Economic Necessity, Re‑Trafficking Risk and the Refugee Convention Nexus:
Commentary on EAV & GMP v Secretary of State for the Home Department [2025] EWCA Civ 1677

1. Introduction

This Court of Appeal decision sits at the intersection of asylum law and modern slavery protections. Two Filipino women, each conclusively recognised by the UK’s National Referral Mechanism (NRM) as victims of human trafficking for domestic servitude in Saudi Arabia and the United Kingdom, sought refugee status on the basis that:

On return to the Philippines they would be driven by economic necessity to seek work again in the Middle East; and
By doing so they would face a real risk of being re‑trafficked and subjected to the same severe exploitation as before.

They argued that this future risk meant they fell within the definition of a “refugee” under Article 1A(2) of the 1951 Refugee Convention, relying in particular on:

their status as female former victims of trafficking, alleged to be a “particular social group” (PSG) in the Philippines; and
the obligation of Contracting States to protect individuals from persecution where the state of nationality is unable or unwilling to provide effective protection.

The key legal issues were:

Whether (and on what evidence) former victims of trafficking in the Philippines can constitute a “particular social group”.
Whether a risk of future re‑trafficking, arising because a person is compelled by poverty to seek work abroad, is persecution “for reasons of” membership of such a group.
Whether the fact that the physical exploitation would occur outside the Philippines (in the Middle East) prevents the risk from constituting persecution in the “country of nationality”.
How the trafficking definitions under the UN Trafficking Protocol and ECAT, including the irrelevance of “consent”, interact with the Refugee Convention test.

The Court of Appeal dismissed both appeals. Its reasoning clarifies, and in some respects limits, how victims and potential victims of trafficking can succeed in asylum claims based on a fear of re‑trafficking. The central holding is that economic vulnerability, even when it leads to a high risk of future trafficking, does not in itself establish the necessary causal link (“nexus”) between the feared harm and a Convention reason such as membership of a particular social group.

2. Summary of the Judgment

2.1 The Appellants

EAV – A 37‑year‑old woman from a poor coastal area of the Philippines. She was recruited via an agency in Manila to work as a domestic worker in Saudi Arabia. Her working conditions were abusive and exploitative; her passport and phone were confiscated; she was effectively confined to the house and subjected to physical and verbal abuse. She was brought to the UK twice with the family. On the second occasion she escaped with the help of a charity. The NRM made conclusive findings that she had been trafficked.
GMP – A 53‑year‑old woman, also from the Philippines, with a history of domestic violence from her husband. After separation she was recruited to Saudi Arabia by an agency. The job turned out to involve extreme working hours, control, abuse and food deprivation. Her passport was seized. She was brought to the UK multiple times by her employers. She eventually escaped in London and was found by the NRM to have been trafficked for domestic servitude.

Both women argued that, if returned to the Philippines, poverty and lack of viable work would “compel” them to seek overseas domestic work again, with a real risk of re‑trafficking and severe exploitation.

2.2 Procedural History

Both asylum claims were refused by the Secretary of State for the Home Department (SSHD).
In EAV, the First‑tier Tribunal (FtT) allowed the appeal, finding a real risk of re‑trafficking “out of economic necessity”. The Upper Tribunal (UT) set aside that decision for material error of law and, re‑making it, dismissed the appeal.
In GMP, the FtT dismissed the appeal. The UT upheld that dismissal, finding no error of law.
The Court of Appeal (Popplewell LJ and Sir Christopher Floyd granting permission; judgment delivered by a judge with whom Jeremy Baker LJ and Baker LJ agreed) granted permission to appeal in both cases, but ultimately dismissed both appeals.

