Published On: Mon, Mar 22nd, 2021

Court once again nullifies Justice Minister’s rejection in immigration case

~ Court of First Instance of St. Maarten once again nullified rejection given in an immigration case by the Minister of Justice ~

PHILIPSBURG — On March 15, 2021, the Court of First Instance handed down a decision in which the rejection by the Minister of Justice in an immigration case was nullified. The immigrant in question followed proper procedures to regulate her stay with her Dutch husband in St. Maarten. The case in question is eerily similar to a previous case in which the rejection of an immigrant was also rejected on similar grounds. Seems to be a clear-cut case of same script, different cast.

As per procedure, the immigrant who is a Guyanese national received permission from the Immigration Department to marry a Dutch St. Maartener here on Sint Maarten. This permission can only be granted once the
immigrant goes through rigorous interviews with the Immigration Department. Once the marriage was approved and eventually done, the immigrant following the advice of the Immigration Department and as per procedure, left St. Maarten so that her husband could apply for her permit for temporary residency. The husband made sure to attach to the application evidence that his wife had left the country prior to the application.

Literally, a year later the Minister of Justice rejected the application citing that the immigrant had resided in St. Maarten several years illegally prior to the request for residency and that was considered a violation of the public
order. The rejection also alluded to an additional argument that the immigrant was still on the island awaiting a decision on the application despite the Immigration Department receiving clear evidence such as a copy of a stamped passport and travel documentation showing that the immigrant has been abroad.

During the pleading phase before the Court of First Instance, the Minister departed from the argument that the immigrant was on the island at the time of submission, but remained firm on her stance that the immigrant’s prior illegal stay on the island was a violation against the public order. The Minister of Justice also went on a tangent on the previous decision by the Appellate Court despite not being the one who initiated an appeal in that particular case, and therefore legally speaking the Minister “agreed” with the ruling of the Court of First Instance concerning prior illegal stay. During the hearing, the Minister of Justice was also confronted with a myriad of similar cases where the immigrants in those cases received a permit, insofar that they followed the necessary procedures, yet had an illegal stay prior to their applications. The Minister alluded to an upcoming policy amendment that would serve as a proper legal basis for the rejection, which as we all know was published on February 19, 2021, 4 days after this case was handled.

The Court eventually rightfully ruled on March 15, 2021, that at the time that the Minister of Justice could not legally use the previous illegal stay as a ground for rejection as there is no published policy restricting those
immigrants from leaving the island and subsequently requesting residency via the lawful channels.

The Court nullified the rejection, and the Minister of Justice was condemned to make a new decision within four weeks and to pay Naf.1,550.00 in legal fees.

The case was handled by Ashton Richardson, LL.M. of Brooks & Associates and B&A Consultancy Services under the guidance of Brenda Brooks.