G-07/2020 – Revised circular relating to Entry into force of the Regulations relating to rejection etc. of foreign nationals without a residence permit in the realm, out of concern for public health

1. Introduction

The Ministry of Justice and Public Security refers to the Regulations of 15 March 2020 No. 293 relating to rejection etc. of foreign nationals without a residence permit in the realm, out of concern for public health (last amended 30 March 2020). Foreign nationals arriving in the realm after 16 March at 8 a.m. are subject to implementation of the Regulations.

It is pointed out for clarity’s sake that the Regulations do not prevent Norwegian nationals or foreign nationals with residence permits from entering Norway. It is also pointed out that a foreign national is no longer a ‘foreign national without a residence permit’ when a residence permit application has been approved. This is the case even if the permit has not yet been effected. Additionally, foreign nationals whose application for a residence permit was approved after 16 March at 8 a.m. will fall outside the category ‘foreign national without a residence permit’. The Ministry will soon address whether there is a need, given the situation, to defer the time from which new permits shall be valid, etc.

This circular replaces Circular G-05/2020 of 18 March 2020. It is unclear how the situation is developing, and it is changing rapidly. The impact of infection control measures that have been introduced must be assessed continuously and weighed against important societal and business interests affected by the measures. This circular could be subject to rapid amendments and adaptations.

2. Main rules regarding rejection

The Regulations stipulate that foreign nationals without a residence permit may be rejected for reasons of public health, due to the outbreak of the hazardous and widely infectious disease COVID-19. This means that all foreign nationals without a residence permit, who are not covered by any of the exemptions cited below, will be rejected without further consideration of the risk of infection posed by each individual.

The Regulations establish exemptions for:

1. EEA nationals, and their family members as defined under section 110 of the Immigration Act, who reside or work in Norway; see section 1, third paragraph a) of the Regulations
2. EEA nationals who are to begin a work relationship in an industry where there is a critical need for labour; see section 1, third paragraph b) of the Regulations
3. posted workers from an EEA country who have begun a work assignment in Norway or are to begin an assignment that will last for three months or more; see section 1, third paragraph c) of the Regulations
4. Foreign nationals who will only be staying in airport transit before departing Norway; see section 2 a) of the Regulations
5. Foreign nationals covered by exemption from the duty of quarantine pursuant to section 6 of the Regulations of 27 March 2020 No. 470 relating to infection control measures etc. in connection with the coronavirus outbreak (COVID-19 Regulations); see section 2 b) of the Regulations
6. Foreign nationals seeking protection (asylum) in the realm; see section 2 c) of the Regulations
7. When special reasons so indicate, such as specific care responsibilities for persons in Norway or other compelling welfare considerations; see section 2 letter d) of the Regulations.

Regarding point 1 above, on EEA nationals and their family members who reside or work in Norway

EEA nationals who work in Norway also include commuters. However, it is emphasised that only certain defined groups are exempted from the duty of quarantine; see section 6 of the Regulations of 27 March 2020 No. 470 relating to infection control measures etc. in connection with the coronavirus outbreak (COVID-19 Regulations). See also subheading 3 in this circular.

With regard to family members of EEA nationals, it is pointed out that only family members already resident in Norway are exempt; see section 1, third paragraph a) of the Regulations. Family members who are not resident in Norway may be rejected, unless ‘special reasons’ indicate that they are not be rejected; see section 2 d) of the Regulations and subheading 4 below.

EEA nationals and their family members who reside or work in Norway do not include, in this context, EEA nationals or family members who live or work in Svalbard.

Regarding point 2, on businesses with a critical need for labour

‘An industry where there is a critical need for labour’ in this context refers to agriculture, landscaping, forestry, fishing, the fish industry, the food industry, the petroleum industry, development of hydropower and wind power and power grids.

Regarding point 3, on posted workers

‘Posted workers’ (see section 1, third paragraph c), of the Regulations) in this context refers to self-employed contractors or employees of a company in an EU/EEA country that have a contract with a Norwegian company to carry out an assignment in Norway.

