Bad news for same-sex couple

JANA-MARI SMITH

WINDHOEK



A Windhoek High Court judge last 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 10 years with his husband and partner of more than a decade.

In January 2020, Eduardo Guillermo Delgado Castañeda sued 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, Yona, together, born by surrogacy.

During the court application, Castañeda argued that after working in Namibia for 10 years on a valid work permit and acquiring an identity certificate, he qualified for residency.

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 explained that for foreigners married to Namibians of the opposite gender, domicile is automatically obtained.

But for couples wed legally in countries where same-sex marriages are recognised, the hurdles faced when relocating to Namibia are numerous and difficult, as evidenced by several 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 as domiciled in Namibia.

He ordered Castañeda to pay the costs of the application.

Masuku only briefly touched on the issue of 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 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 marriage laws have come under increasing scrutiny in recent years, with several cases before the High Court challenging the 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.

At the time, 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 have documented 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 of the couples withdrew their lawsuit after permanent residence was approved in late July 2019.

The other two cases continue, with a hearing scheduled for April.