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If you are an asylum seeker whose application for asylum in terms of Section 21 of the Refugee Act has not been finalised, you are still permitted to enter into a marriage. The Supreme Court of Appeal (SCA) affirmed this in a judgment handed down in October.

Background

A case was brought by asylum seeker Emmanuel Ochogwu, whose application for refugee status has been pending with the Refugee Appeal Board for over six years. He is a Christian pastor who fled the religious persecution of Boko Haram in Nigeria.

During the prolonged delay in finalising his application, Ochogwu formed a relationship with Zizipho Nkumanda. The two married in terms of customary law. In 2016, they approached Home Affairs to register their customary marriage in terms of the Recognition of Customary Marriages Act and conclude a civil marriage under the Marriage Act. This is a practice commonly adopted by customary law spouses to ensure full legal recognition of their union.

The parties were asked to prove the existence of the customary marriage and provide Ochogwu’s asylum permit for verification. They complied, providing an affidavit from Nkumanda’s father, confirming the conclusion of a customary marriage and Ochogwu’s latest asylum seeker permit.

On Valentine’s Day 14 February 2017, the couple returned to Home Affairs to finalise their marriage. But Home Affairs indicated that a recently published circular from the Deputy Director for Civic Services prohibited the marriages for asylum seekers whose applications for asylum were not finalised.

Dismayed, the couple approached the Eastern Cape Division High Court for relief.

High Court

The couple argued that the circular was an unconstitutional infringement of their rights to equality and dignity. Also, they argued that the circular infringed international law treaties on the rights of asylum seekers. These international laws, which South Africa has signed and ratified, expressly prohibit the prejudicial conduct of Home Affairs.

Highlighting the unreasonableness of Home Affairs’s conduct, the couple pointed out that the Refugee Appeal Board had been defunct for two years, resulting in Ochogwu waiting for a decision for over five years.

Home Affairs argued that the applicants should wait for a decision by the Refugee Appeal Board. Also, they argued that the applicants marriage was fraudulent to secure residency rights for Ochogwu. But Home Affairs provided no evidence for this.

After considering the arguments, the High Court concluded that the circular infringed the applicants’ rights to equality and was therefore unconstitutional. The court ordered that the parties should be allowed to marry. The respondents appealed.

Supreme Court of Appeal

The SCA considered two main issues. First, the legal status of the Home Affairs circular. Second, whether the ban on marriage for asylum seekers was unconstitutional.

Home Affairs argued that a circular is not a law and therefore the court cannot review it. But the court said that a circular is meant to guide officials in implementing government policy. The SCA noted that a similar argument had been used in the case of Ahmed v Minister of Home Affairs. The Constitutional Court in that case rejected the argument stating that it was not important to decide whether a circular was a law or not. What was important, the Constitutional Court concluded, was whether it was treated as a law by those responsible for implementing it. Put differently, if Home Affairs used the circular to give or deprive people of their rights (as laws do), then the court can review it.

The advocate representing Home Affairs argued that considering the circular as a whole, it did not bar asylum seekers from getting married. The words of the circular, he said, affirmed the right of asylum seekers to marry but only sought to guide marriage officers in concluding marriages and prevent marriages involving undocumented immigrants.

The SCA disagreed. The court took particular note of the sections of the circular that read: “refugees whose asylum application is pending cannot contemplate marriage” and “should there be an inquiry to a refugee or asylum seeker status, the marriage cannot be concluded”. The SCA concluded that these sections clearly deny asylum seekers the right to marry. Also, the court said, an interpretation that denied Ochogwu the right to marry is how the circular was understood by Home Affairs officials.

The SCA said that all interpretations of fundamental rights, such as the right to equality, must acknowledge the constitutional value of dignity. The court found it unacceptable that the wording of the circular was contradictory — the circular affirmed the right of asylum seekers to marry in one sentence, only to deny the right in the next. The court quoted the judgment of Minister of Home Affairs v Watchenuka, where the Constitutional Court stated “human dignity has no nationality”.

The SCA referred to judgments of the Constitutional Court that speak to the importance of marriage as a social institution for the expression of one’s dignity and autonomy – “it offers a social and legal shrine for love and for commitment and for a future shared with another human being”.

Court rebukes Home Affairs

The SCA’s conclusion also included a scathing rebuke of Home Affairs. The court said that judicial precedent required the state to respect the law, to fulfil procedural requirements and to tread respectfully when dealing with rights. The court found Home Affairs had failed dismally to achieve these constitutional imperatives. The court described Home Affairs’s conduct as “inexcusable and deserving of censure”. It said that Home Affairs officials were lucky to not have been called upon to personally pay the costs of litigation.

The court took particular exception to Home Affairs questioning the legitimacy of the couple’s marital relationship without advancing any evidence. A punitive cost order was made as a mark of the court’s displeasure.

* Muchengeti Hwacha is Project Coordinator of the Refugee Project at ProBono.Org.

This article was first published on GroundUp