PHILIPSBURG--If St. Maarten wishes to ban individuals from re-entering the country after being sent back to their country of origin, the National Ordinance on Admission and Expulsion of Foreigners (LTU) must be amended to include an ongewenstverklaring (declaration of undesirability) Justice Minister Nathalie Tackling said in the House of Parliament on Friday after addressing a series of questions on immigration issues.
Late Thursday afternoon, Tackling received a list of questions submitted by Members of Parliament on October 21, 2024, during a discussion with her predecessor, Lyndon Lewis, regarding pending matters in the Ministry of Justice. However, the questions were not attributed to specific MPs and were to be addressed during the continuation of the meeting scheduled for Friday.
“Unfortunately, the list does not indicate which Member of Parliament asked which question,” Tackling said at the start of Friday’s meeting. “I also cannot confirm whether this is the complete list of questions.”
Anticipating potential omissions, Tackling apologised in advance, saying, “If any questions are missing, please know this was not done out of any bad mind on my part. I am more than willing to answer any additional questions that may arise.”
The first set of questions concerned Immigration issues, starting with: Why are residence permits for partners of St. Maarteners still being issued with the condition that they are not allowed to work? Reference was made to a court ruling on November 30, 2022, which prohibited the use of the phrase “Not allowed to work.”
Tackling acknowledged the court’s decision and explained the adjustments made to the restrictions section of residence permits. “The necessary changes have been implemented,” she said. “Previously, residence permits either stated ‘Work is not allowed’ or ‘Work is freely permitted.’ We are working to remove these classifications entirely. While some instances may still occur due to IT system issues, we are actively addressing them to ensure they are permanently removed.”
She further clarified that residence permits will now include the following standardised statement: “This residence permit does not exempt you from the requirements of the National Ordinance on Employment of Foreigners.”
Tackling emphasised that these adjustments aim to align permit regulations with legal requirements while ensuring clarity for affected individuals. The National Ordinance on Employment of Foreigners outlines the conditions under which non-citizens are permitted to work in St. Maarten, requiring employers to apply for work permits on their behalf unless exemptions apply.
Additionally, Tackling clarified that decisions regarding an individual’s right to work in St. Maarten do not fall under the responsibility of the Minister of Justice but are instead under the purview of the Minister of Public Health, Social Affairs, and Labor VSA.
Next, several questions addressed immigration detention. “Why does the Ministry of Justice accept the practice that a suspect who is in detention is automatically transferred to immigration detention at the request of the prosecutor?” Tackling refuted this assumption, saying, “It is not the Prosecutor who decides whether or not a person is transferred to immigration detention. Immigration-related detention is overseen by the immigration authorities under the auspices of the Minister of Justice, often in conjunction with judicial oversight.”
She explained that an interview is held with individuals who have been transferred. “Their legal status on the island is reviewed and taken into consideration by the Minister of Justice,” she said.
She referred to Article 16, in conjunction with Article 19, of the National Ordinance on Admission and Expulsion (LTU), which grants the Minister of Justice the authority to detain individuals and facilitate their removal from St. Maarten under certain conditions. “This authority is exercised when the individual does not meet the requirements to reside legally in the country.”
When there are grounds to believe that a person may attempt to evade the removal process – such as by absconding or failing to cooperate with immigration authorities – the Minister of Justice can proceed to have the individual detained without the need for a formal judicial order. All decisions are signed by the Minister of Justice, pending a mandate arrangement, which would allow immigration authorities to act on the Minister’s behalf.
Persons are held at the Foreigner Detention Center in Simpson Bay, next to the Simpson Bay Bridge. The facility is operated by the Immigration and Border Control Services. Tackling was requested to inform Parliament under which law this facility was approved as a detention centre and by what standards.
She said, “There are no explicit national or international laws regarding the approval of immigration detention centres; in other words, the facilities don’t have to be certified as such. However, the Law Enforcement Council supervises and inspects the quality and operations of detention centres in the Caribbean part of the Dutch Kingdom. The Council also assesses the extent to which the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) are being followed.”
The CPT last visited St. Maarten, Curaçao and Aruba in May 2022. The Committee found that deliberate physical ill-treatment of persons in police custody, immigration detention and prison was not a major issue. The delegation received only a few isolated allegations of physical ill-treatment by staff in these establishments, as well as some reports of excessive use of force during apprehension, excessively tight handcuffing, and verbal abuse. Material conditions at the Simpson Bay Immigration Detention Facility in St. Maarten were deemed acceptable in several respects.
However, Tackling referenced the 2004 report of the Law Enforcement Council on the treatment of detained immigrants in St. Maarten, saying that the Council’s overall assessment was rather positive. “They mentioned that, although they had some critical remarks regarding safety measures, the Council, in its own words – and I quote – ‘has a positive image of the Foreigner Detention Center (FDC).’ Their inspection showed that ‘the treatment of illegal foreigners during immigration detention by judicial organisations can generally be considered humane’ and that the CPT’s recommendations have been partially followed.”
Tackling was then asked whether she was aware of the recent court ruling that the Minister of Justice cannot ban a person from entering St. Maarten after they have been sent back to their country of origin. “I am indeed aware of the ruling, and in my view, it aligns with the principle of legality,” Tackling said. “This principle dictates that government powers are limited by law and that every action must have a clear legal basis.”
She explained that while banning a person from St. Maarten may be in line with the Richtlijnen, a policy document, it is not enshrined in law – making such a ban legally unenforceable.
“Binding powers cannot be derived from policy alone; they must be established in law,” Tackling emphasised. “The ongewenstverklaring(declaration of undesirability) must be explicitly regulated in the LTU. We see that this has already been done in the BES islands [Bonaire, St. Eustatius, and Saba], where Articles 16D and 16E of their legislation specifically address the revocation of undesirable alien status and the legal consequences associated with it.”
Tackling concluded by stating that if St. Maarten wishes to implement the ongewenstverklaring, amendments to the LTU will be necessary.