Section 2a of the Regulations establishes exemptions for other specific groups of persons:

     The following foreign nationals covered by section 1, first paragraph, may not be rejected:

1. Foreign nationals on their way to work or residence in Svalbard.
2. EEA nationals and their family members who need to travel through Norway to get home.
3. Nordic nationals from the Faroe Islands, Greenland or Åland, and their family members, who reside or work in Norway.
4. Members of the Sami community in the exercise of reindeer herding.
5. Foreign nationals who perform commercial transport of goods and passengers for payment, or are en route to or from such an assignment.
6. Journalists and other personnel on assignment for a foreign media institution.
7. Foreign nationals as specified in sections 1-4 and 1-5 of the Immigration Regulations, and who can present a diplomatic or service passport, or possibly a national passport in combination with a Norwegian ID card issued by the Ministry of Foreign Affairs, or in combination with a Schengen residence card for embassy personnel. The same applies to dual-accredited diplomats and diplomatic couriers.
8. Military personnel as specified in section 1-7, second and third paragraphs, of the Immigration Regulations, and their spouse, cohabitant or children who are registered with and accepted by the Ministry of Defence.
9. Foreign nationals who work on mobile or fixed installations; see sections 1-10 and 1-11 of the Immigration Regulations.
10. Holders of a valid aviation personnel licence (see section 2-9 of the Immigration Regulations) en route to or from active service.
11. Seamen, en route to or from active service, with an identity card as specified in section 2-8 of the Immigration Regulations or a Philippine Seafarer’s Identification and Record Book or a Philippine national passport as specified in section 3-1 (j) of the Immigration Regulations
12. Foreign nationals who have been granted a visa by the Norwegian decision-making authority after 15 March 2020; see Ministry of Justice and Public Security instruction GI-08/2020.
13. A spouse, cohabitant or child of a posted foreign service officer at a Norwegian foreign service mission.
14. Employees of international organisations or employees in organisations that perform international humanitarian efforts, who are on assignment or en route to or from such assignment.

Regarding point above on Svalbard

An exemption has been established for foreign nationals on their way to work or residence in Svalbard (see section 2a a) of the Regulations) to ensure that foreign nationals who live or work in Svalbard will be able to pass through the Norwegian mainland when travelling between other countries and Svalbard. This exemption must be seen in connection with section 10 of the COVID-19 Regulations, under which everyone arriving from abroad must undergo quarantine on the Norwegian mainland before onward travel to Svalbard can take place. It is pointed out for emphasis that this requirement continues to apply.

Departure from Svalbard to a foreign country via the Norwegian mainland is covered by the exemption for airport transit contained in section 2 a) of the Regulations. Reference is also made to the section below, where it is stated that EEA nationals and their family members who need to travel through Norway to get home may not be rejected; see section 2a b) of the Regulations. This exemption covers all transport.

Regarding point b above, on EEA nationals etc. who need to travel through Norway

An exemption has been established for EEA nationals and their family members who need to travel through Norway to get home. It is pointed out that this exemption covers all transport, but it must be seen in connection with the duty of quarantine under section 7 of the COVID-19 Regulations.

The exemption also applies in cases where a foreign national arrives in Norway and there is a reasonable explanation for why the person does not have a ticket to travel onwards the same day – for example, that he or she has not yet managed to obtain a ticket. The foreign national must show clearly that he or she will do what is necessary to travel onwards as soon as possible, and to comply with the duty of quarantine during the temporary stay in Norway.

3. A closer look at exemptions based on maintaining proper operation of critical public functions

Section 2 b) of the Regulations states that foreign nationals who are covered by an exemption from the duty of quarantine pursuant to section 6 of the COVID-19 Regulations may not be rejected.

This means, first, that foreign nationals who travel in connection with their work between home and their workplace, and in so doing cross the borders between Norway, Sweden and Finland, shall not be rejected; see section 6, first paragraph, of the COVID-19 Regulations.

This also means that foreign nationals who are ‘essential to maintain the proper operation of critical public functions and attend to fundamental needs of the population, including persons who perform goods and passenger transport functions’, may not be rejected; see section 6, second paragraph, of the COVID-19 Regulations. Those Regulations require that the foreign nationals in question are working or travelling to and from work.