2.3 Core Holdings

The Court of Appeal held:

Even assuming (without deciding) that female former victims of trafficking in the Philippines form a “particular social group”, the appellants could not show the required causal connection between that group membership and the feared future persecution.
In EAV, the risk of re‑trafficking arose from economic vulnerability and the decision to seek overseas employment, not from her status as a former trafficking victim. There was no finding that her past trafficking made her more vulnerable than any other impoverished woman, or that traffickers target her because she is a former victim.
In GMP, the FtT’s factual finding that she would not in reality seek work abroad again, and thus would not expose herself to the risk of re‑trafficking, was open to the judge on the evidence and disclosed no error of law. Without such a real risk, the Refugee Convention claim failed at the threshold stage.
The Upper Tribunal was correct to identify a material error in the FtT’s decision in EAV, which had characterised “economic necessity” as effectively amounting to persecution without identifying a Convention nexus. Although some of the UT’s reasoning (particularly on what constitutes risk “in the country of origin”) was not ideally expressed, its conclusion was upheld.
The analogy sought to be drawn with HJ (Iran) – that a trafficking victim should not be refused asylum because she could hypothetically avoid harm by not going abroad – was rejected. The Court distinguished between:
- conduct that expresses an innate characteristic or belief (as in HJ (Iran) and proselytising cases), and
- economic choices driven by poverty (such as seeking overseas work).
Only in the former category do the HJ (Iran) principles apply.
The Court accepted that trafficking is a process beginning in the country of origin (with deceptive recruitment, abuse of vulnerability, etc.), so the fact that some or most of the exploitation would occur abroad does not of itself prevent recognition of a risk of persecution in the country of nationality. But that point did not assist the appellants because their cases failed for lack of nexus and, in GMP’s case, lack of real risk.

3. Legal Framework and Precedents

3.1 Definition of a Refugee and “Particular Social Group”

Article 1A(2) of the Refugee Convention defines a refugee as a person who:

“owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

The decision reiterates three central elements:

a well‑founded fear (i.e. a real risk, often expressed as a “reasonable degree of likelihood”);
persecution, which must involve serious harm and a failure of state protection; and
a causal link (“for reasons of”) between the persecution and at least one of the Convention grounds (including “membership of a particular social group”).

In Fornah v Secretary of State for the Home Department [2006] UKHL 46; [2007] 1 AC 412, the House of Lords set out the criteria for a “particular social group” (PSG). Members must:

share an innate or immutable characteristic or a common background that cannot be changed, or a characteristic or belief so fundamental to identity that one should not be forced to renounce it; and
have a distinct identity in the relevant society, perceived as different by that society.

The Court of Appeal in this case:

Assumed without deciding that female former victims of trafficking in the Philippines constitute a PSG (para 52); but
emphasised that the Refugee Convention treats persecution “for reasons of” membership of such a group as equivalent to persecution for race, religion etc. The key is the persecutor’s motivation or the reason why the individual is susceptible to persecution (paras 5–7, 59–60).

Lord Bingham’s formulation in Fornah (para 6 of the judgment) is central:

“The text of article 1A(2) … makes plain that a person is entitled to claim recognition as a refugee only where the persecutory treatment of which the claimant has a well‑founded fear is causally linked with the Convention ground on which the claimant relies… The ground on which the claimant relies need not be the only or even the primary reason… It is enough that the ground relied on is an effective reason… In deciding whether the causal link is established, a simple ‘but for’ test of causation is inappropriate; the Convention calls for a more sophisticated approach, appropriate to the context and taking account of all the facts and circumstances…”

And Lord Rodger in Fornah stressed (para 7 of the judgment) that while not all members of the group must be persecuted, all members should be susceptible to the relevant persecution.

These principles frame the Court of Appeal’s conclusion that, even if former trafficking victims are a PSG, the appellants did not establish that they face persecution by reason of membership of that PSG, as opposed to their economic position.

3.2 Persecution and State Protection

The judgment draws on HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596 and the (then) EU Qualification Directive (Directive 2004/83/EC). Article 9(1) of the Directive provides that acts of persecution must:

“(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights… or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner…”

Drawing on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, the Court repeats (para 9 of the judgment):

“Persecution covers many forms of harm ranging from physical harm to the loss of intangibles… Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.”

Two further points are underlined:

State involvement or failure: As Lord Hope emphasised in HJ (Iran), persecution for Refugee Convention purposes requires state sponsorship or condonation, or at least a failure by the state to provide reasonable protection (para 10). The central question is whether the home state is “unable or unwilling” to discharge its protective duty.
Forward‑looking, individualised assessment: At para 11, the judgment stresses that the assessment must focus on what the applicant will actually do on return and what risk flows from that. A person’s theoretical ability to avoid harm by modifying their behaviour does not automatically defeat a claim – but nor does it automatically support one. It depends on the nature of the behaviour and why the person would modify it.

