103 The application form getting recovery tried of the plaintiff was for this reason ignored. This case was an exemplory instance of just how asylum hunters try happy to abandon the security of one’s refugee system and shift – thanks to marriages from convenience – on shelter of your own immigration system, that provides a whole lot more meaningful rights and positives.

The fresh make an effort to secure individual shelter of the abandoning refugee protection for immigration defense due to a marriage off benefits try further shown inside the Zaheer

The guy contended which he are an asylum seeker; 104 that he is actually the fresh new spouse of a south African citizen which have just who he had a child; that, during stop, he was living with their wife; and therefore the little one born throughout the elizabeth. 105 The plaintiff resided as a keen asylum seeker to own couple of years, protected RevisГµes do dateinasia by the latest refugee program, right after which switched so you’re able to a relative permit as he partnered a great Southern area African resident become protected by this new immigration system. 106 In Court reading, they went down you to their cousin permit are invalidated because of this off their wife’s contention you to the matrimony try certainly one of comfort, 107 but he sought to help you justify the fresh arbitrariness of deportation according to the Southern African born baby. The new Court learned that the wedding was one of convenience into another factor:

(i) The marriage is ended from inside the Southern Africa but accompanied the new Pakistani traditional behavior in that the wedding was not commonly or religiously arranged since commonly knew while the partners came from various other faiths and you may cultural backgrounds. 108

Furthermore, the entire abandonment of your own refugee experience research adequate to show that he did not leave their nation for everybody intentions of seeking to asylum when you look at the South Africa

(ii) If wedding is actually create and ended, the wife is actually expecting that have some other people’s child; not, they decided that, regarding the heart of creating a household tool, the child would-be handled as their own. 109 Concurrently, the newest partner needed to be paid off R300 monthly having accepting to behave since the a spouse to a fake relationships. However, the fresh new plaintiff got avoided putting some arranged monthly installments. 110

(iii) Down seriously to a violation off contract, the latest wife approached the official to get the elizabeth return so you can their particular surname. 111

(iv) New spouse reported that they never lived along with her; your plaintiff got not ever been in order to their home; and this she don’t know where the guy existed. 112

(v) Compliment of their courtroom associate, the new candidate registered an affidavit and then he expressed their intent to try to get asylum to your next date making sure that he you may believe in new low-refoulement principle as opposed to the new good relationship to prevent his deportation. 113

This case portrays the extremes that asylum hunters will go in order to support the important rights out of residence since the refugee system are hardly accompanied by the County, and so leaving refugees and you can asylum candidates exposed. Next a couple of circumstances then let you know courtroom technicalities and you may intricacies one create difficult to annul a beneficial suspected matrimony out of benefits. Those two circumstances is actually Malhekwa v Minister from House Factors (Malhekwa : (2014)) 114 and Khan v Minister away from Household Items (Khan : (2014)), 115 both handed down during the 2014.

Into the Khan, the newest plaintiff is actually a wife out-of an effective Pakistan federal (the newest husband) just who, in the course of his arrival into the South Africa, are married to a beneficial Pakistani along with a couple of children using this wedding. Which relationships is ended after the applicable Pakistan law and you will Muslim family unit members laws. Brand new spouse debated you to, relative to Pakistan legislation, he had been permitted to get married another spouse given that, whilst in Southern area Africa, the guy hitched a-south African resident regarding Xhosa tradition (for instance the payment out-of lobola). This is later followed by the conclusion away from a wedding adopting the Muslim rites (after the partner got converted to new Muslim faith) ultimately by the end off a civil relationships. There have been no college students produced of this matrimony. Relying on their matrimony, the newest plaintiff sought for relief from the new legal in order to interdict and you can hold-back the official authorities from expunging the relationship; a keen expungement that’ll has lead to brand new deportation of one’s partner so you’re able to Pakistan. The state officials contended that, whilst the couples had been life together to possess seven many years, the marriage in question cannot become made use of because are a married relationship from convenience. Predicated on them, the new spouse was an illegal non-native simply because they he covered short term home (that is, a member of family charge) due to a married relationship out-of convenience, that was concluded as a result of circumvention of your immigration legislation and you can family relations law standards. It absolutely was argued one since the partner’s entry in the country failed to conform to immigration law, and because the wedding Work did not allow completion off another relationship, the brand new plaintiff’s wedding so you’re able to an excellent Pakistani are null and gap. 116 It was after that contended one, pursuant to civil marriage law, somebody who is actually married beneath the regulations from a foreign country might not ending a valid civil relationships within the South Africa. 117