Examples of other foreign nationals who may not be rejected because their presence in Norway is essential to maintain the proper operation of critical public functions and attend to fundamental needs of the population include foreign nationals invited by the Norwegian authorities for special purposes. Such foreign nationals could, for example, have special expertise in addressing virus outbreaks or other skills required by the health service or other critical public functions.

The critical public functions are:

• Administration and crisis management
• Defence
• Law and order
• Health and care services
• Rescue service
• Digital security in the civilian sector
• Nature and the environment
• Security of supply
• Water and wastewater
• Financial services
• Power supply
• Electronic communications
• Transport
• Satellite-based services

Also included are pharmacy and maintenance.

4. A closer look at exemptions for special reasons

Section 2 d) of the Regulations states that foreign nationals may not be rejected if ‘special reasons so indicate, such as specific care responsibilities for persons in Norway or other compelling welfare considerations’. This applies to cases involving, for example:

• Minor children and foster children of Norwegian or foreign nationals who live or work in Norway.
• Foreign nationals who have a special care responsibility for persons who live in Norway, including minor children or foster children or others with special care needs. This includes foreign nationals who are to carry out agreed or formalised contact with a minor Norwegian child or child living in Norway.
• Foreign nationals who, due to compelling welfare considerations, need to enter Norway, and the visit cannot wait; an example would be a foreign national who seeks to visit a dying or severely ill close family member in Norway (spouse/cohabitant, sibling or family member in ascending or descending line).
• Foreign national ship passengers who began sailing before 16 March at 8 a.m. and need entry to Norway in order to return to their home country. Clarification is required as to how onward transport out of Norway is to occur in a sound manner that does not violate the COVID-19 Regulations.

It is pointed out that the list above is not exhaustive in relating examples of what may be regarded as ‘special reasons’. The Directorate of Immigration may issue further guidelines.

5. A closer look at documentation requirements

Individual foreign nationals must be able to substantiate when necessary that they are covered by one of the exemptions.

6. Relationship to quarantine regulations

It is emphasised that the exemptions to the rejection provisions do not constitute exemption from the rules relating to quarantine and isolation in force at any given time.

7. Relationship to the Immigration Act’s rules on rejection

The Ministry points out that the Regulations relating to rejection etc. are a supplement to the Immigration Act’s rules on rejection, not a replacement of them. Foreign nationals may still be rejected pursuant to the rules of the Act, including on public health grounds under section 17, first paragraph (l) and section 121 (see also section 123), provided that the conditions are in place and ordinary procedural rules are followed.

The aforementioned provisions of the Immigration Act do not provide specific exemptions for the groups of persons described in sections 1 to 2a of the Regulations or for persons who were in Norway before 16 March 2020. However, the Ministry would like to emphasise that persons who fall outside the Regulations may not – at this time –be rejected solely by reference to the general situation relating to the COVID-19 outbreak. In such cases, an individual assessment must be made with focus on specific circumstances of the foreign national who is being considered for rejection. The Ministry accepts that there may be grounds for rejecting foreign nationals who pose a special infection risk, for example due to behaviour contravening official advice and guidelines.     

8. Use of coercive measures

The clarification that has been added in section 1, second paragraph, indicating that coercive measures may be employed on the legal basis of provisions in Chapter 12 of the Immigration Act , entails, among other things, that a decision leading to arrest and detention may be taken pursuant to the same legal bases and conditions of the Immigration Act that apply in other rejection cases.

In a case, for example, where someone is stopped by the police under section 21a of the Immigration Act and is most likely to be rejected under the Regulations relating to rejection etc., then section 106, first paragraph (i), of the Immigration Act may provide grounds for arrest. If the police believe it is necessary to hold the foreign national for more than 24 hours (see section 106b, third paragraph, last sentence of the Immigration Act), the most relevant legal basis for assessing this will probably be section 106, first paragraph b), of the Immigration Act, concerning risk that implementation of an administrative decision will be evaded. 

With regards,

Nina E. D. Mørk (by authority)
Deputy Director General

Kaja Kolvig
Senior Advisor