Rejection of director citing violation of off-island requirement nullified by the Appellate Court

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Attorney at Law Brenda Brooks

 

PHILIPSBURG, Sint Maarten — On January 15, 2021 the Appellate Court in Administrative Cases agreed with a director who was denied residency citing that he violated the off-island requirement.

The case was handled by Brooks & Associates who argued that the minister’s decision to reject the director in question was not properly motivated citing that the published policies did not in certain terms require a director to be off island by the first-time application of the
residence permit. This is the second time a precedent has been set by Brooks & Associates
in terms of the wrongful application of an off-island requirement imposed by the Minister
of Justice.

The first case that Mrs. Brooks won at the Appellate Court regarding the rejection of a director citing the off-island requirement dates back to May 8, 2017 in which the Appellate Court ruled that the off-island requirement is not an absolute rule, but merely a basic principle to which there are exceptions.

The essence of the judgment of May 8, 2017 was that once someone is within their legitimate stay on St. Maarten an application for residency can be submitted without the applicant being required to leave the island and await the decision abroad.

The decision handed down by the Appellate Court on January 15, 2021 sets a precedent
just like the decision of May 8, 2017 for directors who are applying for residency as the Appellate Court basically rejects the arguments of the Minister of Justice who has continuously wrongfully determined that directors of companies must be off island if they are a first-time applicant and have previously been in St. Maarten outside of their legitimate stay.

Our office used the published procedures and guidelines to convince the court that the
Minister of Justice has been wrongfully rejecting directors using the off-island requirement as grounds for rejection, whereas the Guide to Residency Part I that is published alludes to the possibility of having a director reside on island, prior to obtaining residency without that illegal stay being used against the director when applying for residency. The Appellate Court agreed with the director in this case that it cannot be ascertained from the policy that the off-island requirement is also applicable for the purpose of employment based on directorship.

With this recent decision from the Appellate Court, it is evident that the Minister of Justice
over the years has been wrongfully rejecting requests without complying with the general principles of good governance which is required as a government body established by law.

Any questions pertaining to the judgments referred to in this article, please contact Brooks & Associates for further elucidation and/or explanation on +1721-5433006 or +1721-5433007 or via E-mail: info@brookslegalsxm.com.