The burden of proof for derived EEA law in a criminal case

The case concerned punishment for violating an entry ban following expulsion. A Moroccan national was charged with breaching a permanent entry ban. The Court of Appeal acquitted him because it could not be ruled out that he had acquired a derived EEA right of entry through his Norwegian spouse, with whom he had lived in Spain.

The question before the Supreme Court was which standard of proof the courts must apply when determining whether the defendant had acquired a derived EEA right of entry and residence at the time he travelled to Norway.

The Supreme Court held that the applicable standard of proof is the balance of probabilities when the courts assess the factual basis for whether the defendant has acquired such a right. Considerations of consistency within the legal framework and the need for an effective immigration administration require that the standard be the same as in administrative law. A stricter standard in criminal cases could otherwise mean that breaches of a valid administrative decision cannot be punished. The Court of Appeal’s judgment was set aside due to the application of an incorrect standard of proof.

The judgment clarifies the standard of proof to be applied where a right of entry under EEA law is invoked in criminal proceedings concerning breaches of an entry ban.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Area of law: Criminal law, section 71 subsection 2 and section 108 subsection 3 (e) of the Immigration Act

Key paragraphs: 37, 46, 53

Justices: Webster, Falch, Thyness, Stenvik, Vang