4 December 2017

Namibia: Home Affairs 'Disgraceful' Over Couple's Arrest

A HIGH Court judge has sharply criticised the ministry of home affairs over its treatment of a German couple whose application for permanent residence went unanswered for more than two years, before the couple was arrested and charged with being illegally in Namibia.

Immigration officials' failure to respond to the couple's application for permanent residence and eight letters of enquiry about the progress of their application, and then the arrest of the couple last year under the Immigration

Control Act, was "disgraceful and should not be associated with a professional public service in a constitutional state", judge Shafimana Ueitele said in a judgement delivered in the Windhoek High Court last week.

"Accountability and responsiveness are founding values of our democracy. All organs of state must provide effective and accountable government," Ueitele stated.

The lack of a response to the application of German nationals Ralph and Susanne Holtmann, followed by their arrest on a charge of being illegally in Namibia, "is irresponsible behaviour that borders on incompetence and lack of accountability", judge Ueitele commented. He added: "The manner in which the Holtmanns were treated can just embarrass Namibians, and not make us proud."

The ministry's permanent secretary should take steps to ensure that officials in the ministry perform their functions diligently and without delay, and live up to the values and vision that the ministry has set for itself, he also stated.

Judge Ueitele made the remarks in a judgement in which he dealt with two applications by foreigners who faced the threat of being forced to leave Namibia after having lived in the country for years on the basis of work permits.

The judgement ended in defeat for the minister of home affairs and immigration, the Immigration Selection Board, and the Immigration Tribunal, with judge Ueitele declaring that the Holtmanns and a South African-born hairdresser, Coenraad Prollius, were domiciled in Namibia, and that the minister and other respondents had to pay the legal costs of the Holtmanns and Prollius.

Domicile status is of crucial importance for foreign residents of the country, as it gives them the right to stay in Namibia without needing permits, such as employment or permanent residence permits, that would otherwise allow them to live in the country.

Judge Ueitele's decision on the situations in which the Holtmanns and Prollius found themselves sets a new precedent in terms of Namibian courts' approach to the issue of how foreigners can acquire domicile in Namibia.

Prollius informed the court that he lived in Namibia as a child from 1982 to 1989, when he moved to South Africa with his parents. In 2008, he returned to Namibia, and started to work on the basis of a work permit. The permit was renewed a number of times until 2015, but in April 2016, the ministry rejected another work permit application by Prollius.

By then, Prollius had bought fixed property in Namibia, and started his own business, and according to him, he had pulled up the roots he had in South Africa and intended to make Namibia his permanent home.

He lodged an appeal against the refusal of his application, but it was dismissed in August last year, and he was then given seven days to leave the country. Prollius then obtained an urgent court interdict to stop the ministry from kicking him out of Namibia.

The Holtmanns came to Namibia in early 2007, started a business at Swakopmund, where they also bought fixed properties, and stayed in the country on the basis of successive work permits until they applied for permanent residence in February 2014. They received no replies from the ministry on their application and eight follow-up letters, from then until September last year - when they were suddenly arrested and charged with being illegally in Namibia after the expiry of their work permits.

Like Prollius, the Holtmanns also stated that it was their intention to make Namibia their permanent home.

Judge Ueitele noted that in terms of the Immigration Control Act, someone who is lawfully resident in Namibia for a continuous period of more than two years would have domicile in Namibia. The law also states that a period during which a person is living in Namibia only on the basis of a permit, like an employment or student's or visitor's permit, would not be regarded as a period of residence in the country - in other words, it would not count as part of the two years of residency needed to acquire domicile.

Interpreting that part of the law, judge Ueitele reasoned that parliament did not intend that the law should change the common-law principle of domicile, consisting of the physical presence of someone in a country and their intention to remain indefinitely in that country.

The use of the word "only" in the relevant part of the law meant that someone lawfully resident in Namibia on the basis of something more than merely a permit allowing their presence - in this case a proven intention to make Namibia their permanent home - would acquire domicile after two years, the judge reasoned.

Raymond Heathcote, instructed by law firm Etzold-Duvenhage, represented the Holtmanns and Prollius when the cases were heard in June and October. The immigration authorities' arguments were presented by Gerson Hinda and Sisa Namandje, instructed by the government attorney.

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