EAV v The Secretary of State for the Home Department

Membership of a particular social group and a risk of trafficking are distinct questions. Refugee status requires a causal link between feared persecution and the Convention ground. Economic hardship may drive a person to seek work abroad and expose her to trafficking, but it does not establish that the feared exploitation is on account of past victim status where the same risk would confront other impoverished people. Trafficking may begin with recruitment in the country of return even though exploitation occurs abroad. A decision to seek overseas work is not automatically outside the Convention analysis, but authorities concerning concealment of an innate characteristic do not establish a causal link where economic pressure, rather than group membership, drives the decision. Cogent tribunal findings that a claimant would not seek overseas work may be decisive.

These linked asylum appeals concerned two female nationals of the Philippines who had been conclusively recognised under the National Referral Mechanism as victims of trafficking for domestic servitude. Each claimed that economic necessity would compel her to seek work in the Middle East again, creating a real risk of re-trafficking and persecution.

In EAV’s case, the First-tier Tribunal allowed the appeal, but the Upper Tribunal set aside that decision for material error of law and dismissed the appeal on remaking. In GMP’s case, the First-tier Tribunal dismissed the appeal and the Upper Tribunal dismissed her appeal. The central issues were whether the feared future exploitation was causally linked to membership of a particular social group and whether either claimant faced a real risk of re-trafficking.

Both appeals were dismissed.

1. The Court assumed, without deciding, that both appellants were members of a particular social group. Under the Refugee Convention, however, the feared persecutory treatment still had to be causally linked to that Convention ground. The ground need not be the sole or primary reason, but it must be an effective reason, assessed by reference to all the circumstances rather than a simple but-for test: [2006] UKHL 46.
2. In EAV’s case, the risk arose from poverty and economic vulnerability. There was no finding that her previous trafficking made her more vulnerable than any other impoverished woman in the Philippines. The risk therefore existed irrespective of her past trafficking, and the necessary causal link was absent. The Upper Tribunal was right to identify the material error in the First-tier Tribunal’s reasoning, although its own reasoning should not be read as treating poverty alone as the issue.
3. Trafficking is a process involving acts, means and an exploitative purpose. It may begin with recruitment or deception in the country of return even where the exploitation occurs abroad. Any suggestion that overseas exploitation could never constitute a relevant risk in the country of return would be wrong. That observation did not assist EAV because the required Convention nexus remained absent.
4. A Convention risk may arise from a person’s choice to behave in a particular way. But the authorities concerning concealment or modification of conduct, including HJ (Iran) and Ahmed, concern behaviour expressing an innate characteristic or belief. They did not establish protection where economic pressure, rather than membership of the claimed group, drove the decision to seek work abroad.
5. In GMP’s case, the First-tier Tribunal had made cogent findings that she was not reasonably likely to seek work overseas and thereby face re-trafficking. Those findings were open to it on the evidence and disclosed no error of law. They could not be disturbed on appeal.

1. Court of Appeal (Civil Division) Dismissed both appeals.
2. Upper Tribunal (Immigration and Asylum Chamber) In EAV’s case, allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for material error of law, remade the decision and dismissed the appeal. In GMP’s case, dismissed her appeal against the First-tier Tribunal’s dismissal.
3. First-tier Tribunal Allowed EAV’s appeal against refusal of asylum. Dismissed GMP’s appeal against refusal of asylum.