LEGISLATION – IMMIGRATION CONTROL ACT – WHETHER IMMIGRANT CAN ACQUIRE DOMICILE OF CHOICE BY VIRTUE OF DECISION TO SETTLE AND INVEST IN THE COUNTRY – whether section 22(1) (d) of the Immigration Control Act changed the common law definition of domicile of choice?

LEGISLATION – IMMIGRATION CONTROL ACT – WHETHER IMMIGRANT CAN ACQUIRE DOMICILE OF CHOICE BY VIRTUE OF DECISION TO SETTLE AND INVEST IN THE COUNTRY – whether section 22(1) (d) of the Immigration Control Act changed the common law definition of domicile of choice?

The immigrant respondents entered Namibia on valid work permits issued in terms of s 27 of the Immigration Control Act 7 of 1993 (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 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 appellants 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 resided in Namibia ‘only by virtue of a work permit.

On appeal to the Supreme Court:

1. Held that section 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.
2. 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 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, with costs.

Minister of Home Affairs and Immigration v Prollius NASC (19 March 2020)