When a deported Moroccan criminal married a Norwegian citizen, doubt arose in the courtroom as to whether he could be denied residence. The case has been ongoing since 2008 and will now go to the Court of Appeal (lagmannsretten) for the third time.
The serial case concerns a Moroccan citizen who applied for asylum in Norway in 2008, using a false identity. It took two years before the application was rejected. The man remained in Norway illegally.
He was serving a prison sentence when the Norwegian Directorate of Immigration (Utlendingsdirektoratet, UDI) in 2012 saw its opportunity to serve him with a permanent expulsion from the Schengen area.
But the police’s attempts to have the man transported back to Morocco after completion of his sentence failed. He continued to reside illegally in Norway and soon entered into a relationship with a woman holding Norwegian citizenship.
“Derived right” to residence?
After eight years, the Moroccan in 2016 voluntarily travelled from Norway to Spain, where he obtained a residence permit until 2021. But the Spanish authorities were at that time not aware of the Norwegian expulsion decision. The woman with Norwegian citizenship visited him regularly, and in January 2020 they married in Spain.
The question that recently had to be clarified by the Supreme Court (Høyesterett) is whether the man, despite being expelled indefinitely, through the marriage acquired “a derived right of entry and residence” in Europe under the EEA legislation.
However, his residence in Spain was not extended, since the authorities became aware of the Norwegian entry ban imposed on him and rejected the application.
He was also refused by the Norwegian Directorate of Immigration (UDI) in 2021 in his request for the lifting of the entry ban to Norway. Despite this, he travelled to Norway on 15 June 2024.
In September of the same year he was arrested in his wife’s home and charged with breach of the entry ban.
Acquitted twice in the Court of Appeal
The Indre og Østre Finnmark District Court (tingrett) sentenced the man to one year’s imprisonment for breach of the Immigration Act (utlendingsloven). After appeal, he was acquitted in the Hålogaland Court of Appeal (Hålogaland lagmannsrett) in January 2025, on the grounds that he had acquired the notorious “derived” right of residence and entry within the EEA area through the marriage.
The prosecution appealed. The Supreme Court’s Appeals Selection Committee (Høyesteretts ankeutvalg) set aside the acquittal on account of a procedural error:
The Court of Appeal had failed to take into account an important Grand Chamber judgment delivered by the Supreme Court a few days earlier. In that case the Court had in advance sought advice from the EFTA Court, which concluded that an acquired right of entry, for example through marriage, takes precedence over a previously adopted decision imposing an entry ban. This also applies if the foreign national is “economically inactive”. The Supreme Court unanimously endorsed this interpretation.
The Moroccan’s case therefore returned to the Court of Appeal. There he was acquitted for the second time.
On this occasion the judges proceeded on the basis that any reasonable doubt shall benefit the accused – and under this doubt they found that the wedding still gave him a right to residence.
The prosecution appealed on the evidentiary standard and argued that an ordinary preponderance of probability (alminnelig sannsynlighetsovervekt) must apply. The defence counsel, for his part, maintained that the criminal-law standard of proof, namely that any reasonable doubt shall benefit the accused, had to be applied.
The prosecution prevailed in the Supreme Court. The Court of Appeal had applied the wrong standard of proof. The conclusion was that the evidentiary standard “may have had significance for the outcome”, and the Supreme Court therefore set aside the judgment of the Court of Appeal.
The case will now return for a third round in the Court of Appeal. The date is not yet known.
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