‘Children no ticket to residence rights’

THE High Court has handed down a ruling that may prove fatal to the hopes of non-Namibians who may want to rely on the fact that they have children with Namibian citizenship in order to be allowed to stay in Namibia themselves.

The mere fact that a non-Namibian has a child with Namibian citizenship is not enough to entitle such a person to residence rights in Namibia, was part of the message that came from the High Court in a decision of Judge Petrus Damaseb last Thursday. His decision may also have serious implications for the rights of Namibian children with a non-Namibian parent, since it may mean that such a child would not be able to claim that it has a right to have its non-citizen parent stay with it in Namibia.Judge Damaseb handed down his judgement in a case in which a Zambian national, Moses Muyatwa Mulopo, had asked the High Court to issue an interdict against the Minister of Home Affairs to prevent his deportation from Namibia.Mulopo has been living in Namibia, where he has been working for the New Apostolic Church of Namibia, since 1996.He had been granted work permits until his latest application for a renewal of the permit was refused in March this year.In mid-May this was followed by a notice from the Ministry of Home Affairs that he had to leave Namibia within 21 days.He received another, similar notice on October 1.According to Mulopo’s argument to the High Court, he is entitled to permanent residence in Namibia, because he has been living in the country for over eight years and he has minor children who hold Namibian citizenship and are entitled to his care.Judge Damaseb did not accept that argument, though.The rights of a child who is a citizen of the country are not absolute, he held.He referred to a Zimbabwe Supreme Court case that he regarded as similar to Mulopo’s to support his position.The Judge noted that there the court had ruled that the rights of “a citizen child” were not absolute, but were subject to the qualification of parental authority.Simply put, a parent with custody over such a child had the right and duty to regulate the life of the child, including the right to choose its residence, the Zimbabwe Supreme Court had decided in an approach that Namibia’s High Court, through Judge Damaseb, has now adopted.From the part of the Zimbabwean judgement quoted by Judge Damaseb it would appear that the right of a non-citizen to live in Zimbabwe as a member of a family unit had been one of the factors considered by that court.It nevertheless decided that a minor child in the custody of a parent had no choice in deciding whether to live in one country or another, with the result that a decision to deport a non-citizen parent with custody over a child that does have that country’s citizenship would not put their family unit under the threat of being split, since the child would be able to accompany the parent.Applying that reasoning, Judge Damaseb ruled that Mulopo had failed to establish a prima facie right (a right that would be valid on the face of it) to residence in Namibia merely because he is a parent of a child with Namibian citizenship.Mulopo’s case was dealt an additional two blows.The Judge ruled that he should have cited the Immigration Selection Board as a party to the case, and furthermore that his application could not be regarded as an urgent one because he had waited too long after receiving the notice before he took his case to court.His decision may also have serious implications for the rights of Namibian children with a non-Namibian parent, since it may mean that such a child would not be able to claim that it has a right to have its non-citizen parent stay with it in Namibia.Judge Damaseb handed down his judgement in a case in which a Zambian national, Moses Muyatwa Mulopo, had asked the High Court to issue an interdict against the Minister of Home Affairs to prevent his deportation from Namibia.Mulopo has been living in Namibia, where he has been working for the New Apostolic Church of Namibia, since 1996.He had been granted work permits until his latest application for a renewal of the permit was refused in March this year.In mid-May this was followed by a notice from the Ministry of Home Affairs that he had to leave Namibia within 21 days.He received another, similar notice on October 1.According to Mulopo’s argument to the High Court, he is entitled to permanent residence in Namibia, because he has been living in the country for over eight years and he has minor children who hold Namibian citizenship and are entitled to his care.Judge Damaseb did not accept that argument, though.The rights of a child who is a citizen of the country are not absolute, he held.He referred to a Zimbabwe Supreme Court case that he regarded as similar to Mulopo’s to support his position.The Judge noted that there the court had ruled that the rights of “a citizen child” were not absolute, but were subject to the qualification of parental authority.Simply put, a parent with custody over such a child had the right and duty to regulate the life of the child, including the right to choose its residence, the Zimbabwe Supreme Court had decided in an approach that Namibia’s High Court, through Judge Damaseb, has now adopted.From the part of the Zimbabwean judgement quoted by Judge Damaseb it would appear that the right of a non-citizen to live in Zimbabwe as a member of a family unit had been one of the factors considered by that court.It nevertheless decided that a minor child in the custody of a parent had no choice in deciding whether to live in one country or another, with the result that a decision to deport a non-citizen parent with custody over a child that does have that country’s citizenship would not put their family unit under the threat of being split, since the child would be able to accompany the parent.Applying that reasoning, Judge Damaseb ruled that Mulopo had failed to establish a prima facie right (a right that would be valid on the face of it) to residence in Namibia merely because he is a parent of a child with Namibian citizenship.Mulopo’s case was dealt an additional two blows.The Judge ruled that he should have cited the Immigration Selection Board as a party to the case, and furthermore that his application could not be regarded as an urgent one because he had waited too long after receiving the notice before he took his case to court.