The Court of Appeal (CoA) has established a significant legal precedent by ruling that the risk of being re-trafficked due to generalised poverty and economic necessity does not, in and of itself, fulfil the “nexus” requirement of the 1951 Refugee Convention.
Facts:
Two Filipino women, EAV and GMP, sought refugee status in the UK after being recognised as victims of human trafficking for domestic servitude. Both women had been recruited by agencies in the Philippines and subsequently exploited by employers in Saudi Arabia before escaping while on visits to the UK. Both were physically and verbally abused and denied any time off, being expected to work very long hours. EAV was only fed leftovers, while food deprivation was used as a form of punishment for GMP. When GMP finally escaped in London in 2017, her ‘employer’s’ wife attempted to prevent her flight by falsely accusing her of stealing money.
Both women were formally recognised by the UK Government’s National Referral Mechanism (NRM) as having “conclusive grounds” for being victims of modern slavery. They contended that, if they were returned to the Philippines, extreme poverty and the lack of viable local employment would force them to seek work in the Middle East again, thereby placing them at a very real risk of being re-trafficked.
EAV argued that her status as a former victim of trafficking made her a member of a particular social group. However, the Home Office refused her asylum claim. The First-tier Tribunal (FTT) initially allowed EAV’s appeal based on economic necessity and risk of re-trafficking, as it had instilled a well-founded fear of persecution, thereby entitling her to asylum. The Secretary of State for the Home Department (SSHD) appealed to the Upper Tribunal (UT), which found that her risk of future harm was rooted in general economic vulnerability rather than her membership of a specific social group.
In GMP’s case, the FTT dismissed GMP’s appeal from the outset, as the Judge found that she did not face a real risk of return based on several factual assessments, including resilience and family support. She too appealed to the UT, which dismissed her appeal as there was no material error of law. Both parties appealed to the CoA.
Decision:
The CoA dismissed the appeal. The CoA’s reasoning turned on two central legal pillars:- the absence of a causal link (nexus) to a protected characteristic and the threshold of “real risk” upon return.
The Court accepted that the women belonged to a “particular social group” (PSG) as former victims of trafficking. However, to be a refugee, any fear of persecution must be because of that membership. The Court ruled that the risk of being re-trafficked was driven by economic necessity (poverty), which is not a protected ground under the 1951 Refugee Convention. Lady Justice Andrews noted that EAV failed to show how her history made her any more likely to be exploited than any other impoverished person in the Philippines. Since the risk applied to anyone in a similar economic state, the harm was not inflicted because she was a former victim.
Implications:
This judgement creates a high legal barrier for victims who argue that poverty will force them back into the hands of traffickers. The primary implication is the strict reinforcement of the “nexus” requirement. The Court confirmed that being a victim of a crime (in this case trafficking,) is insufficient to gain asylum, and therefore narrowed the refugee definition.
The Court ruled that if a person’s risk of being re-trafficked is caused by poverty, it does not count as persecution under the Refugee Convention.
While the Court was willing to assume that these two women belonged to a PSG, it signalled that being a “former victim” does not automatically grant protection. Instead, victims must demonstrate through expert evidence that their social caste stigmatises or targets former victims specifically because of their personal history.
