THE Supreme Court has overturned a High Court judgement which set a new precedent for Namibian courts' approach to the issue of how foreigners can acquire residence rights in Namibia.
Non-Namibians living in the country on the basis of an employment permit or visitor's permit cannot obtain domicile in Namibia simply through their intention to make the country their permanent home, the Supreme Court decided in a judgement handed down on Thursday last week.
In the court's judgement, deputy chief justice Petrus Damaseb reasoned that the interpretation given to a section of the Immigration Control Act in a judgement delivered in the High Court in November 2017 was wrong, as it removed the state's discretion to choose the conditions under which immigrants would be allowed to settle in Namibia.
By interpreting the Immigration Control Act to mean that a person with a proven intention to make Namibia their permanent home would acquire domicile in the country after living in Namibia on the basis of an employment or visitor's permit for two years, High Court judge Shafimana Ueitele "extinguished the sovereign power of the Namibian state to regulate immigration policy and to protect the vital national interest" through the machinery of the law, judge Damaseb stated.
The deputy chief justice, with appeal judge Sylvester Mainga and acting judge of appeal Bess Nkabinde agreeing, upheld an appeal by the minister of home affairs and immigration against judge Ueitele's judgement, and ordered the respondents in the case - South African national Coenraad Prollius and a German couple, Ralph and Susanne Holtmann - to pay the minister's legal costs in the matter.
Judge Ueitele in his judgement declared that Prollius and the Holtmanns were domiciled in Namibia. As a result of the outcome of the minister's appeal, that order has now also been reversed.
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.
Prollius, who has been living in Namibia since 2008, and the Holtmanns, who have been living in the country since 2007, all stated that they have bought fixed property in Namibia and that it was their intention to make the country their permanent home.
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 part of the two years of residency needed to acquire domicile.
Judge Ueitele found that if someone living in Namibia on the basis of a permit also had an intention to make the country their permanent home, they would not be resident in the country only on the basis of the permit, and would be able to obtain domicile after two years.
The proposition that a subjective choice an immigrant makes would bind the state in a way that infringes its sovereign choice concerning which immigrants it wants to admit, has no basis under international law or Namibia's Constitution, judge Damaseb said.
He also stated that in the High Court's judgement the generally accepted principle that a state has the unfettered right and discretion to choose which foreign citizens may enter the country was overlooked.
The interpretation of the law in the High Court's judgement "leaves no freedom of action on the part of the sovereign state of Namibia", judge Damaseb said. "It removes from the state the internationally recognised discretion to choose the conditions under which immigrants settle in the country."
The minister was represented by senior counsel Vincent Maleka, assisted by Sisa Namandje, when the appeal was heard in October last year. Senior counsel Raymond Heathcote, assisted by Charmaine van der Westhuizen, represented Prollius and the Holtmanns.