Chairperson of the Immigration Selection Board v Frank and Another 2001 NR 107 SC
The first respondent, a German national, visited Namibia during 1990 – and in 1991, she applied for the first time for a temporary work permit, which was regularly renewed thereafter.
In October 1995, she, for the first time, applied for a permanent resident permit – and in June 1996, she was informed by the Ministry of Home Affairs that her application was unsuccessful.
She then re-applied for a permanent residence permit in June 1997 and attached a letter by her legal representative in which they requested the appellant (the Immigration Board) to allow her to appear before it to answer any queries they may have or deal with any information, which may adversely affect the application or supplement further information if so required.
By 30 July 1997, the ministry again informed her that the application was unsuccessful.
No reasons were given, and the appellant stated it was not obliged in law to give reasons.
The first respondent stated she was in a lesbian relationship with the second respondent since 1990.
Because of certain statements by, inter alia¸ the President and other members of government, she was afraid her lesbian relations with the second respondent may have been the reason for the rejection of her application for permanent residence, which was denied by the appellant.
Overall, the first respondent claimed the appellant violated her right to equality and freedom from discrimination, guaranteed by Article 10; her right to privacy, guaranteed by Article 13(1) and protection of the family, guaranteed by Article 14 of the Constitution.
In conclusion, she asked the High court to review and set aside the decision of the appellant in terms of common law and Article 18 of the constitution.
The High court set aside the decision of the appellant and ordered it to grant to the first respondent a permanent residence permit. The parties agreed to directly refer the appeal to the Supreme Court.
The Supreme Court effectively ruled that same-sex relationships are not legal in Namibia, and that the right to family, entrenched in article 14 of the Constitution, also did not include same-sex relationships.
Minister of Home Affairs and Immigration v Prollius (SA76-2017) [2020] NASC (19 March 2020) – whether section 22(1) (d) of the Immigration Control Act, 7 of 1993 (the ICA) changed the common law definition of a domicile of choice.
The immigrant respondents entered Namibia on valid work permits, issued in terms of section 27 of the ICA and lawfully resided in the country for over two years.
The High Court found that they did so with the intent to reside in Namibia for an indefinite period of time.
The Immigration Selection Board sought to deport them from Namibia under the coercive machinery (arrest, detention and removal of prohibited immigrants) of Part VI of the ICA on the ground that their work permits had expired and they were unlawfully in the country.
The respondents challenged their intended removals on the basis that having severed their ties to their homelands (South Africa and Germany, respectively), having formed the intent to make Namibia their new home and making financial investments here, they had acquired a domicile in Namibia in terms of s 22(1)(d) of the ICA.
The High Court agreed and granted them declarations to that effect.
The Ministry appealed to the Supreme Court on the ground that the High Court misdirected itself in holding that S 22(1)(d) of the ICA had not changed the common-law definition of domicile of choice, which was acquired by proving: (a) lawful physical presence and (b) the intent to reside in Namibia indefinitely.
The respondents relied on S 22(2) of the ICA, which provides that domicile will not arise where the person relying thereon upon resided in Namibia only by virtue of a work permit.
On appeal, the Supreme Court held:
That S 22(1)(d), read with S 22(2), had indeed changed the common law – such that if an immigrant resides in Namibia ‘only’ on the strength of a work permit, they could not acquire domicile in Namibia.
That the adverb ‘only’ in S 22(2)(b) could not be interpreted in a way that extinguished the sovereign State’s prerogative to control immigrants’ entry into and residence in the country; that the conclusion reached by the High Court had that effect but also undermined the purpose and regulatory scheme of the ICA.
In the result, the High Court’s judgment and order were set aside, and the appeal was allowed.
Lühl v Minister of Home Affairs and Immigration (HC-MD-CIV-MOT-GEN-2021-00094) [2021] HAHCMD 168 (19 April 2021) – Application for emergency travel documents – applicant in a same-sex relationship
The applicant approached the court, seeking a mandatory interdict, compelling the minister to issue temporary travel documents to his children, who were in South Africa and born to him – and his partner through surrogacy.
The applicant wrote a letter to the minister’s legal practitioners, suggesting that the minister issues the emergency travel documents, pending a matter between the parties, which awaited judgment.
The minister declined the suggestion and proposed the parties await the judgment.
This prompted the applicant to launch an urgent application compelling the minister to issue the travel documents in what was a final mandatory interdict.
The High Court considered the matter and held that:
The applicant ought to have filed an application for the issuance of the travel documents before the minister in terms of the law, and then requested him to consider the application on an expedited basis if necessary.
The minister, in view of the manner the matter developed, did not make a decision on an application for issuance of travel documents that would be the basis of the court reviewing and setting the same aside.
To give in to the entreaties of the applicant in the present circumstances would amount to the court impermissibly violating the doctrine of separation of powers and, thus, arrogating upon itself powers that the law has decreed should rest in the minister.
