Article 13

146. A foreign national may only be expelled from Norwegian territory in pursuance of a decision made in accordance with the 1988 Immigration Act.

147. According to section 27 of the Act, a newly arrived foreign national may be rejected with immediate effect (“bortvist”) on or within seven days of arrival, subject to certain specific conditions. A foreign national that is rejected pursuant to section 27 of the Act will not have been “lawfully in the territory” within the meaning of Article 13 of the Covenant. However, if the foreign national claims to be a refugee in accordance with Article 1 A of the Refugee Convention, he or she has the right, according to section 40 of the Act, to remain in the country until the case has been finally decided. This does not apply when it is obvious from the circumstances that the foreigner cannot be regarded as a refugee within the meaning of the Refugee Convention.

148. According to section 29, first paragraph, of the Immigration Act, a foreign national may be expelled (“utvist”), if he or she has repeatedly violated one or more of the provisions of the Immigration Act or has evaded the execution of any decision made pursuant to the Act. Furthermore, a foreign national may be expelled if he or she less than five years previously was sentenced or imprisoned for a criminal offence that according to Norwegian law is punishable by imprisonment for more than three months; if the foreign national has been found guilty of a criminal offence that is punishable by imprisonment for more than three months; when expulsion is considered necessary out of consideration for national security; or if the foreign national has committed an act of terrorism, or has tried to protect someone who the foreign national knew had committed such an act.

149. According to section 29, second paragraph, a foreign national may not be expelled if this would be a “disproportionately severe measure” with regard to the foreign national him/herself or his/her family, having regard for their connection to the country on the one hand and the gravity of the criminal offence on the other.

150. A decision to reject a foreign national is, with one exception, made by the police in the first instance (cf. section 31, first paragraph), and the Directorate of Immigration handles administrative complaints. Administrative proceedings regarding expulsion are prepared by the police (cf. section 31, second paragraph), but the Directorate of Immigration makes the decision in the first instance. The Immigration Appeals Board (“Utlendingsnemnda” – established in 2001), which is independent from ministerial direction in individual cases, deals with administrative complaints against decisions made by the Directorate.

151. In cases of expulsion, the foreign national has the right to be represented by a lawyer or another person of his or her choice. The foreign national may lodge an administrative complaint, submit a complaint to the Parliamentary Ombudsman or bring the case before the courts. In cases of expulsion of a foreign national with a work, residence or settlement permit, these measures will all have a postponing effect, which means that the foreign national has the right to remain in the country until the case is finally decided. In cases of expulsion on grounds of refusal of an initial application for a work or residence permit, the decision cannot be implemented until the foreign national has had an opportunity to lodge an administrative complaint, at the earliest 48 hours after the person concerned received notice of the refusal (section 39 of the Immigration Act).

152. There has not been any significant development in the case law regarding expulsion of foreign nationals during the period covered by the present report, but a few decisions that confirm the case law described in the previous report can be mentioned. In a judgement published in Norwegian Supreme Court Reports 1998, p. 1795 et seq., the Supreme Court held that not only can it try whether the Ministry has kept within the limits laid down by the relevant statutory provision and whether it has based its decision on the relevant facts (cf. the decision published in Norwegian Supreme Court Reports 1995 p. 72 et seq., as described in the fourth periodic report, paragraphs 134-136). The Court held that it can also try the Ministry’s decision as to whether expulsion pursuant to the Immigration Act, sections 29 and 30, would be a disproportionately severe reaction against the foreign national or his family, in consideration of the seriousness of the offence leading to the expulsion and the foreign national’s connection to the country. In this case, the foreign national in question had been found guilty of several serious criminal offences, including possession and sale of narcotics. He had a wife and family in Pakistan. The fact that he had had permanent residence in Norway for 22 years, since the age of 12, was not found to entail that expulsion amounted to a “disproportionately severe reaction” within the meaning of the Immigration Act section 29, second paragraph.