By: Justicia Shipena
On Monday, same-sex marriage couple Guillermo Delgado and Phillip Lühl scored a victory in the Supreme Court after winning an appeal against the home affairs ministry.
This comes as Mexican-born Delgado appealed to the Supreme Court last year. He was asking the court to overturn a High Court judgment in an attempt by him to get legal recognition of his residence status in Namibia, which was refused in February last year.
The court also referred Delgado’s application for a certificate to allow him to continue staying in Namibia with his family back to the ministry to be considered afresh.
However, despite scoring a win, the couple were not entirely happy with the decision. Delgado said he was a little disappointed by the Supreme Court’s judgment when he spoke to The Villager.
“We are sent back to home affairs, and my application has to be revised afresh,” said Delgado.
“The application was already made to the ministry, and they rejected it. So they are basically saying I should apply again, but it is not clear why I should,” he said.
He added the ministry might reject the application again.
“Then this would take us to square one.”
Human activist Ndiilokwelwa Nthengwe told The Villager that the judgement was once again on a technical basis.
“What they have done is set aside the section 38 certificate for review, which was part of the decision by the ministry in which his application was rejected,” she said.
Nthengwe said the technical delay is another type of cowardice approach.
“They could have just granted the domicile status because what the ministry will do is probably grant status to the husband this time. But it won’t be on the impactful basis that the community is expecting, which is to recognise their same-sex marriage,” she said.
She further added that they wonder what the approach would look like this time.
“It is not so much about the impact for the community. It is more around the outcome of this case,” she adds.
High judge Thomas Masuku in his judgment last year, had said that he is of the considered view that Delgado’s case falls within the very net of the ratio decidendi in Prollius, meaning “the rationale for the decision“.
“The applicant is not entitled to the declarator that he seeks, namely, that he is domiciled within the jurisdiction of this court.”
Masuku added that the home affairs minister authorised the issue of a certificate of identity to any person who is lawfully resident in Namibia and who desires to live in Namibia temporarily.
“It is not clear why the certificate in terms of s 38 of the Act is called a ‘domicile certificate’. Whatever name has attached to it, it must be made very clear that the intention of its issue is evident.”
He further added that the consequence of the certificate issue by Delgado is seriously ill-conceived.
“There is no provision in the Act that underpins the interpretation that the applicant wishes the court to attach to the certificate. Once there is that false premise at the beginning, the whole edifice of the applicant’s argument, therefore, falls inevitably to the ground,” he had said.
This is in regards to the Immigration Control Act 1993 in section 38.
“His reasoning does not amount to a certificate showing that a person is domiciled in Namibia. That would be at odds with the Act’s plain language, which is clear and unambiguous.”
Thus, Masuku ordered that Delgado was not entitled to any of the orders he sought and dismissed it.
“The application appears, in my considered view, destined to failure.”
He had also refused Delgado citizenship.
Delgado has lived in Namibia for more than ten years and has been married to a Namibian citizen, Lühl, for nearly seven years.
The home affairs ministry also refused to give legal recognition to their marriage.
The couple got married in December 2014 in South Africa.
Delgado lived in Namibia based on work permits which the ministry granted to him until he was temporarily barred from the country by an immigration official in January 2020, following the expiry of his employment permit at the end of December 2019.