The Court adopts the orthodox approach that a fear is “well‑founded” if, looking at the evidence as a whole, there is a “real risk” that the feared persecution will occur (para 14).

3.3 Human Trafficking under International and Domestic Law

The Court sets out the international definition of trafficking drawn from:

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (“Trafficking Protocol”), supplementing the UN Convention against Transnational Organized Crime; and
The Council of Europe Convention on Action against Trafficking in Human Beings (ECAT).

Article 3(a) of the Trafficking Protocol defines “trafficking in persons” as involving three elements:

Acts – recruitment, transportation, transfer, harbouring or receipt;
Means – threat or use of force, coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, or giving/receiving of payments to achieve the consent of a controlling person; and
Purpose – exploitation, including forced labour or services, slavery or practices similar to slavery, servitude, or sexual exploitation.

Consent is expressly irrelevant where any of the prohibited “means” are used (Article 3(b)). This definition is replicated in ECAT and is used in the UK’s Modern Slavery Act 2015 framework and by the NRM (paras 15–16).

The Court emphasises that trafficking is a process (para 17):

It can occur across borders.
Different individuals or entities may perform different elements (recruitment, transport, exploitation).
The intention to exploit runs throughout.

This is crucial to one of the appellants’ arguments: that the risk of trafficking “begins” in the Philippines with deceptive recruitment, even if the physical exploitation takes place in the Middle East. The Court accepts this in principle (para 57), rejecting any simplistic territorial argument that only harm within the Philippines can be relevant for asylum purposes.

4. The Cases in Detail

4.1 EAV: Economic Vulnerability and the Nexus Problem

4.1.1 Facts and First‑tier Tribunal Decision

EAV was recruited from rural, impoverished Tibanban, where about a third of the population lives below the poverty line. She signed a contract in Manila promising ordinary domestic work with reasonable hours. In reality, she faced:

15–18 hour days, seven days a week;
no days off and effective confinement;
physical and verbal abuse; and
deprivation of adequate food.

She accompanied her Saudi employers to the UK twice. On the second occasion she escaped and was recognised by the NRM as a victim of trafficking for domestic servitude. The SSHD accepted her account as credible and consistent with objective country information (para 21).

Her asylum claim, made in 2020, was founded on the contention that if returned to the Philippines:

she would be unable to find sufficiently paid work at home; and
to support herself and her daughter she would “have no choice” but to seek domestic work abroad, thereby facing a real risk of suffering similar exploitation again.

The SSHD’s refusal letter accepted that, as a victim of trafficking, she was a member of a particular social group. This appeared to be supported by an earlier (2012) US State Department report describing trafficking patterns from the Philippines, including exploitative recruitment practices through agencies (para 23). Nevertheless, the SSHD concluded:

she would be able to obtain work in the Philippines, assisted by family networks; and
if she chose to go to Saudi Arabia again, that would be a free choice, not compelled by circumstances amounting to persecution (para 24).

The FtT allowed the appeal. It found:

no real risk that she would be individually “targeted” by past traffickers (para 25, 53);
that the risk arose from her economic vulnerability and the “economic necessity” of seeking better‑paid overseas work; and
a “real risk of her being re‑trafficked out of economic necessity if returned” (para 25).

Crucially, the FtT judge treated the combination of poverty, limited employment prospects, and past trafficking as sufficient to establish a well‑founded fear of persecution on return.

4.1.2 Upper Tribunal and Court of Appeal’s Critique

The Upper Tribunal allowed the SSHD’s appeal, holding that the FtT had committed a material error of law:

It had expressly found that she would not be targeted by traffickers in the Philippines.
It had identified the risk as purely economic – arising from “economic necessity” and “economic vulnerability”.
It had not shown how those economic hardships were persecution “for reasons of” a Convention ground.

