The right to entry under EEA law takes precedence over previous expulsion decisions

An Iranian national was permanently expelled from Norway in 2017. After returning to his home country, he married a Norwegian national. He then obtained residence in Sweden, and his Norwegian spouse moved in with him there. During a trip to Norway with his spouse, he was arrested and later indicted for violating the exclusion order.

The man was sentenced in the District Court and the Court of Appeal to one year of imprisonment for violating the exclusion order, without considering whether he had acquired the right to enter and reside in Norway under EEA law. The Supreme Court referred the question to the EFTA Court, which replied that the defendant, as a family member of an EEA citizen, could have the right to enter and reside in Norway, and that such a right would take precedence over a previously issued exclusion order.

Both the defendant and the Public Prosecution Authority believed that the EFTA Court's opinion should be followed, while the State – acting to protect the public interest in a potential rule conflict – argued that there was reason to deviate from the EFTA Court's view.

The Supreme Court as a grand chamber unanimously found that there was no basis for disregarding the EFTA Court's opinion.

According to the Citizens' Rights Directive, the spouse of an EEA citizen can accompany the EEA citizen when travelling to another EEA state – a host state. The Directive does not explicitly grant the right to return to the EEA citizen's home state, in this case, entry into Norway. Nonetheless, the Court of Justice of the European Union (CJEU) has established that the right to leave would not be sufficiently effective without the possibility to return with the family.

For workers, this is derived from treaty provisions found in the EEA Agreement. However, for economically inactive persons, this is derived from the treaty provision on free movement of Union citizens, which is not reflected in the EEA Agreement. But also under the EEA Agreement, economically inactive persons have a right to free movement based on directives that are and have been incorporated into the agreement. For this right to be sufficiently effective, family members must have a corresponding right in the EEA as in the EU to accompany the EEA citizen upon return to the home state.

The interpretation is based on the commitments made by the EFTA States through the EEA Agreement and the legal acts incorporated into it, all interpreted within an EEA context. The interpretation results in equal treatment within the EEA and the EU. Although the legal bases in the EU and the EEA differ, and the reasoning for the interpretation result is therefore distinct from that of the CJEU, it involves interpreting a right to free movement that has been part of the EEA Agreement from the start, in the light of the principle of effectiveness and in the same manner as the right to free movement for workers. In the Supreme Court’s view, this is not prevented by sovereignty considerations. While it represents some legal development, it is not a significant leap.

The rules in the Citizens' Rights Directive on entry and residence in a host state apply analogously to return to the home state, according to the CJEU. The conditions for expulsion in the directive are stricter than the general rules for expulsion in the Immigration Act. If the stricter rules for EEA citizens are not followed, a right to enter and reside under EEA law will take precedence over a previously issued . Thus, violating such an exclusion order cannot be punished.

It is a condition for a family member to obtain derived rights that the stay in the host state has been suitable to establish or strengthen family life. Since the Court of Appeal did not consider this condition, its judgment is set aside. The case must be reheard in the Court of Appeal.

The Supreme Court's judgment provides guidance on the application of the homogeneity principle – meaning that rules in the EU and the EEA should be interpreted similarly to achieve equal treatment. The judgment also clarifies the relationship between EEA law and previously issued exclusion orders.

Read the judgment from the Supreme Court (PDF)

Area of law: Criminal law, EEA law, immigration law. Sections 108 and 71 of the Immigration Act. 

Key paragraphs: 56–57, 66, 106–107, 127 and 134–136. 

Justices: Øie, Webster, Bull, Arntzen, Falch, Bergh, Østensen Berglund, Thyness, Sæther, Hellerslia, Stenvik