The Offices of Brooks & Associates recently secured another precedent setting judgment from the Joint Court of Justice of Aruba, Curaçao, Sint Maarten, and BES, involving the controversial 2022 immigration raids that took place in the first half of 2022. Undocumented persons were arrested and detained and placed in the immigration detention cells for at times over a month without being heard. This prompted challenge from numerous legal counsel representing the detained persons.
The Court of First Instance of Sint Maarten consistently ruled that the arrests were unlawful, ordering the government to pay legal fees and damages to those persons. Brooks & Associates successfully represented several of those cases, but one, case became a protracted legal battle. An immigrant residing in Sint Maarten for over 30 years, had repeatedly sought residency but was unsuccessful. During the 2022 raids, he was arrested, despite living with his Dutch wife and daughter, and was eventually deported two months later. His deportation order barred him from entering Sint Maarten for three years, declaring him undesirable as a threat to the public order, what is known in Dutch as a “ongewenst verklaring”.
Brooks & Associates appealed both the detention and the deportation. The Court of First Instance considered the detention unlawful, but upheld the deportation, the three-year ban and declaration of undesirability, dismissing humanitarian considerations. The ruling was appealed.
On September 30, 2024, the Joint Court of Justice heard the case. Reference was made to various human rights laws, including rulings from the European Court of Human Rights on the right to family life that should have been taken into consideration in the case. However, rather than look into this aspect of the case, the Joint Court of Justice looked into a more pertinent matter that serves as the fundamental principle of good governance, the principle of legality. Although the current immigration legislation allowed the Minister to authorize the deportation of an undocumented person, the law does not make reference to a three-year ban or a declaration of undesirability. The Court of First Instance had already ruled in 2024 that the Minister lacked such authority, a decision that was appealed by the Minister’s counsel.
The Joint Court of Justice took the opportunity to address such a complex issue in this case, allowing counsel (on both sides) to present further arguments. We argued in a nutshell that only a national ordinance could attribute the necessary competency to the Minister of Justice to issue a three-year ban and a declaration of undesirability. The Minister countered by arguing that such authority, although not explicitly granted by law, was necessary to control immigration and that Sint Maarten has adopted the practice for so long, it is factually a part of the legal framework.
While the Joint Court of Justice acknowledged the Minister’s position, it emphasized the principle of legality, even overturning its own previous rulings from years ago on this subject matter. The Joint Court of Justice determined that the Minister must be explicitly granted authority by law—not policy—to impose a three-year travel ban or declare someone as an undesirable alien. In this case, the Minister was found not competent to issue such measure against the immigrant, and the deportation order was annulled in its entirety. The Joint Court of Justice also ordered the Government to pay the legal fees in the case.
The Court did not find conclusive evidence of an effective family life in this case but noted that the right to family life should be considered in such decisions. This ruling marks a significant shift, as previous Ministers had maintained that family life was irrelevant when the individual was undocumented.
The case underscores the shortcomings of Sint Maarten’s immigration laws, which are outdated and out of step with modern human rights standards. The current Minister of Justice now faces the challenge of enforcing immigration laws that allow deportation but do not prevent individuals from simply returning to Sint Maarten. In the view of Brooks & Associates, the ruling signals a move toward aligning Sint Maarten’s legal immigration framework with Kingdom and international human rights standards, as only relying on an outdated policy, rather than updating the relevant national ordinances, diminishes the competencies of our current and future Ministers of Justice.
Ultimately, the 2022 raids, and the subsequent arrests, detentions, and deportations, were deemed unlawful in their entirety, thanks in part to the work of Brooks & Associates. This case serves as a reminder of the need for comprehensive reform in Sint Maarten’s immigration policies to protect individuals’ rights and ensure legality.
