police check. The same year, the Police District issued an advance notice of expulsion. The Directorate of Immigration then adopted a decision on expulsion of MH from Norway including an immediate, permanent exclusion order prohibiting entry into Norway, and registration in the Schengen system. In 2018, MH was verified as an Iranian national by Iranian authorities. In 2019, he was arrested by the police and held in detention in order to carry out the expulsion to Iran. MH was expelled to Iran on 11 March 2019.

In 2020, MH was granted refugee status in Greece. In Sweden, he took up residence with his wife, a Norwegian national. In 2021, their marriage was registered in Sweden. The spouse gave notice of moving from Norway to Sweden, where she is still resident together with MH. MH has employment in Sweden. The couple have a daughter together, who was born in Norway in March 2022. In May 2022, MH was arrested in Oslo for driving while intoxicated and MH was indicted with violation of having stayed in the realm despite being expelled from Norway subject to a permanent exclusion order. The District Court delivered a judgment in which MH was found guilty and was sentenced to one year’s imprisonment. He appealed that judgment. In 2023, the Court of Appeal delivered a judgment with the same result as the District Court. MH has appealed the judgment to the Supreme Court. The Appeals Selection Committee of the Supreme Court granted leave to appeal. During the case preparation for the appeal proceedings, the preparatory judge decided to refer a request to the EFTA Court for an Advisory Opinion.

Request for an advisory opinion:

1. Must Article 5(1) and/or Article 6(2) of Directive 2004/38/EC of the European Parliament and of the Council be interpreted as meaning that a third country national, who is married to an EEA national who has exercised his or her right of free movement by moving together with the third country national to another EEA State than the EEA State of which the spouse is a national, has a right of entry and residence in the spouse’s home State for up to three months, even where the third country national, in the time before the marriage was entered into, was permanently expelled from the spouse’s home State in accordance with national rules applicable to third country nationals?

2. If question 1 is answered in the affirmative: Does Article 32 of Directive 2004/38/EC of the European Parliament and of the Council apply, potentially by analogy, in a situation as described in question 1, with the result that the national authorities in the State of entry may require that the third country national files an application to have the exclusion order lifted before the person in question enters that State?

3. Does Article 36 of Directive 2004/38/EC of the European Parliament and of the Council or other EEA law obligations restrict the EEA States’ possibility to sanction violations of national decisions on exclusion orders in a situation as described in question 1 and, if so, in what manner?

Cited (recent) case-law: E-28/15; E-4/19; E-33/07, C-127/08; C-94/08; A C-35/20; and C-290/14.

Policy Area: JenV