Can I be refused a spousal visa to South Africa because I am HIV-positive?

The long answer

Thank you for your email asking if it is possible for Home Affairs to refuse you a spousal visa on the grounds of your HIV status.

No, it should not be possible, because:

The Constitutional Court underlined the importance of the family unit in society in June 2019, saying that marriage and family relationships are “social institutions of vital importance”, when it found that a spouse or children should not have to leave the country to change their status from visitor to spousal visa.

The Constitution gives rights to all people, including asylum seekers and refugees, to access basic health services, which include HIV/AIDS treatment. National health policy is that antiretroviral treatment is freely available to everyone in South Africa, irrespective of documentation, status or nationality.

The Constitution also protects the right to privacy and confidentiality. Medical confidentiality is a basic ethical requirement and the National Health Act says that confidentiality may only be breached if a patient consents to the disclosure in writing; if a court or law requires the disclosure, or if non-disclosure represents a serious threat to public health.

The Promotion of Access to Information Act (PAIA) says that access to information or records can be refused if it amounts to an unreasonable disclosure of third party personal information. This means that where another person or institution requests health information, particularly HIV-related information, that information cannot be disclosed unless the person whose information it is, gives permission in writing for it to be made known.

The documents that Home Affairs requires to grant a spousal visa are:

• Marriage certificate

• Proof of your South African spouse’s citizenship or residence

• A letter of support from your South African spouse

• Proof of good health and standing.

According to the Home Affairs website, the diseases that must be excluded in terms of good health are “cholera, pestilence, yellow fever and any other diseases as determined by the Department of Health from time to time”. There is no mention of HIV/AIDS.

But because it’s hardly ever easy or straightforward when it comes to dealing with Home Affairs, you may want to approach the following organisations for advice and assistance:

• Legal Resources Centre: Email: info@lrc.org.za. Tel: 011 836 9831

• SECTION27: University of the Witwatersrand. Tel 011 7178600.