How can I can assist my partner change his status from asylum seeker to temporary or permanent resident? Home Affairs ignores us.

The long answer

Thank you for your email asking how you can help your partner to change his status from being an asylum seeker to temporary or permanent resident.

Your frustration with Home Affairs is understandable. You may want to speak to Legal Aid (0800 110 110), the Legal Resources Centre (011 838 6601), or Lawyers for Human Rights (021 424 8561) for assistance. They have offices in several cities. None of these charge for their services so they have many clients. So if you can afford an immigration lawyer, it may be a quicker route.

The Constitutional Court ruled in November 2018 that any foreigner, including refugees and asylum seekers, could apply for temporary or permanent residence, and that this could be granted if the person fulfilled the requirements of the Immigration Act.

Also, if you’re the spouse or life partner of a South African citizen, but don’t qualify for study, work or business visas, you have the right to apply for the Spousal Visa which allows you to stay with your South African partner or spouse. This permit can be further endorsed to allow you to work or study or start your own business.

In December 2018, the Immigration Act was amended concerning the rights of spouses in a “permanent homosexual or heterosexual relation”. These are the important points:

• Applications need to prove to the Director-General that the applicant is a spouse to a citizen or permanent residence permit holder.

• Applicants need to sign an agreement stating that the permanent homosexual or heterosexual relationship has existed for at least two years before the date of application for a relevant visa and that neither of the parties is a spouse in an existing marriage.

• Documents detailing the financial support the partners provide to each other need to be provided.

• Both partners to a permanent homosexual or heterosexual relationship may be interviewed separately, on the same date and time, to determine the authenticity of the existence of their relationship.

Asylum seekers and refugees do have the right to get married in South Africa as long as they meet the Home Affairs marriage requirements. These are essentially:

• that if you have been married previously, you must show proof of divorce or death of previous partner

• that you are not a minor (under age of 18)

• that you are not suffering from severe mental illness which prevents you from understanding what marriage is.

Your partner must also give Home Affairs a valid asylum seeker/refugee permit, as well as a declaration from the police confirming that he is not currently married.

The first step to getting married is to register your intention to marry with Home Affairs and apply for a Department of Home Affairs Marriage Certificate at least three months before your wedding date.

The following documents must be submitted with the Home Affairs marriage forms which are available on request:

• Identification documents, such as a South African ID card

• Both passports, if one partner is not South African

• A completed BI-31 form, which declares that you are legally allowed to marry

• Official divorce decree, stamped by the court, if one partner has previously been married

• Death certificate, if one partner has been widowed

Before a marriage is declared legal in South Africa, couples are required to attend a Home Affairs marriage interview. This is to make sure that both parties are entering the marriage of their own free will. If you don’t attend an interview, the marriage certificate will not be registered and the marriage will be declared null and void.

And if all goes well and you apply for Temporary or Permanent Residency, you need to have the following documents:

• Proof of residence or spousal citizenship in South Africa

• Government issued Marriage Certificate (if you are married)

• A letter of support from the partner that holds citizenship/permanent residency

• Proof of current mental records and well-being

• A completed temporary or permanent residency application form