Namibia: What Is Ordinary Residence?

Source: The Namibian (Windhoek, 12/08/2016

DURING the recent discussions around the Namibian Citizenship
Amendment Bill, it became clear that there is some confusion about the
concept of ordinary residence. Even though the Namibian Citizenship
Amendment Bill has now been withdrawn, there is sure to be future
debate about what the rules on citizenship should be.


Article 4 (1) of the Namibian Constitution provides the general rule
that a child born in Namibia to non-Namibian citizens will be a
Namibian citizen by birth if the child's father or mother is
"ordinarily resident" in Namibia at the time of the birth. The
Ministry of Home Affairs and Immigration understood that this rule
applied only if the parent had permanent residence, but the Supreme
Court found this approach incorrect.


Firstly, ordinary residence comes into play only when a child is born
in Namibia to parents who are both non-Namibian. If even one parent is
Namibian, the child is a Namibian by birth if born inside Namibia, and
a Namibian by descent if born elsewhere. But, if both parents are
non-Namibians and the child is born inside Namibia, then the child is
Namibian by birth if at least one parent is "ordinarily resident" in
Namibia at the time.


Secondly, the court judgement says that the constitutional reference
to ordinary residence does not apply only to persons who have
permanent residence permits. The court did not say that anyone present
in Namibia on any temporary permit is "ordinarily resident".


On the contrary, the court explained: "Key considerations will
include whether the person concerned normally lives in Namibia, and
is, therefore, not merely visiting Namibia, and whether the person has
no immediate intention of permanent departure."


To start with a famous situation, Angelina Jolie and Brad Pitt were
clearly not "ordinarily resident" in Namibia; they came here for the
birth of their child, with a clear intention to leave shortly
thereafter. Similarly, an Angolan woman who crosses the border only to
give birth in Namibia is not "ordinarily resident". Nor is a tourist
who gives birth unexpectedly while on holiday.


Suppose an employee from a South African firm is transferred to
Namibia for a one-year period on a one-year work permit. Imagine that
this employee retains a home in South Africa which she rents out for
the year, and has every intention of returning to that home in South
Africa when the year is up. That employee is not "ordinarily resident"
in Namibia.


A student on a student visa who comes to Namibia for a specific course
of study with no intention to remain is not "ordinarily resident" in
Namibia.


The court stated: "The intention to make Namibia one's habitual home
must be established by facts, which are capable of objective proof.


Evidence will thus need to be led to show that the person is
indeed normally resident in Namibia. Such evidence will include the
person's place of residence, the period of residence in Namibia, as
well as his or her livelihood, and other relevant factors."


The De Wilde family, who was the subject of the court case, had been
living in Namibia for an uninterrupted period of over three years at
the time of the birth of the child whose citizenship was eventually
contested. They came to Namibia to invest in a business here, with a
clearly-stated intention to make Namibia their new home.


They sold all their property and assets in their home country,
registered two close corporations in Namibia and bought a residential
property in Namibia almost a year before the child's birth. They were
here on work permits, which had been renewed. Now, seven years later,
they continue to live in Namibia, they have increased their
investments here, and their corporations employ 60 people. It is clear
that this family has made Namibia their home.


The court acknowledged that someone who is present on a temporary
permit may have to leave Namibia if the permit is not renewed - but it
also noted that a refusal to renew an employment permit must comply
with Article 18 of the Constitution on administrative justice, meaning
that a refusal to renew such a permit must be for a valid and lawful
reason, and must not be unfair or unreasonable. The upshot is that it
is possible to make a place your home, with no intention to leave,
even without a permanent guarantee of being allowed to remain.


Consider the child's point of view. Regardless of the type of permit
that the parent possesses, a child of a parent who has made Namibia
their habitual home is unlikely to have a close connection with any
other country. A child in such circumstances will normally live here,
go to school here, make friends here and "feel Namibian".


There may be hard cases. In our increasingly global times, people are
more mobile than they were in the past. Some people may keep a foot in
more than one country.


This is why the court said that each case must be considered on its
own facts. No simple formula will work. However, other countries
successfully use the concept of "ordinary residence" for a variety of
purposes, and guidelines can be established on the basis of their
experience.


The court noted in this regard that official convenience cannot be
prioritised over the interests of a child, and that the Constitution
"must be given a generous and purposive interpretation that advances
the interests of a child born in Namibia rather than one that limits
such interests".


There may be a proposal to amend the Constitution on this point. Any
such proposal should be considered with a clear understanding of the
current situation.


- Dianne Hubbard, Legal Assistance Centre