In a new judgment in Case E-6/23, MH, the EFTA Court has ruled that derived residency rights for third-country national spouses come before any national measures previously decided upon against an individual by Norway under the Free Movement Directive (Directive 2004/38).
The case was referred to the EFTA Court as a request for an advisory opinion from the the Supreme Court of Norway (Høyesterett).
In essence, the referring national court wanted to know whether national law was compatible with EEA law in the following circumstance: can Norway prosecute a third-country national, an Iranian national (non-EU citizen and non-national of an EFTA-EEA state), who is married to a Norwegian national (a national of an EFTA-EEA state), with an expulsion order prohibits them from entering Norway, when, on the facts of the case, the couple live in Sweden?
If Norway could impose such an expulsion order on the third country national (disregarding the Free Movement Directive), that would prevent the family, including the spouse and the couple’s daughter, from returning home to Norway one day ‘after’ having exercised free movement to Sweden. In effect, what Norway was trying to do is ban Norwegians from returning to Norway with their third country national spouse.
A mix of different movements at different times throughout the entire EEA can be seen in this case, including a failed attempt at seeking asylum in Norway, before eventually getting refugee status in Greece , and then subsequently travelled to Sweden where taking up residence, and then arrested in Norway within the first three month period under the Free Movement Directive.
It is a long judgment, but in effect, in layman’s terms, the EFTA Court stated that derived residency rights for third-country national spouses come before any national measures previously decided upon against an individual by Norway under the Free Movement Directive (Directive 2004/38).
Or in more specific legal language, the EFTA Court ruled that,
‘Chapter VI of the Directive must be interpreted as not permitting an EEA [s]tate to refuse entry and residence in its territory to a third-country national spouse of an EEA national on the sole ground that the third-country national spouse has been the subject, in the past, of an exclusion order on the basis of national measures imposed in connection with past infringements at a time before he or she acquired derived free movement rights under the Directive, without first verifying that the presence of that person in the territory of the EEA [s]tate constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, within the meaning of Article 27(2) of the Directive‘ (para. 75).
And, furthermore,
‘where the EEA [s]tate wishes to penalise the national of a third country for entering and/or residing in its territory in breach of the national rules on immigration before becoming a family member of an EEA national. In the absence of a new assessment in compliance with the Directive, his or her presence on the territory of the EEA [s]tate is lawful as a matter of EEA law. Accordingly, such a person cannot be made subject to sanctions under national law for having breached the original exclusion decision by exercising the derived rights conferred on him or her by the Directive.’ (para. 94)
The judgment of the EFTA Court in Case E-6/23, MH, delivered on 2 July 2024, is available here.