Immigration law continues to exclude queer chosen families by relying on narrow, heteronormative definitions of kinship. At the border, they’re often forced to prove relationships that defy traditional norms, leaving many unprotected. A South African court ruling shows how the law can evolve to recognise and protect chosen family.
When queer people talk about family, they often mean something different from what immigration officials do.
For many LGBTQ+ individuals, families are not defined by blood or marriage licenses, but by bonds forged through care, trust, and resilience. Yet these chosen families often vanish in the eyes of the law, particularly at borders, where legitimacy is still filtered through narrow, heteronormative criteria.
Family reunification policies, designed to uphold the idea that families should not be separated, frequently fall short for queer migrants. Because when states decide who “counts” as family, not everyone makes it through the gate. But some countries have taken steps to challenge this narrow definition of family.
South Africa’s breakthrough: Dignity and equality together
In 1999, South Africa’s Constitutional Court made history. In a case brought by the National Coalition for Gay and Lesbian Equality, the court struck down a provision that denied immigration benefits to same-sex partners. At the time, heterosexual spouses of South African citizens or permanent residents automatically qualified for residence permits under Section 25(5) of the Aliens Control Act. But same-sex life partners were excluded.
The Court found this distinction to be unconstitutional. It ruled that the exclusion of same-sex partners amounted to unfair discrimination based on sexual orientation and violated both Section 9 (equality) and Section 10 (human dignity) of the South African Constitution. The judges stressed that equality and dignity are interdependent rights: neither can be fully realised without the other.
What made the ruling especially significant is that it came before same-sex marriage was recognized in South Africa. The Court rejected the idea that constitutional protection depended on marital status. Instead, it recognised the real harm caused by excluding life partners from legal protections afforded to heterosexual couples, noting that the law “reinforce[s] harmful and hurtful stereotypes of gays and lesbians” and does nothing to counteract the prevailing prejudice in society. In their judgment, the justices were explicit: refusing to extend immigration benefits sends a symbolic message that same-sex relationships are not worthy of respect or recognition. Thus, it emphasised that the Constitution protects not only formal equality, but substantive equality, the kind that considers the real-world effects of exclusion and stigma.
The case was also notable for the remedy it provided. Instead of striking down the entire section, the Court “read in” the words “or partner in a permanent same-sex life partnership” alongside “spouse,” ensuring immediate legal recognition and protection without waiting for Parliament to act. This creative and pragmatic remedy reflected the urgency of upholding rights in practice, not just on paper.
In affirming that same-sex life partnerships must be treated equally, the Court challenged systems that filter legitimacy through outdated norms of marriage, biology, and heterosexuality. It recognised that laws do not exist in a vacuum, and that to deny recognition is to erase lived experience.
More than two decades later, this ruling still stands as a powerful precedent. It invites us to rethink how states define kinship, and it demands more inclusive policies, especially in immigration law, where recognition can mean the difference between separation and belonging, between safety and precarity.
Kinship as resistance
Across the world, immigration law still privileges the nuclear, heterosexual family, which some scholars call a “Western, white, middle-class norm.” Anyone who doesn’t fit that mould finds themselves outside its protections.
For queer people, chosen families are often a lifeline, especially when biological relatives reject them. These are families built from shared experience and mutual care. But because immigration systems continue to link legitimacy with biology, marriage, or reproduction, these relationships are rendered invisible.
In their book Undoing Gender (2004), philosopher Judith Butler has long critiqued how state power decides which relationships are legitimate and which are not. Immigration law, they argue, is one way states reinforce heterosexual kinship norms, privileging couples who conform to the symbolic order of “real family.” The result? Queer relationships become not just marginal but unreal in legal terms.
Similarly, in The Promise of Happiness (2010), Sara Ahmed has written about the emotional consequences of this exclusion. In her words, queer people become “affect aliens,” cut off from the promises of happiness and belonging that are tightly tethered to traditional family structures.
The border as a gatekeeper
Immigration systems are not neutral. They make choices about whose love, care, and commitment are worthy of protection. The United Nations might affirm that “the family is the natural and fundamental group unit of society,” but questions remain: Who is family? And whose family?
In many countries, even where same-sex marriage is legal, laws fail to account for chosen kinship. Reproductive rights for LGBTQ+ couples, for instance, access to assisted reproductive technologies or joint adoption, are often excluded from marriage equality legislation. In places like France, Germany, and Spain, legal recognition of non-biological parents often requires additional legal steps, and chosen families outside of marriage remain largely invisible. For queer migrants, the distinction between “citizen” and “non-citizen” adds yet another layer of exclusion. As historian Mae Ngai has shown, these policies don’t just reflect social norms. They shape them. By rewarding one kind of family structure and denying others, immigration law becomes a tool for enforcing conformity.
Rethinking the family
The South African ruling offers a glimpse of what inclusive family law can look like. But 25 years later, most countries have yet to catch up.
Recognising chosen families in immigration policy isn’t just a legal issue. It’s a human rights imperative. Doing so would protect vulnerable groups, reduce discrimination, and strengthen communities built around solidarity, not just biology.
Some policymakers worry about the administrative complexity of broadening definitions of family. Others fear potential abuse of the system. But these concerns should not outweigh the fundamental principle at stake: equal dignity for all.
Queer people have always found ways to care for one another, even when institutions fail them. It’s time for those institutions, especially the law, to catch up. Because when love, care, and kinship pass through narrow gates, they don’t just squeeze through. They widen them, for everyone.
Desirée is an almun of the Hertie-Munk MGA/MIA dual degree programme.