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Published On: Mon, May 30th, 2022

Court rulings put immigration-policy under pressure

PHILIPSBURG -- The Ministry of Justice suffered two defeats in the Court in First Instance at the hands of attorney Edwin Maduro, who represented two plaintiffs from the Dominican Republic. The court rulings have far-reaching consequences for the government’s immigration-policy.

In both cases, the plaintiffs appealed a refusal by the ministry to renew their temporary residence permits. In both cases, the plaintiffs are married to a non-Dutch partner. The ministry refused to renew the residence permits because the plaintiffs had been gainfully employed.

The guidelines for the national ordinance admission and expulsion and the admission decree require that spouses or partners of foreigners of a foreign nationality have a monthly gross income of at least 2,000 guilders (around $1,117). The minimum wage for workers who are 21 years or older is currently $855. Spouses and partners of people with the Dutch nationality are at liberty to work if they choose to do so.

In earlier jurisprudence, the court ruled that this government-policy is reasonable. But now the court is of the opinion that this policy does not meet the proportionality-requirement of the European Human Rights Treaty.

Article 14 of this treaty prohibits discrimination, the court ruling states, adding that the rights that stem from article 8 of the treaty and the fair balance the defendant has to apply have to be compatible with article 14.

The court furthermore refers to a ruling by the Central Council of Appeal, which states that “a difference in treatment based solely on nationality is only allowed if there are very weighty reasons.”

The court established that limitations for family-reunion with a partner who does not have Dutch nationality differ from reunion with a partner who does have Dutch nationality.

According to the ministry, this distinction serves the protection of the local labor market. The ministry referred for this argument to the national ordinance labor foreigners.

The court noted that this argument is insufficient because it refers to residence-requests for people who want to work on the island. That this policy is designed to protect the local labor market is reasonable, the court ruled.

However, the court says that the ministry did not prove that partners of non-Dutch put more pressure on the labor market than partners of Dutch citizens. That the ministry wants to prevent that family-reunion is abused to get access to the labor market is also insufficient for discrimination based on nationality.

“The defendant has not been able to demonstrate that partners of non-Dutch are using family-reunion to get access to the labor market more than the partners of Dutch nationals.” Furthermore, the court notes, the ministry has every opportunity to act against abuse in individual cases.

“There is no justification for the earlier mentioned distinction and there is no evidence of weighty reasons. “This leads to the conclusion that the policy of the defendant does not meet the requirement of proportionality, and that it is unreasonable because it violates article 14 of the European Human Rights Treaty.”

The court declared the appeal by the two plaintiffs valid and ordered the ministry to grant their request for a temporary residence permit.

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