Work permit age-requirement for foreigners does not hold up

POSTED: 02/15/12 1:35 PM

Court grants permit to 24-year old South-African

St. Maarten – The national ordinance on foreign labor has come under fire after the Court in First Instance overruled Labor Minister De Weever’s refusal to grant a work permit to a South-African captain who works for Eagle Tours. The refusal was based on the age requirement in the ordinance. The court based its decision on the twelfth protocol of the European Human Rights Treaty that contains a general ban on discrimination.

The ordinance on foreign labor stipulates that foreigners who do not have an HBO-level education and who have not reached the age of 25 (or who are older than 57) do not qualify for a work permit. The South-African had been granted an earlier work permit and asked for a renewal in August 2010.

In November this request was denied based on two arguments: that local workers were available for the job related to the permit, and that the applicant was younger than 25. The labor department motivated its decision among others by stating that the applicant had been unable to prove she had an HBO-level education.

In February 2011, the South African captain filed an appeal; in April, the labor department rejected the appeal. In May, the applicant went to court, and in November of last year the ruling came down.

Judge mr. Ruud van Veen referred in his considerations to the article in the ordinance on foreign labor about age requirements and education-levels. Based on that article the ruling stated that “the defendant must reject the request for a work permit if the foreigner has not reached the age of 25 at the moment of the request.”

The court found support for this position in a number of rulings from the administrative court in 2010 and 2011 that all stated that the age requirements in the ordinance do not violate article 14 of the European Human Rights Treaty, and that the treaty does not entail the right to work for foreigners.

But in its ruling of November 21, the court changed course dramatically.

“For these rulings the court has apparently overlooked that in 2005 the twelfth protocol of the European Human rights treaty became effective. It contains a general ban on discrimination. Benefiting from each right established in the law must be assured without any discrimination on any ground, like sex, race, color, language, religion, political or other opinion, national or social descent, belonging to a national minority, wealth, birth or other status,” this article reads. The second paragraph states that “no national authority is allowed to discriminate anyone on, especially, one of the grounds mentioned in the first paragraph.”

The court also cited the anti-discrimination article from the European Human Rights Treaty, from the International Treaty on Civil and Political Rights, and from the constitution of St. Maarten.

That the ordinance on foreign labor makes a distinction based on age is according to the court permissible, “if there are reasonable and objective grounds.”

The ordinance motivates the age requirement as follows: “It is known that in St. Maarten the population group between the ages of 16 and 24 (….) is identified with social problems of several kinds. Admitting more people from this vulnerable age group is considered to be irresponsible.”

The court ruled that this brief elucidation warrants in itself further explanation, but that it did not see reason to reopen the investigation in the case.

This is because the court established that the labor department granted extensions for the work permit in the past, when the age requirement was already in place. “It cannot be so that the defendant decided from year to year whether or not he is going to apply an imperative condition. The plaintiff was entitled to trust that she would be granted a new permit.”

The court declared the appeal against the refusal to grant the permit justified and ruled that the South-African captain will get a work permit.

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