Attachments and the arc of refugee protection: a legal perspective
What does it mean to have ‘attachments’ to a country or a community?
Many of us are connected to multiple places – where we’ve lived, worked, gone to school, have family or friends. For most purposes, these attachments are purely a personal matter.
But not for all purposes. The legal ordering of people’s ‘attachments’ to regulate entry and membership is an increasingly prominent feature in states’ migration policies. In the field of family immigration, explicit attachment requirements in states like Denmark and Norway demand evidence of a sponsor’s successful integration and the absence of other places where family life could be reasonably exercised. Such rules have spawned a rich literature (see here and here) critiquing the assumptions on which decisions are based, as well as their harmful consequences.
In refugee law, a person’s attachments are assessed less explicitly. Nonetheless, in my recent research (on the internal protection alternative (IPA) and temporary protection in Europe) I have been struck by how attachment reasoning permeates decisions to grant, deny or withdraw refugee status. For example, when evaluating a claim for asylum, decision-makers may ask questions about extended family connections and even Facebook contacts to establish whether relocation is possible within the country of origin. It is rarely questioned whether these networks are really – given their members’ own experiences of conflict, displacement and economic insecurity – willing or able to support the person concerned.
This post is a first effort, from my perspective as a legal researcher, to map the spaces in which attachment reasoning arises in the application of refugee law: from inadmissibility rules based on the logic of a ‘safe third country’, to the assessment of refugee status, to ‘safe return reviews’ which consider whether refugee status should end.
The concept of attachment
Attachments have no specific legal definition, but one relevant usage arises in connection with the doctrine of effective nationality. In the 1955 Nottebohm judgment, the International Court of Justice held that a person’s nationality is not just a legal formality, instead it should be based on meaningful links:
“nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties.”
In the practice of refugee law, where the metaphoric bond between state and national has been severed by the threat of persecution, we see the term used more broadly to denote connections or ties that migrants have to various communities: relational, economic, cultural or legal. A general distinction can be made between national attachments (to a particular state), geographic attachments (to a place) and personal attachments (to individuals and communities).
In contrast to ‘belonging’, which signals a subjective feeling of being ‘at home’ in a place, or a connection to a community, attachments in the legal sense are linked to criteria presented as objective, with both temporal and spatial dimensions: length of residence in a particular area, breadth and depth of relationships, legal status, work experience, language skills, and so on. As Cohen observes, the use of time and periods of residence are leveraged as a proxy for social ties and as a gateway to rights. So, for example, in Norwegian asylum practice, children who have been present for 4.5 years and have attended 1 year of school are considered to have an “attachment to the realm” which must be balanced against immigration control concerns in applications for residence.
Admissions and attachment: from countries of ‘first asylum’ to any safe place
The responsibility to provide refugee protection generally lies with the state with jurisdiction over a refugee claim (typically the country where a claim is made). However, in recognition that one’s choice of asylum country is not completely unfettered, refugee doctrine has developed certain limits to this principle. For example, UNHCR’s Executive Committee has concluded that if an asylum seeker has a “connection or close links” with another state, she may be referred there to submit her claim if it would be reasonable to do so. As the agency points out, “taking into account the duration and nature of any sojourn, and connections based on family or other close ties increases the viability of the return or transfer from the viewpoint of both the individual and the state.” On a practical level, then, requiring meaningful attachments reduces the risk of onward movement and advances cooperation among states.
However, today’s responsibility-shifting practices reveal a departure from the principle that only people with a real attachment to another (safe) country can be expected to lodge their claim there. Mere transit may suffice (see for example the Dublin Regulation and the Canada-US Safe Third Country Agreement), but even this is not necessary (EU- Turkey Statement).
The UK’s new inadmissibility guidance following Brexit provides that an asylum seeker may be denied entry based on her earlier presence in or connection to a safe third country, even if that country does not agree to the person’s return. In such cases, she may be removed to any safe country that agrees to admit her. Connections are to be assessed by biometric data, evidence regarding the route of travel and information from the screening or asylum interview. Many questions remain: if you haven’t voluntarily stepped foot in a country, but were rather smuggled on the back of a lorry, do your connections there warrant removal? The answer appears to be ‘yes’. Countervailing attachments such as close family members or dependents in the intended destination are obscured in this new regime.
Assessment of refugee status: ‘attachments’ as a proxy for protection
According to the 1951 Refugee Convention, if a person - despite her well-founded fear of persecution in one country – has nationality in another state where she can safely relocate with, at a minimum, no threat of forced return, she does not qualify for refugee status (1A(2) para 2). In these cases, attachments start with a legal connection but may also involve questions of whether protection in that second state is really viable for the person concerned.
In some states, refugee status may also be refused if the persons can safely and reasonably relocate within country of origin (the ‘internal protection alternative’ or IPA). In these cases, a person’s attachments to the proposed return area are often considered, like the presence of family members or previous residence there. On the other hand, the fact that attachments may have eroded over years in exile, or that attachments may expose the claimant to new risks, may disqualify a proposed IPA.
When a refugee has ‘reattached’ herself to the country of origin, acquired a new nationality or no longer needs protection because conditions in the country of origin have changed, refugee status may be withdrawn (the cessation clauses, Article 1C (1) – (6) Refugee Convention). While voluntarily attachments should be based on intent, for example, through the refugee’s decision to establish herself in the country of origin, states have relied on much weaker evidence of attachments, such as shorter-term visits to visit a dying relatives or contact with the embassy, to justify a cessation decision.
In both the IPA and cessation contexts, attachments are analyzed as a proxy for protection, as relatives, clan members and other groups are presumed to shield a returnee from certain harms. Attachments as a source of protection can be formalistic, failing to consider the effects of conflict on the ability and willingness of social support structures to provide real security.
