Court orders St. Maarten Justice Minister to decide on residence permits
WEDNESDAY, 12 SEPTEMBER 2012
PHILIPSBURG--The Court of First Instance confirmed that the American-Dutch Friendship Treaty is directly applicable in St. Maarten, which means that citizens of the United States are subject to the same rules as European Dutchmen, where residence permits are concerned.
Judge René van Veen stated this Tuesday in a case filed by US national Ricardo Perez, among several other similar cases.
On July 25, 2011, the Court ordered the Minister of Justice to make a new decision on Perez's request within eight weeks, but the Minister had turned down this request no sooner than November 2, 2011.
Perez, his wife and two children had appealed the decision of the Minister of Justice to turn down their requests for a so-called "Declaration of Admission by Law" ("Van Rechtswege Verklaring" in Dutch).
Perez has been living in St. Maarten and is Director of SXM Managing Services NV, the managing company since June 2010 of Oyster Bay Beach Resort.
Perez had applied for a Declaration of Admission by Law in May 2010, as mentioned in Article 3 of the Ordinance on Admission and Expulsion LTU.
Based on the American-Dutch Friendship Treaty of 1956 there are no general objections to grant US nationals admission by law, government lawyer Amador Muller confirmed on behalf of Justice Minister Roland Duncan during the August 27 court hearing.
But the equal treatment of US residents compared with European Dutch residents, especially where the admission by law is concerned, is not unlimited, according to Minister Duncan. These limitations are not incorporated in the treaty and need to be included in an official policy, which has not been implemented to date.
Minister Duncan had ordered extensive research on the matter, which had taken quite some time. This study was nearing completion, it was said.
Seeing that the general policy had not been established yet, it was by no means certain whether litigants, considering their specific circumstances, would qualify for admission by law, it was stated.
The minister's time was up, Judge René van Veen said in dismissing the minister's request to postpone a decision in this case. "The friendship treaty is more than 50 years old, and the defendant already had fifty years to implement regulations," the judge said.
The 1956 Treaty of Friendship, Trade and Shipping between the Kingdom of the Netherlands and the United States stipulates that Americans are to be submitted to the same rules as European Dutch.
In the LTU it is stated that European Dutch will be admitted if they can provide a declaration of good conduct and have housing and sufficient income. The LTU allows a Dutch national to stay in St. Maarten as a tourist for six months. If he/she is going to work on the island or if he/she wants to stay longer than six months, he/she needs to apply for a Declaration of Admission. Contrary to other nationals, Dutch citizens may await the approval of such declaration on the island. He/she is also allowed to work during that time.
Article 2 (i) of the US-Dutch Friendship Treaty states that nationals of either party are permitted to enter the territories of the other party and to remain therein for the purpose of trade between the territories and to engage in related commercial activities, as well as for the purposes of developing and leading the operations of a company in which they have invested a substantial amount, and for other purposes subject to the laws in connection with the admission and residence of foreigners.
In Article 3 of the treaty it is specifically mentioned that, in any part of the Kingdom of The Netherlands, US nationals should receive the same treatment as Dutch nationals who are not born in that part of the Kingdom.
In different cases, the Court of First Instance of Aruba, as well as the Court in The Hague and the High Council had all ruled in favour of the treaty's applicability.
In Perez's case, Judge van Veen declared the minister's previous decision null and void, because it was in conflict with the friendship treaty and insufficiently motivated.
The minister was ordered to make a new decision within five weeks. The minister will have to pay a penalty of NAf. 200 per day, with a maximum of NAf. 20,000, in case of non-compliance.