- February 25, 2022
- |Concise Law Reports (CLR), Legislation
LEGISLATION – IMMIGRATION CONTROL ACT 1993 – ACQUISITION OF DOMICILE – APPLICANT IN SAME-SEX MARRIAGE WITH A NAMIBIAN CITIZEN
In 2011 the applicant relocated to Namibia where he had been a resident on the basis of work permits that have been subject to renewal, the last of which was set to expire on 31 December 2019. It was however not renewed. Aggrieved by this position the applicant sought an order declaring that he is domiciled within the court’s jurisdiction and an order reviewing and setting aside the respondents’ decision not to renew his s 38 certificate (in terms of the Immigration Control Act) as being in contravention of Article 18 of the Constitution. In support of his application, the applicant submitted that he has been in a same-sex marriage with a Namibian citizen for more than ten years and they have a son born of their union through surrogacy; that they have a universal partnership that ought to work in favor of him being declared domiciled in the jurisdiction. It was also the applicant’s contention that the court was not bound by the Supreme Court judgment in Prollius for the reason that the said judgment was made per incuriam.
MASUKU J determined the application of the papers and held that:
- The applicant had unilaterally formed a settled intention to make Namibia his permanent home, which is not binding on the State on the authority of Prollius.
- The court was, in terms of Art 81 of the Constitution bound by the Supreme Court matter of Prollius where the court concluded that an immigrant who lands on Namibian shores and resides there only on the strength of a provisional permit, an employment permit or student’s permit cannot lay claim to domicile as defined in the Act.
- The applicant’s contention that the Supreme Court judgment was made per incuriam is incorrect as the present matter is on all fours with the reasoning of the Supreme Court and is as such, binding.
- The judgments made per incuriam are those where the court makes a judgment by mistake or carelessness, therefore not purposely or intentionally. It also applies where the court makes a judgment unaware of the existence of applicable law that if it had been aware of, would influence its decision otherwise.
- The certificate issued in terms of section 38 of the Act cannot in law confer domicile on the applicant. It merely assists persons who are lawfully resident in and who are intent on leaving Namibia temporarily but have doubt that they will be admitted into Namibia on return.
- The renewal of the section 38 certificate previously held by the applicant is not expressly stated by the Act.
As result, the application for review and set aside the decision was dismissed and the declaratory order for domicile was refused.
Castaneda v Ministry of Home Affairs and Immigration NAHCMD 25 February 2022