Answer to a question from a reader

How can I formalise my marriage as an asylum seeker in South Africa?

The short answer

You might need legal assistance

The whole question

I’ve lived in South Africa for six years and I've had the same asylum seeker's issue for several years. When I arrived, I applied for a study permit and paid half of my tuition fee before the start of the semester. I did this before submitting my application to Home Affairs for an asylum seekers permit. After six months, I was informed that my application was unsuccessful, stating that I had insufficient funds to study. Since Home Affairs couldn’t give me a study permit, I was unable to complete my studies. That’s when I applied for an asylum seekers permit, which I’ve been renewing since.  

I also got married in 2017 and since then, my wife and I have been trying to formalise our marriage, but it’s been from pillar to post. The refugee centre told us to go to Home Affairs, but every Home Affairs office I’ve visited has been unable to help us. They informed us that if we plan on getting anything, such as property, it would be unsuccessful because we are not legally married. When our son was born, the hospital refused to put my name on his birth certificate because I have an asylum seekers permit. I don't want my children to experience such difficulties in the future and I want my family to live a normal life. What can I do to formalise my marriage?

The long answer

Many asylum seekers have faced the same difficulties in formalising their marriages.

This is the story behind it:

In 2017 Home Affairs officials said that according to a recent circular they were not allowed to marry asylum seekers whose applications for asylum had not yet been finalised.

A couple who had been waiting for five years to formalise their marriage then took Home Affairs to court. The Eastern Cape Division High Court found that the Home Affairs circular undermined the fundamental right to equality and that it was therefore unconstitutional. The court ordered that the couple should be allowed to marry.

But Home Affairs appealed the judgement and took it to the Supreme Court of Appeal.

In October 2019 the Supreme Court said that the section of the circular that read “refugees whose asylum application is pending cannot contemplate marriage” violated asylum seekers’ constitutional rights to equality, and that the fundamental constitutional right of equality also included the right to dignity. The court found that Home Affairs had failed to respect the rights it was meant to uphold and that it had failed to respect the law. It said that the way Home Affairs had behaved was “inexcusable and deserving of censure’.

Home Affairs was ordered to allow asylum seekers to marry.     

But even in January 2020, four months afterwards, Home Affairs officials were still refusing to marry asylum seekers. When asked why Home Affairs was defying the court order, the spokesperson David Hlabane said that the fact that they had not yet implemented the court order didn’t mean they were defying it, but that they were still “getting the staff ready” to ensure full compliance with the court order. He could not say when the staff would be ready.

So it is likely that the staff at Home Affairs have not yet been instructed to comply with the court order to marry asylum seekers, and that is why they are still turning you away. 

For this reason it might be best if you asked for advice and assistance from the following organisations who can also advise you about your children’s rights:

Legal Resources Centre
Email: info@lrc.org.za
Tel: Cape Town: 021 481 3000
Tel: Johannesburg: 011 836 9831  

Lawyers for Human Rights
Tel: Cape Town: 021 424 8561
Johannesburg Office and law clinic
Tel: 011 339 1960

Scalabrini Centre (Cape Town)
Email: info@scalabrini.org.za
Tel: 021 465 6433

Answered on May 21, 2020, 9:11 a.m.

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