In cases relying on family attachments as a source of protection it is especially problematic when these attachments – often the source of harm - are relied on as a source of protection. In the A.A. v. Sweden judgment, for example, the European Court of Human Rights found that a Yemeni woman and her children, including daughters who faced a threat of forced marriage - could safely return, based on the presumed support of the woman’s brother and her two adult sons. As Spijkerboer points out, there was no empirical assessment of whether they were in fact willing to provide support, or what they might ask in return.
Attachments and ‘integrative links’: the scope of refugee rights
One purpose of refugee law is to compensate for the absence of rights that is typical of the refugee experience – both within the country of origin but also within the country of refuge/residence. Thus, the Refugee Convention secures – in addition to protection in the sense of physical safety, a basket of rights and benefits to facilitate legal, social and economic inclusion (Articles 2-34 RC). These rights and benefits increase as the refugee’s relationship to the state evolves – as her ‘attachment’ increases (Hathaway 2021). The five levels of ‘attachment’ include:
- Being within a state’s jurisdiction
- Physical presence
- Lawful presence
- Lawful stay or habitual residence
- Long-term residence
Refugees who are ‘lawfully staying’ have a right to the same treatment as nationals when it comes to primary education, welfare and social security. Meanwhile, in terms of employment, housing and post-primary school, states are obliged to ensure the same access – at a minimum. as other non-nationals. Those who have habitual residence (typically 3 years) are exempt from any measures restricting the employment of foreigners. And so on.
In other words, the Convention established a temporal and spatial trajectory in which the passage of time results in deepening attachments to society. This has led O’Sullivan, for example, to argue that the ‘integrative links’ that a refugee has established in her country of residence should be considered in removal decisions, after the need for refugee status has ceased.
Attachment reasoning as a defense to deportation
In human rights law, the right to family and private life is often raised as a defense to deportation for irregular migrants and refugees when status has been withdrawn. As a ‘qualified right’, meaning that it is subject to justified interferences, any infringement by the state must be balanced against the individual interests at stake. This means that a deportation decision must be proportionate to the impact on the individual from a human rights perspective. As I describe below, attachments play a role in this assessment.
While the right to family life is usually confined to core family members and may be exercised abroad, the concept of ‘private life’ includes the ‘network of personal, social and economic relations’ developed since birth (Slivenko v Latvia). In other words, a person’s attachments can include relationships built through work or within the community. Attachments ‘here’ are assessed with attachments ‘there’ and balanced against the state’s interest in migration control. In Norway, for example, factors in favor of removal will be weighed against ‘attachments to the realm’ (§70 Immigration Act). Relevant factors include: the length of residence in Norway; the presence of relatives in Norway; the person’s age upon arrival in Norway: whether she has travelled to the country of origin while resident in Norway and in that case how long the visits lasted.
While separation of family members does not itself outweigh a deportation decision in human rights law, factors including the best interests of children, and whether family life can be carried out elsewhere are taken into account. Too often, though, decision makers endorse the separation of family members based on empirically unfounded assumptions about the power of ‘modern means of communications’ and periodic visits to maintain family attachments.
Attachments ‘while temporary’ have weaker legal status
Not all time is counted equally by the state in migration matters. The European Court of Human Rights has made a distinction between attachments that migrants make ‘while irregular’ and attachments made ‘while settled’. The reasoning is that a migrant without the right to remain has no legitimate expectation to develop her family and private life in the country of residence. A legal grey area exists for migrants – including refugees – who are not irregularly present but who do not have permanent residence either. It seems that attachments ‘while temporary’ may also be given less legal weight. So, for example, following the Rhuppiah judgment in the UK, the right to private life will rarely prevent deportation of persons who do not yet have settled status even if they have been legally resident.
This legal reasoning that limits the rights to family and private life when residence is granted on a non-permanent basis clearly favors state interests in border control over protection of human rights. Empirical research shows (for example, Alarcón, Escala and Odgers - Making Los Angeles Home) that while legal status structures the process of developing private and family lives, it does not determine them. In other words, people’s connections develop regardless of their legal status. In the case of refugees recognized with refugee status, moreover, there is no expectation that they should refrain from rebuilding their lives.
Evolving attachments and earned membership
Attachments, even in law, are not fixed. The quantity and quality of a migrant’s attachments to the ‘host’ state are subject to continual scrutiny, and they must be ‘worked on’ through, for example, regular work. For example, permanent residence permits may be conditioned not only on duration of stay but also minimum income levels and language skills. In Germany, deportable refugees (with the so-called ‘Duldung status’) can earn a regular residence through participation in work training schemes. And in the UK, opaque requirements for naturalization demand proof of deservingness through the accumulation of attachments. ‘Contributions to society’ must be shown to balance any ‘bad’ behavior, broadly defined (R (Hiri) v SSHD  EWHC 254). More generally, some countries require an oath of loyalty to demonstrate present and future ‘attachments’ as part of the naturalization process.
An interdisciplinary approach to attachments
The topic of attachments lends itself to interdisciplinary study of how people’s subjective experience of belonging (complex, dynamic) relates to the (simplified, prescriptive) indicators that bureaucrats apply. In the TemPro project, for example, we examine how decision makers assess people’s perceived connections to different communities in the context of asylum, removal, and applications for permanent residence. What forms of attachments are privileged? How does attachment reasoning delimit the ‘deserving refugee’ in our countries of study? These are empirical and doctrinal legal questions. Using ethnography, meanwhile, we explore how precarious residence status shapes peoples’ attachments, and how these are expressed or suppressed in legally legible ways.