WILLEMSTAD – The Joint Court of Justice has ruled that the mere fact of entering Curaçao illegally does not provide a lawful basis for placing someone in immigration detention. The decision upholds an earlier ruling by the Court of First Instance, which had declared the Justice Minister’s intervention in such cases unfounded.
According to the Court, there is no clear legal provision allowing for the automatic detention of people who arrive on the island by boat without valid documents.
The Case
The ruling concerned two Venezuelan nationals who entered Curaçao on December 27, 2023, by lancha (small boat) and were immediately detained. A month later, they applied for protection under the European Convention on Human Rights. The Justice Minister rejected the request and maintained their detention, even after an appeal was filed.
Legal Core of the Dispute
The key legal question was whether illegal entry alone can justify detention. The minister argued that it could, citing Article 19 of the National Ordinance on Admission and Expulsion (Ltu).
The Court disagreed, stating that while Article 19 provides grounds for removal from the island, it does not authorize immigration detention. Referring to the principle of legal certainty, the Court emphasized that depriving someone of liberty requires a clear, accessible, and foreseeable legal basis.
Minister Partly Vindicated
The Court did, however, support the minister on other points. It found that the initial detention order was sufficiently justified, contrary to the earlier opinion of the lower court. The Court agreed that the individuals posed a potential public order risk, given that they lacked identification, had no family ties in Curaçao, and had expressed their intent to work without a residence permit.
Detention as a Last Resort
The Court reiterated that detention must remain an ultimum remedium (last resort). The minister is obliged to first consider less restrictive alternatives, unless there is a demonstrable risk of absconding or disturbance of public order.
Although such an assessment was not explicitly made during the initial hearing, the Court found no illegality in this case. For one detainee—a woman with asthma—alternatives were considered, but the minister decided detention was still justified given the medical care available in custody.
Unlawful Delay
In the end, the Court ruled that the continuation of detention beyond June 27, 2024, was unlawful, as the minister took more than six months to process the appeal against the rejection of the protection request. With no explanation provided for the delay, the minister failed to meet his obligation to act expeditiously in cases involving detained persons.
The ruling clarifies the limits of Curaçao’s immigration enforcement, stressing that illegal entry alone cannot justify detention and that authorities must act both lawfully and promptly in handling such cases.