The UT concluded that if an individual leaves the country of origin of their own free will in pursuit of economic opportunity abroad, they are not entitled to Refugee Convention protection against the risks faced outside the country in doing so (para 27).

The Court of Appeal agreed that the FtT decision was legally flawed (para 53–55). The key criticisms were:

Failure to identify a Convention nexus: The FtT treated EAV’s economic vulnerability as the basis for her risk but did not explain how this was linked to her membership of a PSG or any other Convention ground.
- Simply being impoverished does not, of itself, make a person a member of a PSG.
- The judge did not identify any element of EAV’s situation that distinguished her from “any other impoverished person in the Philippines who was driven by economic need to seek employment abroad” (para 54).
Conflating hardship with persecution: The UT’s own paragraph 25 was imperfectly framed, but the Court of Appeal clarified the proper position:
- extreme poverty and lack of opportunity are not themselves persecution; and
- the relevant question was whether, because of her status as a former trafficking victim, she was at a distinct, Convention‑linked risk of further exploitation if she sought to work abroad (para 56).
Economic pressure is not a Convention reason: The Court held that what “drives” EAV’s behaviour is economic pressure, not her membership of the PSG (para 59):
- She was economically vulnerable before being trafficked and remained so afterwards (para 59).
- There was no evidence that she was more vulnerable to re‑trafficking than any other poor woman in her situation because of her past trafficking.
- There was no finding that traffickers would target her again because she had been trafficked before (paras 59–60).

Accordingly, the Court concluded that the “necessary causal link between membership of the particular social group and the risk of persecutory treatment is not established” (para 60). The risk existed “irrespective of whether EAV had been trafficked before” (para 60).

4.1.3 Territoriality and the Location of Risk

The Court did, however, nuance one aspect of the UT’s reasoning. If the UT was suggesting that because the feared exploitation would occur outside the Philippines there could be no relevant risk in the country of origin, that would be incorrect (para 56–57).

The Court accepted Ms Naik KC’s submission that trafficking is a continuum beginning in the country of origin:

The recruitment agency’s deception and exploitation of vulnerability occur in the Philippines.
These acts can themselves constitute serious harm or at least the beginning of persecution.

Thus, in principle:

The fact that the most extreme exploitation occurs in another country does not prevent the situation from qualifying as persecution in the “country of nationality” for Refugee Convention purposes.
But in this case, that point did not cure the absence of a Convention nexus: the persecutory element (the trafficking and exploitation) was still not shown to arise because of a Convention ground (para 59–60).

4.1.4 HJ (Iran), Ahmed and Behaviour‑Based Risks

The appellant relied on HJ (Iran) and Ahmed v SSHD [2000] INLR 1 to argue that:

a risk which arises as a result of the applicant’s behaviour (here, seeking work abroad) can still ground a valid asylum claim; and
it is not an answer to say that the applicant could avoid persecution by modifying behaviour if, in reality, they will not do so (as per HJ (Iran) on concealment of sexuality).

The Court accepted at a general level that:

Convention protection can be engaged by risks flowing from behaviour that the applicant chooses to engage in; and
the fact that an applicant could act differently to avoid persecution is not by itself decisive.

However, it distinguished HJ (Iran):

In HJ (Iran), the behaviour (living openly as a gay man) was an expression of an innate characteristic – sexual orientation – which is a Convention ground (membership of a particular social group).
Requiring concealment of that characteristic in order to avoid harm would “defeat the very right which the Convention exists to protect” (para 12).
By contrast, in the present cases, seeking overseas domestic work is an economic strategy, not the expression of an innate or fundamental characteristic or belief.
No one was arguing that the appellants were being forced to “hide” their status as former victims of trafficking to avoid persecution; the nexus was missing because traffickers were not shown to target them because of that status (para 58–60).

The Court therefore rejected the analogy with HJ (Iran), agreeing with the SSHD that it was “flawed” (para 58).

4.2 GMP: No Real Risk on the Facts

4.2.1 Facts and First‑tier Tribunal Decision

GMP’s experience of exploitation in Saudi Arabia and the UK was similar to EAV’s, but she had an additional dimension to her claim: a fear of domestic violence from her ex‑husband in the Philippines.

