In April 2012, UNE’s Grand Board considered an expulsion case. The case concerned a man from Sudan who had been expelled for having committed a criminal offence. The Grand Board found that the foreign national’s residence status at the time of the offence was decisive in determining which expulsion
The issue to be considered by the Grand Board was the legal authority and the date to be used in assessments of expulsion in cases where a foreign national has held a permit, but has not done so at the time of the decision. The background for the Grand Board hearing was different legal interpretations and practice by the Directorate of Immigration (UDI) and the Immigration Appeals Board (UNE), and a tendency for board chairs to employ different practices.
The case concerned a foreign national who had received an expulsion decision for having committed a criminal offence. The foreign national had held a valid residence permit when he committed the criminal offence, which had expired on the date of the UDI’s decision.
The Grand Board considered all the conditions for expulsion and registration in the Schengen Information System (SIS). The Grand Board was not unanimous as regards the matter of principle concerning the legal authority for expulsion.
UNE’s practice has largely been that it is the foreign national’s residence status at the time the criminal offence is committed (date of the offence) that is decisive to what protection he or she has against expulsion.
The UDI, on the other hand, is of the opinion that it is the residence status at the time the assessment of expulsion takes place (date of the decision) that is decisive to the legal authority for expulsion.
This issue has previously been submitted to the Ministry of Justice and Public Security. The Ministry instructed the UDI on 24 February 2014 in circular GI-03/2014 on the interpretation of the Immigration Act Section 67 second paragraph and Section 68 second paragraph (external link). The instructions entailed that the residence status at the time of the decision was to be the decisive cut-off point for whether the foreign national was covered by the extended protection against expulsion in the Immigration Act Section 67 or 68, unless the criminal offence was committed before the temporary or permanent residence permit was granted.
The majority's grounds
A majority of five, two board chairs and three board members, concluded that it was the time of the criminal offence that was to be decisive.
Among other things, the majority emphasised that using the time the criminal offence was committed as a basis ensured the greatest predictability for the foreign national. It must be assumed that the foreign national is aware of his/her legal status as a foreign national at the time the offence was committed. The foreign national has no control or influence over when the police/UDI initiate an expulsion case or reach a decision in the case. This can mean in some cases that the foreign national has a residence permit when the criminal offence is committed, but that it has expired when the decision is reached.
The majority found that the Act did not resolve the situation presented in this case. The wording of the Act and the Ministry’s instructions to the UDI appeared to be more relevant to situations where a foreign national is granted a permit that provides better protection against expulsion after the criminal office has been committed.
The Grand Board found that a valid permit was in place that could not subsequently be revoked. In these cases, appellants should not benefit from better protection against expulsion.
The minority's grounds
The minority, a board member and a board chair, is of the opinion that it is the foreign national’s residence status at the time the assessment of expulsion takes place (date of the decision) that is decisive to which expulsion provision can be applied. The minority emphasised the wording of the Act and largely agreed with the UDI’s interpretation, which formed the basis for the Ministry’s instructions.
Precedence set by the decision
Foreign nationals who commit criminal offences, and who are to be expelled, must be assessed on the basis of their residence status at the time they committed the criminal offence. Persons who hold temporary residence permits at the time of the criminal offence are to be assessed pursuant to Section 67 of the Immigration Act. Persons who hold permanent residence permits are to be assessed pursuant to Section 68 of the Immigration Act.