The main issue on appeal was whether the first respondent had been ordinarily resident in Namibia at the time when he applied for citizenship as required by article 4(3) of the Constitution. The marriage had been in good faith.
The Supreme Court held that the term 'ordinarily resident' meant lawfully resident. In the context of the Namibian immigration law, unlawful residence in Namibia could not be said to be conformable to order, nor was it regular.
The respondent was not an ordinary resident. At the time when he lodged the application for Namibian citizenship by reason of his marriage to a Namibia citizen, he was not eligible for registration as such. The first applicant was, and is, not entitled as a matter of law to be registered as a citizen of Namibia.
Illegal entry; citizenship; unlawful residence; eligibility for citizenship; acquiring citizenship by marriage; residence; ordinary residence; stepping stone; judicial review; appeal; constitutional law
The first respondent entered Namibia illegally in 1989. He had subsequently fraudulently obtained a Namibian birth certificate and a Namibian passport. In 1994 he married the second respondent, a Namibian citizen. His application in 2003 for Namibian citizenship was refused. An application to review this decision was successful in the court a quo. The Minister of Home Affairs appealed against this decision.
The appeal was allowed, and the decision of the court a quo was reversed. The first applicant was, and is, not entitled as a matter of law to be registered as a citizen of Namibia.
The first applicant was not, at the material time, eligible for Namibian citizenship. The first respondent had not been ordinarily resident in Namibia at the time when he applied for citizenship as required by article 4(3) of the Constitution.