The SSHD’s refusal decision (March 2023) differed from the stance taken in EAV’s case:

Relying on a November 2022 Country Policy and Information Note (CPIN) for the Philippines, the SSHD held that “potential victims of trafficking” are not a PSG, because:
- they do not share an innate/immutable characteristic or a fundamental belief; and
- they are not perceived in Filipino society as a distinct group (para 32).
The CPIN recognised that women and children trafficked for sexual exploitation are likely to be a PSG (because of stigma and social attitudes), but remained silent on those trafficked for forced labour/domestic servitude (para 33).

Before the FtT, counsel for GMP framed her re‑trafficking risk similarly to EAV’s: that she would be “compelled” by necessity to seek work abroad, where she would face a real risk of further modern slavery. The SSHD did not substantively dispute that overseas work might entail such a risk, but argued there was no sufficient evidence that she would in fact go abroad.

FtT Judge Jarvis accepted that GMP was a credible witness but made key factual findings (para 36):

She had had no direct contact with her ex‑husband for 10 years; there was no real risk he would seek her out on return.
On the re‑trafficking issue, he found that it was “not reasonably likely that she would seek work overseas, thereby endangering her own safety” (para 36).
He gave detailed reasons at para 58 of his decision, including:
- the family’s ability to manage during periods when she could not send money;
- the fact that most children were now adults and more independent;
- her improved mental health and increased resilience; and
- her understandable caution in light of horrific past experiences.

On that basis, the judge concluded there was no real risk of re‑trafficking and dismissed the appeal.

4.2.2 Upper Tribunal and Court of Appeal’s Endorsement

The UT upheld the FtT decision, finding no material error of law. The Court of Appeal agreed (para 61–62).

Ms Naik attacked the FtT’s reasoning, arguing that:

the judge had wrongly assumed that because GMP had been trafficked before, she would avoid putting herself at risk again;
this ignored “unscrupulous means” of recruitment by agencies that could lure her into similar situations, regardless of her subjective intentions; and
the judge’s reference to her not choosing to “endanger herself” reflected a misunderstanding of the irrelevance of consent in the context of trafficking (para 46).

The SSHD, by contrast, argued that:

the decisive finding was that she would not, in practice, seek work abroad – whatever her motives; and
even if “seek to endanger herself” looked like a comment on her motives, the judge was entitled, given the evidence, to conclude she would exercise greater caution (para 47–48).

The Court of Appeal held:

The FtT’s fact‑finding as to what GMP would or would not do on return was squarely within its remit.
It was properly reasoned, based on a holistic assessment of her family circumstances, financial realities, mental health progress, and past resilience (para 36, 61).
Even if the language “seek to endanger herself” could be criticised, the substance of the finding was that she would not in fact take up overseas domestic work again, and that conclusion was reasonably open to the judge.
Without a real risk of her entering the overseas employment pathway, there was no real risk of re‑trafficking. The Refugee Convention claim therefore failed at the factual threshold (para 61–62).

The Court was not persuaded that the judge had misapplied the concepts of consent and coercion in trafficking; rather, he had simply found that this particular appellant, given her changed circumstances, would not in reality be in a position where unscrupulous recruiters could lure her back into similar exploitation.

5. Interaction with Trafficking Law, the NRM and Asylum Law

5.1 Consent and Trafficking vs. Nexus in Asylum Law

The appellants’ arguments sought to build heavily on the idea, embedded in the Trafficking Protocol and ECAT, that:

victims’ “consent” to travel or take up employment is legally irrelevant once deception, abuse of vulnerability, or coercion is established; and
therefore, any future “consent” to overseas employment is also vitiated by those same structural vulnerabilities (poverty, lack of alternatives, deceptive recruitment).

They sought to argue, in effect:

Once you accept someone has been trafficked in the past, their future “choices” about work abroad cannot be treated as genuinely voluntary; and
if the same deceptive structures and vulnerabilities remain, the risk of re‑trafficking should be treated as persecution to which the Refugee Convention responds, without requiring separate proof of persecutor motivation.

