The Minister of Justice Roland Duncan has publicly and vociferously denied changing the Brooks Tower Accord policy as far as the time limit is concerned. This means that anyone who arrived after 2005 simply cannot obtain a residence permit under the BTA. It is public knowledge however, that his staff accepted BTA applications for everyone, including people who arrived for the first time on St. Maarten in 2010. How this happened, and exactly who ordered his staff to do so, is difficult to ascertain as the Minister has publicly stated that he works by oral decree and it is difficult to pin down exactly what the Minister did say, unless one has him on tape.
At any rate, the labour policy of 2009 states clearly that first time applicants cannot obtain work permits for the following jobs. If you have one these jobs, you can get your work permit renewed, but the door is shut for first timers, meaning the former executive council has placed a moratorium on certain jobs. Jobs such as cleaner, dishwasher, car cleaner, chauffeur, helper, kitchen helper, busboy/girl, security guard, hairdresser, barber, store clerk, casino dealer, administrative worker, assistant bookkeeper, receptionist, telephonist, OPC, maintenance man, gardener.
Anyone who came after 2005 and applied for the first time during the recent BTA process for any of the jobs listed above cannot receive a work permit. The law prohibits the Minister of Labour from giving those permits. Therefore, the labour office acted against the law to accept money from people applying for the first time for any of the listed positions. Those who applied for those positions therefore can ask the labour office for a refund, based on the fact that they paid to process a work permit which the Minister of Labour is not allowed to grant. The minister of labour (at present Sarah Wescott-Williams) will have to cooperate with these individuals as her department has no legal basis for accepting money from first time applicants for the listed positions.
This also brings into question the issue of the renewal of the BTA permits. BTA category I permits are being renewed for three years, while category II is renewed for one year. To get a BTA category I and II permit one always need a work permit, but the law prohibits the Minister of Labour from granting an extension of your work permit after the third one. After the third BTA permit ( for which you will need three one year work permits), you will have to leave St. Maarten for one year before you can apply for a new work permit. The only exception to the three permit rule is for university graduates. This labour policy was put in place to protect the local labour market, so it is difficult to see why this law should be changed. This means that holders of BTA permits will have to leave St. Maarten after their third work permits expire. Any first time BTA applicant who obtains a work permit for any of the jobs on the excluded list shown above should be aware that those permits were issued in violation of the law, and that they cannot claim any rights based on these illegally issued work permits. In a state of law, even the Minister of Labour is bound by the law.
This apparent confusion comes about because the Minister of Justice who is responsible for residence permits has absolutely no say over work permits. Work permits are the sole responsibility of the Minister of Labour. The way they work together is that the Minister of Justice waits until the the Minister of Labour has granted a work permit, before he issues a residence permit. This is because the immigration law states that one must have a means of support in order to live on St. Maarten. Residence permits are therefore completely dependent on a work permit and if the Minister of Labour wants to protect the local labour market as is presently the case, then the Minister of Justice, as much as he would like to, cannot give someone a residence permit that does not have a work permit. If you are a person who has money or can prove that you don't need to work to support yourself you can also obtain a residence permit.
Some Pelican workers have complained about Mexican workers at Pelican. If any of them obtained a work permit for jobs on the excluded list after 2008 when the labour policy was published then that work permit is invalid. Pelican workers and their union should be vigilant against any first time permits for foreign workers on the excluded list as the law prohibits them from obtaining work permits.
