Namibia: Judgment Spells Disaster for Immigrants

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24 March 2020

A judgment handed down last week by three justices of Namibia's highest court could spell disaster for people who entered Namibia on a work visa and decided to settle in the country permanently.

Deputy Chief Justice Petrus Damaseb together with Judge of Appeal Sylvester Mainga and Acting Judge of Appeal Bes Nkabinde set aside a High Court judgment that allowed a couple from Germany and a South African citizen who resided for over two years in Namibia on the strengths of valid work permits to settle in Namibia.

Ralph and Susanne Holtmann and Coenraad Prollius (the respondents) entered Namibia on valid work permits and lawfully resided in the country for over two years, however when they tried to obtain permanent residence the Immigration Selection Board sought to deport them under the prohibited immigrant's law on the basis their work permits expired and were unlawfully in the country.

Deciding to fight back, they then took the matter to the High Court on the basis that they have severed their ties to their homelands having formed an intent to make Namibia their new home and made financial investments here hence they acquired domicile in Namibia in terms of section 22(1)(d) of the Immigration Control Act (ICA) which states a person acquired lawful physical presence and an intention to reside in Namibia indefinitely.

The High Court agreed and granted then declaration to that effect, but the Immigration Selection Board took the matter to the Supreme Court on the ground that the High Court misdirected itself in holding that section 22(1)(d) was relevant.

In fact, they argued, section 22(2) which states that domicile will not arise where the person relying on it resided in Namibia only by virtue of a work permit.

The Supreme Court upheld the argument of the Immigration Selection Committee and found that section 22(2) indeed changed the landscape to the extent that an immigrant residing in Namibia 'only' on the strength of a work permit cannot acquire domicile in Namibia.

The Supreme Court further held that the adverb 'only' in section 22(2)(b) could not be interpreted in a way that extinguished the sovereign state's prerogative to control immigrant's entry into and residence in the country and that the conclusion reached by the High Court had that effect and also undermined the purpose and regulatory scheme of the ICA.

Judge Damaseb who wrote the unanimous judgment said that under the common law, the requirement of 'lawful presence' serves to disqualify those who seek to claim domicile, but are in the country unlawfully, such as persons who has overstayed in the country after the expiry of a lawfully granted permit and is therefore liable for deportation upon arrest.

He said that effect of the provisions is that an immigrant who lands on our shores on the strength of a provisional permit such as an employment permit or a student's permit cannot lay claim to domicile as defined under the ICA.

The judges ordered the Holtmann's and Prollius to pay the costs of the suit on the scale of one instructing and two instructed counsel.

The Immigration Selection Committee was represented by Advocate Vincent Maleka assisted by Sisa Namandje and instructed by the government attorney and the Holtmann's and Prollius by Advocate Raymond Heathcote assisted by Advocate CE van der Westhuizen and instructed by Etzold-Duvenhage.

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