The Court of Appeal did not dispute the irrelevance of consent within the trafficking framework. But it drew a clear line between:

Trafficking law, which is concerned with whether the elements of “act, means, and purpose” are met and whether the victim’s consent is vitiated; and
Refugee law, which is concerned with:
- whether the harm (which may be trafficking) amounts to persecution; and
- whether that persecution is for reasons of a Refugee Convention ground (e.g. PSG, race, religion).

Trafficking can undoubtedly amount to persecution, but it is not ipso facto persecution for Convention reasons. The Court’s key message is that:

The fact that a person has been or will be trafficked is not the end of the Refugee Convention analysis.
The asylum claimant must still show that:
- the state is unable or unwilling to protect them; and
- the traffickers’ actions (or the person’s susceptibility to them) are linked to a Convention ground, not simply to generalised poverty or opportunistic criminality.

5.2 Past Persecution and Future Risk (Immigration Rules para 339K)

The appellants relied on Immigration Rules para 339K, which provides that past persecution is a “serious indication” of a well‑founded fear of future persecution, unless there are good reasons to think it will not be repeated.

The Court accepted, in principle, that:

past trafficking is highly relevant; and
there is a well‑established doctrine that past persecution can indicate future risk.

However, the Court’s analysis implicitly qualifies this in two ways:

The type of risk must persist in a Convention‑relevant way:
- Past trafficking suggests ongoing vulnerability but only indicates a future Refugee Convention risk if the same kind of persecution, for the same Convention reasons, is likely to recur.
- Here, the Court found no evidence that traffickers in the Philippines target former victims as such, or that EAV’s or GMP’s past victim status made them more susceptible on a Convention ground (para 59–60).
Good reasons why repetition may not occur:
- In GMP, the FtT found factual “good reasons” to think that re‑trafficking would not recur because she would not go abroad again at all (para 61).
- In EAV, even if re‑trafficking were a risk, it was not persecution “for reasons of” PSG membership; so the Refugee Convention was not engaged.

Thus para 339K does not override the foundational requirement of a Convention nexus, nor does it override clear factual findings that materially reduce or remove the risk.

5.3 Country Policy and Information Notes (CPIN) and PSG Recognition

The SSHD’s policy position, as reflected in the November 2022 CPIN on the Philippines, is that:

“potential victims of trafficking” are not a PSG; but
women and children trafficked for sexual exploitation are likely to form a PSG because:
- their experience of sexual exploitation is a past, immutable characteristic; and
- social attitudes in the Philippines mean they are perceived as a distinct group (often with stigma).

The CPIN is notably silent on those trafficked for forced labour or domestic servitude, such as EAV and GMP (para 33).

The Court of Appeal:

did not formally endorse the CPIN’s PSG analysis, but
accepted for the purpose of these appeals that the appellants could be treated as members of a PSG (female former trafficking victims) (para 52);
nevertheless dismissed the appeals because:
- in EAV’s case, there was no nexus between that PSG membership and the risk of future persecution;
- in GMP’s case, there was no real risk of re‑trafficking on the facts.

The Court did, however, note that there was no “clear evidence” that former victims of trafficking for labour exploitation are perceived in Philippine society as having a distinct identity (para 52). Future claims may therefore need stronger expert evidence to establish the PSG limb where sexual exploitation is not involved.

6. Impact and Significance

6.1 Clarifying the Nexus Requirement in Trafficking‑Based Asylum Claims

The key legal principle emerging from EAV & GMP is that:

A risk of (re‑)trafficking that arises primarily from economic vulnerability or poverty does not, without more, constitute persecution “for reasons of” membership of a particular social group or any other Refugee Convention ground – even where the applicant has previously been trafficked.

This has several practical consequences:

A positive NRM conclusive grounds decision is not, by itself, sufficient to establish a Refugee Convention claim. It establishes that trafficking (and hence serious harm) occurred, but:
- does not establish persecutor motivation; and
- does not prove that any future risk is Convention‑related.
Asylum representatives must go beyond evidence of:
- past trafficking; and
- generalised economic vulnerability,
to show:
- that the applicant is targeted as a member of a particular social group; or
- that their past victim status places them in a distinctive position of susceptibility compared with the general population.
Claims that “I will have to go abroad because I am poor, and there I may be trafficked again” will generally be viewed as cases of economic migration plus criminal risk, not as Refugee Convention persecution, unless a Convention nexus can be separately established.