Although the court appreciates its role as the upper guardian of all minors, it would be precipitous for it and would amount to judicial overreach for it to grant the order prayed for, lying as it does, within the constitutional mandate of the minister, the court being able to intervene on review.
In the result, the application to compel the minister of home affairs to grant emergency travel certificates to the minor children was dismissed, and the alternative application directing the ministry to allow the applicant to enter Namibia with the minor children in the care and custody of the applicant was refused.
Digashu v Government of the Republic of Namibia (HC-MD-CIV-MOT-REV-2017/00447) and Seiler-Lilles v Government of the Republic of Namibia (HC-MD-CIV-MOT-GEN-2018/00427) [2022] NAHCMD 11 (20 January 2022) – application for permanent residence – applicants in same-sex marriages.
The parties were married in South Africa and Germany, respectively, to Namibian citizens. Applications for a work permit and a permanent residence permit were made by the foreign parties to the Immigration Selection Board and refused.
The applicants, thereafter, applied to the High Court for an order that their civil marriages be recognised by the Board, and that they be recognised as spouses in terms of S 2(1)(c) of the Act.
In the event that the court finds that the word ‘spouse’ as used in the Act does not include same-sex spouses, the parties sought to have the section declared unconstitutional and rectified by reading into the sections the words ‘including persons lawfully married in another country and an order that the applicants (and the minor child in the Digashu application) are declared to be a family as envisaged in Article 14 of the Namibian Constitution.
In the Seiler-Lilles application, Ms Seiler-Lilles sought an order, setting aside the decision to refuse her application for a permanent residence permit.
The respondents’ opposition was based on the decision of the Supreme Court in the Chairperson of the Immigration Selection Board v Frank 2001 NR 107 above.
A full bench of the High Court considered the matter, and held that:
In terms of Article 81 of the Constitution, a Supreme Court decision must be followed by the High Court – even if that decision is wrong – unless the findings were obiter.
Should the High Court hold the view that the decision or findings, or even the reasoning of the Supreme Court was wrong, or outdated, and that it should be changed, it is at liberty to formulate those reasons and urge the court of higher authority to effect the change with the necessary courtesy and respect.
The interpretation by the Supreme Court of articles 8, 10 and 14 was narrow, outdated and couched in tabulated legalism.
Homosexual relationships are without doubt globally recognised – and increasingly, more countries have changed their laws to recognise one’s right not to be discriminated against on the basis of one’s sexual orientation. It is time to recognise that homosexuality is part and parcel of the fabric of our society, and that persons in homosexual relationships are worthy of being afforded the same rights as other citizens.
The Supreme Court’s interpretation of the international law was wrong. International conventions, ratified by Namibia, are binding on it. There is a general consensus that international law is now a crucial source for the protection of lesbian, gay, bisexual and transgender (LGBT) persons. The UN Human Rights Committee in 1994 recognised that the word ‘sex’ in Article 2 (1) of the ICCPR should be read to include ‘sexual orientation’. Accordingly, Article 10 should be interpreted to include sexual orientation, given that Article 10(2) specifically provides that no persons may be discriminated against on the grounds of social status, which would include sexual orientation.
In a functioning democracy, founded on a history such as our own, coming from a system of unreasonable and irrational discrimination, to obtain freedom and independence, and then to continue to irrationally and unjustifiably take away human rights of another segment of Namibian citizenry, simply because of their orientation – amounted to cherry-picking of human rights, and deciding whose rights are more “human”, and to be protected – more than others. This is not what our democracy was founded upon.
The Constitution must, because it is a moving, living, evolving document, stand evolution and the test of time, be broadly interpreted so as to avoid the austerities of tabulated legalism.
Section 26(3)(g) did not apply to any of the applicants in this matter, nor to the applicants in the Frank matter. S 26(3) (g) applies when one applies for permanent residence as a spouse of a permanent resident. The Immigration Control Act does not require a spouse of a Namibian citizen to apply for permanent residence because that spouse is automatically domiciled in Namibia by virtue of S 22 of the Immigration Act, and becomes a citizen in terms of Article 4. The other obvious factor was that the spouses, in these cases, were Namibian citizens and not permanent residents.
In the result, the review applications had to be determined:
With respect to the Digashu application, the decision to refuse his work permit was set aside, as conceded by the respondents, and referred back for reconsideration.
With regard to the Seiler-Lilles application, the prescribed portion of her application for permanent residence was in terms of S 26(3)(g) of the Immigration control Act, which was not applicable to her circumstances. As S 26(1)(a) provided that an application for permanent residence should be made on a prescribed form, there was no proper application to consider in terms of S 26(3)(d) and, therefore, the relief could not be granted.
*Fedden Mainga Mukwata writes in his personal capacity as an admitted Legal Practitioner and founder of FASZ Legal Consultancy as part of his efforts to promote access to law and justice. He may be reached at fedden@consultfasz.com