The case was handled by Brooks and Associates law office 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 for a first-time application for a residence permit.
“This is the second time a precedent has been set by Brooks and Associates in terms of the wrongful application of an off-island requirement imposed by the Minister of Justice,” stated Brenda Brooks of Brooks and Associates. The first case 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 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 that judgment was that once someone is within their legitimate stay in 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,” Brooks explained.
“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,” Brooks said.
The minister of justice was ordered to make a new decision in the director’s case based on the Appellate Court’s considerations in the verdict. The minister was also ordered to pay legal fees of NAf. 1,400.
https://www.thedailyherald.sx/islands/appellate-court-nullifies-denial-director-s-residency
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