Expelled foreign national convicted of not having left Norway

A Moroccan man was permanently expelled from Norway and required to leave the country immediately. He did not comply and was indicted in 2023 for illegal stay, among other offences. Both the District Court and the Court of Appeal acquitted him on this count, as they found he did not have a real opportunity to leave the country. The Supreme Court reached the opposite conclusion.

It is clear that an expelled foreign national cannot be punished for illegal stay if he or she does not have a real opportunity to leave the country. The Supreme Court emphasised that this is a narrow exception and that the foreign national must substantiate that all reasonable measures to leave the country have been attempted.

The Court of Appeal had noted that during the indictment period, there was a challenging diplomatic situation between Norway and Morocco, making it uncertain whether the expelled person would have received assistance from the embassy if he had made contact.

The Supreme Court stated that the issue was not the outcome of the foreign national's obligatory attempts to comply with the departure obligation, but the foreign national's ability to substantiate that all reasonable measures had been attempted. In this case, the Moroccan had not cooperated in obtaining the necessary documents. He had not tried to contact the embassy, nor had he tried to contact his parents in line with the Moroccan authorities' instructions for undocumented citizens.

Since the man had not attempted all reasonable measures to leave Norway, he had to be convicted of illegal stay in the country. Illegal stay for about 15 months initially suggests seven months of imprisonment. After an increase in the sentence due to repetition and another criminal offense, the sentence was set to one year of imprisonment.

The judgment clarifies what is required to establish that an expelled foreign national does not have a real opportunity to leave the country.

Read the whole judgment (Norwegian only) (PDF)

Area of law: Immigration law. Section 108 subsection 3 (f) of the Immigration Act. 

Key paragraphs: 29, 31-32, 34-35

Justices: Matheson, Bull, Arntzen, Falch, Stenvik