Are you an asylum seeker married under South African customary law? You may qualify for a spousal visa

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Some asylum seekers married under customary law may apply for a spousal visa. Photo: Getty Images.
Some asylum seekers married under customary law may apply for a spousal visa. Photo: Getty Images.

Bianca* is a mother of four who came to South Africa from the Democratic Republic of Congo (DRC) in 2007 as an asylum seeker.

She ran from her home in the DRC when her house was set on fire. She lost her mother and a daughter that day, but managed to save two of her children, although her eldest child suffered severe skin damage.

When she arrived here in South Africa, she went to the Department of Home Affairs in Pretoria to apply for refugee status three times but left empty-handed each time. Trying her luck at Home Affairs in Johannesburg, she was finally seen by an interpreter who attended to her.

The interpreter saw her daughter's burns and told her she qualified for refugee status, but told her to pay R2 500 to the officer who had her file. She told the interpreter she did not have the money, and he then gave her asylum seeker papers instead of refugee status.

Asylum status is a form of protection which allows an individual to remain in the country, instead of being deported to a country where he or she could face persecution or harm.

In 2021, her asylum status expired and she renewed it online, only to find out that she had been fraudulently recorded as married at the department. Her supposed spouse's name was not noted in the document.

By this point, Bianca had married a South African man under customary law, and had another child with him. She has been trying to register the marriage at Home Affairs, but was told this was prohibited, since asylum seekers were not permitted to get married.

Read: Forced separation of refugee children from their parents can have devastating long term consequences

News24 reached out to Natasha Botha of Smiedt and Associates Attorneys, an expert in matters related to immigration laws, for advice. 

Botha said: "There are a lot of anomalies, such as, Bianca has a clear case for refugee status and should not have been refused and subjected to an appeal; the official/interpreter should have charged no fee; she should have been given her refugee status when she applied."

Explaining customary marriage and South African immigration laws, she added immigration laws allowed for a closed list of "marriages" in terms of the definition of marriage, which included a marriage concluded in terms of the Marriage Act, 1961; or the Recognition of Customary Marriages Act of 1998 or the Customary Marriages Act.

Botha said because of this, "if such foreign national falls within the definition of 'marriage' he or she would then qualify as a 'spouse' in terms of the Immigration Act as it refers to a 'spouse' as a party to a marriage as defined in terms of this act; or a permanent homosexual or heterosexual relationship as prescribed".

Must read: How do I assist my Zimbabwean domestic worker to stay in South Africa?

 

 

 

"Before such asylum seeker, who is in a customary union, can apply under the Immigration Act as a spouse under the Immigration Act, such holder must have the customary marriage registered at the Department of Home Affairs [the DHA] within three months of its solemnisation in terms of sections 3 and 4 of the Recognition of Customary Marriages Act 120 of 1998."

On that basis, she added, such asylum or ZEP permit holders or any foreign national who was a party to a duly registered customary marriage at the DHA would now qualify for a spouse visa under the Immigration Act as marital partners.

"Should, however, the foreign national not register the customary union with the DHA, such union will not be recognised as a marriage, and this means that the only way to qualify under the Immigration Act as a 'spouse' would be as permanent partners under the Immigration Act and comply with additional requirements to prove such relationship," said Botha.

Suppose the foreign national is the holder of an asylum permit and qualifies as a marital or permanent partner?

In that case, she added, they would first have to submit a waiver in terms of the Immigration Act to the minister of home affairs for permission to apply under the Immigration Act as a spouse of a South African.

"It is recommended that any foreign national who seeks to apply under the Immigration Act as a 'spouse' and is in a customary union to contact a lawyer familiar with the immigration laws and the Recognition of Customary Marriages Act to avoid disappointment," said Botha.

* Names changed

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