Introduction
On December 15, 2014, the Joint Court of Justice of Aruba, Curacao, Sint Maarten, and BES (the Appeal Court) brought out a groundbreaking decision (the Decision). On the basis of said Decision, it may be concluded that, for Sint Maarten immigration purposes, citizens from the European Union member States should receive equal treatment as the category Dutch citizens listed under Article 3 sub f of the Immigration Ordinance St. Maarten.
Breakdown of the Decision
Article 49 of the Overseas Countries and Territories – OCT Resolution (Landen en Gebieden Overzee – LGO Besluit) constitutes the cornerstone of the Decision.
Article 49 contains a non discrimination clause which stipulates that OCT’s shall treat companies and citizens of EU states equal to companies and citizens of ‘third countries’.
Article 49 OCT Resolution is, in its turn, based on Article 49 of the Treaty on the functioning of the European Union – TFEU (Verdrag betreffende de werking van de Europese Unie), which prohibits limitations in the freedom of establishment and residence of a citizen of a EU member State in another EU member State.
After having concluded that St. Maarten may not discriminate against EU citizens, the Appeal Court refers to Article 3 of the Immigration Ordinance of St. Maarten (Lv. toelating en uitzetting St. Maarten).
Article 3 contains a limitative list of persons whom qualify for admission into St. Maarten by operation of law (toelating van rechtswege).
Article 3 sub f mentions the category Dutch citizens (meerderjarige Nederlanders) whom qualify immediately for admission into St. Maarten by operation of law, provided they meet certain conditions.
The decision may have consequences for Aruba
The Decision was brought out in a case filed and conducted in St. Maarten. However, the other Dutch Caribbean islands Aruba, Curacao, Bonaire, St. Eustatius and Saba also fall under the judicial jurisdiction of the Appeal Court. Therefore, the Decision may (or: should) have consequences for the other Dutch Caribbean islands as well. Hence, also for Aruba.
The treatment of ‘Other’ Dutch citizens on the basis of the Aruban Immigration Ordinance
The Aruban Immigration Ordinance is largely similar to the St. Maarten Immigration Ordinance.
The Aruban Immigration Ordinance also includes in Article 3 a limitative list of persons whom qualify for the status of admission into Aruba by operation of law.
Article 3 sub f mentions the category ‘Other’ Dutch citizens. This category acquires the status of admission into Aruba by operation of law after having been admitted into Aruba for 5 consecutive years. A residence permit is issued to the Dutch citizen for the duration of 1 year, which is renewable every year. After 5 years, the Dutch citizen may request a certificate of admission by operation of law.
US citizens and the Friendship Treaty
In 2015, for the first time a certificate of admission into Aruba by operation of law was issued to a US citizen. For Aruban immigration purposes, US citizens receive the same treatment as Dutch citizens based on the Dutch American Friendship Treaty (Treaty of Friendship Commerce and Navigation – 1956).The aforementioned has no direct connection with the Decision of the Appeal Court, however it deserves mentioning.
Treatment of EU citizens, equal treatment not applicable to employment
Based on the above, it may (or: should) be concluded that EU citizens would qualify for treatment equal to Dutch and US citizens in Aruba.
There is one caveat however: the equal treatment does not apply to employment (loondienst). Hence, a work permit application filed by an Aruban employer for the benefit of the EU citizen would not be treated the same as a work permit application filed in behalf of a Dutch or US citizen. This exception / exclusion is expressly stipulated in Article 49 TFEU.