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Namibia High Court to pronounce on immigration rights of same-sex partners

By 19 January 2022September 19th, 2023Equality Rights, Equality Rights LGBTIQ+, Equality Rights News, Namibia3 min read
Close up hand over flag. Woman smiling happily to camera while holding a LGBTIQ

WHAT:          Judgment in Digashu and Others v Government of Namibia and Others;
Judgment in Seiler-Lilles and Another v Government of Namibia and Others

WHEN:          20 January 2022 at 9am

WHERE:       High Court of Namibia, Windhoek

On 20 May 2021, a full bench of the Namibia High Court heard arguments in two cases relating to the denial of immigration status to non-Namibian spouses. In both matters, the couples had entered valid legal partnerships outside of Namibia, but their relationships were not recognised for immigration purposes because they were in same-sex partnerships.

In August 2017, Daniel Digashu and Johan Potgieter approached the High Court of Namibia after the Ministry of Home Affairs and Immigration denied Digashu (a South African citizen) a work permit based on their same-sex marital status. Similarly, Namibian born Anette Seiler-Lilles and German-born Anita Seiler-Lilles approached the High Court of Namibia after Anita was denied permanent residence on the grounds of their marital status.

The couples submitted that the word “spouse” in the Immigration Control Act, ought to be interpreted to include same-sex spouses. In the alternative, should the Court not agree with that interpretation, the couples argued that section 2(1)(c) of the Immigration Control Act should be declared unconstitutional and that it should be rectified by reading into the section the words “including persons lawfully married in another country”.  The couples also submitted that they were denied the right to fair and reasonable administrative actions and that they were not properly heard before the decisions were made.

“In both cases, the couples had been together for more than a decade, they share their lives and constitute a family,” said Anna Mmolai-Chalmers, from the Southern Africa Litigation Centre. “The Applicants have fought for so long for the freedom to reside with and work in the country of their respective life-partners. We hope that the judgment will vindicate their rights to dignity and to a family.”

The cases raise important issues relating to the recognition of the rights of LGBTQI+ persons in Namibia. “I have been happily married for eleven years, and it would have been my preference to live in my country with my legal spouse,” said Ian Southey-Swartz, a Namibian citizen and Programme Manager of Open Society Foundations-Africa. “Instead, the current legal position has turned me, and many others in my position, into a second-class citizen and forced me into exile from the country I love.”

The applicants are represented by Shickerling Attorneys, Adv Heathcote SC and Adv Jacobs.

Southern Africa Litigation Centre (SALC) and Open Society Foundations supported the Applicants cases.