Bad news for same-sex married couple

01 March 2021 | Justice

Windhoek • [email protected]

A Windhoek High Court judge on Friday handed down a defeat to a foreigner married to a Namibian citizen who wanted to be granted legal residency status after having lived and worked in Namibia for ten years with his husband and partner of more than a decade.
In January 2020, Eduardo Guillermo Delgado Castañeda sued the Ministry of Home affairs and Immigration after he was kicked out of Namibia when a border official discovered he was in a same-sex marriage with Namibian Phillip Lühl.
Castañeda and Lühl have lived in Namibia since 2011 and were married in South Africa in 2014. They have a son together born to them by surrogacy.
During the court application, Castañeda argued that after working in Namibia for ten years, on a valid work permit, and acquiring an identity certificate, he automatically qualified for legal residency - domicile. And, while he acknowledged that same-sex marriage is not recognised in Namibia, he said his long term partnership and marriage of seven years should be relevant to his application.
Human rights advocate and lawyer Norman Tjombe yesterday saidthat for foreigners married to Namibians of the opposite gender, domicile is automatically obtained. But for couples married legally in countries where same-sex marriages are recognised, the hurdles faced when relocating to Namibia are numerous and difficult, as evidenced by several court cases currently before the High Court.

Different laws for different people
On Friday, High Court Judge Thomas Masuku dismissed the application by Castañeda for the court to set aside the decision by immigration and home affairs to reject a renewal or extension of his identity certificate. Masuku also dismissed the application that the court declare Castañeda is domiciled in Namibia.
He ordered Castañeda to pay the costs of the application.
Castañeda argued during the application that while the Namibian law “does not recognise same-sex marriages (yet), I submit that when it comes to the determination of whether I have established domicile in Namibia, the fact that Phillip and I have been in a stable relationship for more than ten years is a relevant factor.”
He argued that the couple has acquired universal partnership status which is an arrangement recognised by the common law of Namibia.
During the court case, Castañeda argued that his life and work in Namibia, and his possession of the identity certificate, plus his universal partnership with his husband, a Namibian citizen, meant he qualified for domicile.

High Court judge Masuku on Friday only briefly touched on the issue of the marriage. “There are not allegations made for the court to declare the country’s approach to same-sex marriages unconstitutional,” he ruled.
On the issue of domicile, Masuku relied on a Supreme Court judgment – Minister of Home Affairs and Immigration versus Prollius – which dealt with the issue of obtaining domicile in the country as a foreigner living and working in Namibia.
He underlined that that case, which is binding, established that foreigners do not automatically qualify for domicile when they have lived and worked in Namibia for a long time on the basis of an employment permit or other provisional permits. He further ruled that the certificate of identity which had been issued and not extended after it lapsed, also did not mean he was domiciled.

Namibia’s discriminatory marriage laws have come under increasing scrutiny in recent years, with several cases before the High Court challenging the country’s lack of recognition of these marriages.
In July 2019, three Namibians who tied the knot with their same-sex partners in countries where gender is not a barrier to marriage and who want their marriages legally recognised in Namibia, were asked to consider joining their cases.
That month, judge President Petrus Damaseb gave instructions for all three pending cases to be consolidated and heard simultaneously by a full bench of three judges, should the applicants agree, to deal with the legality of same-sex marriages.
All three couples document numerous setbacks in their attempts to move to Namibia with their Namibian-born spouses, including discrimination at the hands of immigration officials. Later that year, one couple withdrew their lawsuit after her permanent residence was approved in late July 2019.
The other two cases continue, with the hearing scheduled for April.

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