Immigration under scrutiny over domicile case

13 October 2021 | Justice

JANA-MARI SMITH



WINDHOEK

Immigration authorities and their handling of a domicile case were subjected to intense scrutiny by three of Namibia’s top judges at a Supreme Court appeal hearing on Monday.

Chief justice Peter Shivute, deputy chief justice Petrus Damaseb and Supreme Court judge Dave Smuts grilled the ministry of home affairs’ legal team about its domicile procedures and the treatment of Guillermo Delgado, a Mexican citizen, who was barred from returning to Namibia in January 2020 without forewarning and due process.

Smuts described the treatment of Delgado as “exceptionally appalling” and said the circumstances surrounding his experiences with immigration officials were “reminiscent of the previous order of this country in the way in which bureaucracy dealt with dissidents during apartheid years”.

Shivute described the actions against Delgado as “harsh” and criticised the fact that he had not been given a “chance to be heard” before he was summarily expelled.

He stressed that at the time he was barred entry, Delgado was legally living in Namibia.

Out

Delgado’s abrupt entry ban by border officials came after he had applied for an extension of a Section 38 certificate, which was granted to him in 2018 after an application for domicile, and is valid for one year.

Delgado’s legal team argued that domicile had been granted, and the certificate was issued subsequently.

When he was told in January 2020 that an application to renew or extend the certificate had been rejected on the grounds of his marriage to Namibian Phillip Lühl, he had to turn to the High Court to be given a chance to return to his family.

In February, High Court Judge Thomas Masuku dismissed Delgado’s application for the court to set aside the home affairs decision not to renew the Section 38 certificate.

Fair process

During arguments on Monday, lawyer Uno Katjipuka-Sibolile argued that Delgado had applied for and been granted domicile, and the certificate had been issued as a result.

She said the home affairs ministry has developed a common practice that the certificates in question are issued to persons domiciled in Namibia, adding that the certificate in itself, if rejected, cannot change the domicile status, particularly without affording the person due and fair process.

Damaseb said “government appears to have granted him [Delgado] domicile. And, if they take that away, he has a right to make presentations. That is the essence of the problem in this case”.

He added that government’s practice to issue certificates to domiciled persons cannot be made on an ad hoc basis.

“We cannot give government carte blanche to decide when it's domicile and when not. The public needs certainty.”

Rights for all

Katjipuka-Sibolile argued that any person married to a Namibian, by virtue of that marriage, acquires domicile.

She noted that while the home affairs ministry does not recognise same-sex marriages, the rights afforded to Namibians in the constitution cannot only be applied to heterosexual persons.

She further argued that the constitution cannot be interpreted based on the norms and traditions of yesteryear.

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