This blog is part of SLSA blog series ‘Exploring people’s experiences of ‘law’ through the lens of migration’ (Edited by Dr Fanni Gyurko  and Dr Simran Kalra), which takes a socio-legal approach to migration related issues in a variety of contexts and jurisdictions. In this blog-series we shift the focus from the nation-state understanding of migration to the ‘migrant’s perspective’. This blog-series is an opportunity to exploring new, migration-related research agendas and perspectives.

Partner Migration to the UK and Hyperlegality

Jasmin El-Shewy, Post-Doctoral Research Associate, Law School, University of Exeter

Helena Wray, Professor of Migration Law, Law School, University of Exeter

Introduction

The UK has one of the most restrictive systems globally for regulating the admission of foreign spouses and partners. A UK citizen or resident and their non-UK spouse or partner must meet a wide range of criteria over an extended period, including financial conditions, proof of relationship, English language competence and adequate housing. Since the UK left the European Union, these rules have also applied to EU, EEA and Swiss citizens who are outside the EU settlement scheme but want to live with a partner in the UK. For the past two years, the Brexit Couples project has been investigating the impact of Brexit on UK-EU couples subject to these rules. This blog post is informed by data from our interviews with more than 50 UK-EU couples but the impact and experiences they reveal are not limited to this population.

The Partner Migration Rules

Government policy is set out in immigration rules, made under the Immigration Act 1971. The partner migration rules are known for their complexity and length, and they exclude a large proportion of families wishing to live together, while encroaching on and controlling the lives of those meeting, or attempting to meet, their requirements. The first hurdle for couples is to access and understand the rules. The main rules are found in Appendix FM but they must be read in conjunction with Appendix FM-SE, which sets out the evidential requirements, and other parts of the rules, notably the interpretation section. The rules are dense and confusing to read and are obfuscated by cross-references and obscure terminology. It is a dismaying introduction to the UK’s immigration system.

Of all the criteria that must be met, the minimum income requirement (MIR) is the most controversial and difficult to meet, and has been a source of intense frustration, loneliness, and distress for many. It has also been subject to wide criticism by, among others, the Children’s Commissioner for England, a House of Lords Select Committee, an APPG, advocacy groups and MPs. In its current form, the MIR requires an annual income of £29,000 which, in most cases, must be earned by the UK citizen or resident sponsor alone. Around 50% of the working population in the UK earn below this , with some groups disproportionately affected, including women, younger and older workers, people living outside London and the Southeast, and British citizens belonging to specific ethnic groups. The MIR was set at £18,600 pa when it was first implemented in 2012. The previous Conservative government intended to raise it in stages to £38,700, with the first rise to £29,000 effective from April 2024. The government has claimed that the increased MIR is necessary to protect the public purse although they provided no evidence to support that claim. In fact, the converse is likely; by preventing families from living together, it increases the likelihood of welfare claims by those forced to live alone, particularly the parents of young children. The Labour government has paused all further increases pending a report by the Migration Advisory Committee which is due in June 2025. However, it seems to be adopting a similar overall logic, and the MIR, in some form, is unlikely to disappear.

Having sufficient income is only one part of meeting the MIR. Applicants must also show that the income  has been consistently available for at least six months before the application is made and often for twelve months. Where a sponsor has been living abroad, they must already be earning the MIR (regardless of local wages) and have a job offer at the MIR to begin within 3 months of coming to live  in the UK.  This is often impossible, and the sponsor must return to the UK alone, find a job paying to the level of the MIR and earn it for at least six months before an application can be made. Applicants must also meet extensive and prescriptive requirements to evidence the MIR, including ‘formal’ payslips, an employer’s letter and personal bank statements.

The criteria are equally complex for those trying to meet the MIR through other financial resources, and are demanding in respect of other conditions for admission. In addition, applicants must pay hefty fees and the immigration health charge – the initial application costs at least £5,043, usually more. If successful, the applicant must make at least two further expensive and complex applications before indefinite leave can be obtained and total costs over the five-year process exceed £12,000, more if applicants are admitted on the basis of human rights as they must wait up to ten years for settlement. The application process therefore represents a significant and prolonged ordeal with substantial amounts of evidence that must be obtained in the correct form and within the correct time period. An unexpected event, such as redundancy or sickness, can set the application back by months, with the consequence that many other parts of the evidence – stamped bank statements and payslips, language test results, landlord or employer letters – must be renewed.

Errors are easy to make and can lead to months of expense, separation, and uncertainty. To take a single illustration, we interviewed a British citizen sponsor and his EU spouse who had two young children (dual UK-EU citizens). They started the application process because they wanted to return to the UK where the sponsor had been offered a new job. They inadvertently submitted an incorrect language certificate and, shortly before the family was due to move, the applicant’s visa was refused. The rules provide that a document submitted after the main application will only be considered in limited circumstances. It is not clear if the decision-maker failed to follow the policy or the policy is too narrowly drawn but it is difficult to see why such a minor mistake, which could have been easily and rapidly rectified, should have had such grave consequences.

The family was forced to separate. The UK sponsor began work and the children started school in the UK, while the applicant, the children’s mother, stayed behind. Although she rectified the mistake immediately by sitting the right test, because they were now living apart, the sponsor had to collect six months of payslips from his employment in the UK. At the time of the first interview, the family had been separated for six months, causing heartache and anxiety for everyone, especially the children. Shortly afterwards, the visa was finally granted and the family was reunited.

Understanding the legal regime: Hyperlegality?

This story was not unusual. Our interviewees have repeatedly told us that the partner migration rules are too complex, confusing, and difficult to meet, while the process is bureaucratic, lengthy, and very expensive. We have heard many stories of separation, stress, anxiety and diagnosed mental health conditions as a direct result of the rules.  It led us to reflect on the type of legal world our interviewees inhabit. They find their situation to be arbitrary, cruel and unpredictable but it cannot be described as lawless. Quite the reverse, they are caught in a dense, interlocking web of rules, all of which are mandated by legislation and are subject to both human rights norms and procedural protections. Unlike family migrants in the past, who were subjected to informal and exclusionary decision-maker discretion, our interviewees are subject to formal legality but they have little sense of substantive justice.

To understand this better, we have drawn on the work of scholars working on colonial emergencies, asylum, and citizenship deprivation to develop the concept of ‘hyperlegality’ as a way to describe their situation. By this, we mean the creation of a legal space within but somewhat marginal to the overall legal order, where legal rules prevail (and confer legitimacy) but are applied in an over-intensive way as a means of controlling the lives of individuals subject to them and minimising the impact of countervailing norms.

Our work on hyperlegality is still in development but we believe it will be an effective tool to analyse how governments may choose to respond to legal encroachments in areas where freedom of action is seen as critical. It is also a term that encapsulates the experience of our interviewees who find their lives dominated for years by a web of rules and laws that, far from providing certainty and clarity, leave them bewildered, trapped and impoverished.