6.2 Limits of the HJ (Iran) Analogy

The judgment sharply delineates the limits of relying on HJ (Iran) outside the context of sexual orientation (or comparable innate characteristics). Its approach suggests that:

HJ (Iran) applies where the behaviour in question is the expression of a protected, core aspect of identity – such as sexuality, religion, or fundamental political beliefs.
It does not readily apply to behaviour that is essentially a response to economic conditions, even if that behaviour exposes a person to grave harm (e.g. migrating abroad for work out of poverty).
The Convention does not guarantee protection against all serious harms that might result from poverty‑driven decisions, unless those harms are intentionally inflicted (or tolerated) for a Convention reason.

6.3 Territoriality and Cross‑Border Exploitation

On the positive side for claimants, the Court confirms that:

the fact that the ultimate exploitation will occur abroad (e.g. in the Middle East) does not necessarily preclude a finding of persecution in the country of nationality; and
the recruitment, deception, and abuse of vulnerability that start in the country of origin can be viewed as part of the persecutory process (para 57).

This is significant in an era where global labour migration and trafficking are tightly interwoven. It leaves room for future claims where:

the recruitment networks are deeply embedded in the country of origin;
the state is demonstrably unable or unwilling to dismantle or control these networks; and
the targeting of particular groups (e.g. women of a particular ethnicity, caste, or social status) can be shown.

6.4 Distinguishing Modern Slavery Protections from Refugee Status

The case underscores a structural tension in UK law:

The Modern Slavery / NRM regime focuses on:
- identifying victims of trafficking and slavery;
- providing support, assistance and recovery periods; and
- granting temporary status such as Discretionary Leave to Remain.
The Refugee Convention regime is narrower: it protects against persecution for specified reasons; it is not a general remedy for all serious harms or human rights abuses.

Many victims of trafficking will thus:

qualify for support and temporary leave under modern slavery frameworks; but
fail to qualify as “refugees” where:
- their vulnerability arises from poverty or generalised crime, and
- they cannot demonstrate a Convention nexus.

This judgment confirms that distinction and may prompt closer scrutiny of how long‑term protection needs of trafficking victims are addressed if they do not fit neatly into the Refugee Convention categories.

6.5 Evidential Demands for Future Trafficking‑Related Asylum Claims

For practitioners, the decision indicates that successful re‑trafficking asylum claims will increasingly require:

Specific expert evidence on:
- how former trafficking victims are viewed in their home society (stigma, social exclusion, gendered dynamics);
- whether they are perceived as a distinct social group; and
- whether traffickers specifically seek out known past victims because they are easier to control or because of other societal factors.
Evidence of targeting linked to Convention grounds, such as:
- gender (e.g. systemic targeting of women from particular regions or backgrounds);
- ethnicity, caste or religion; or
- membership of a discrete social group such as women stigmatised as “fallen” due to past exploitation.
Clear factual narratives about:
- what the applicant is realistically likely to do on return (work, residence, family support); and
- why, even in light of past experiences, they will be exposed to recruitment and exploitation again.

In GMP, the detailed factual assessment at FtT level – about her children’s independence, financial coping strategies, and her psychological recovery – proved decisive. This demonstrates how central granular, evidence‑based fact‑finding is to re‑trafficking claims.

7. Complex Concepts Explained

7.1 “Well‑Founded Fear” and “Real Risk”

A fear is “well‑founded” if, on the evidence, there is a real risk that the feared harm will occur. This does not mean “more likely than not”, but it must be more than speculative. Tribunals assess all the evidence – personal testimony, country reports, expert evidence – to decide whether that threshold is met.

7.2 Particular Social Group (PSG)

A PSG is a group within society that:

shares an immutable characteristic (e.g. sex, race, past experience such as having been trafficked) or a fundamental belief (e.g. political conviction); and
is seen by the society in question as distinct (e.g. through stigma, legal discrimination, or social labelling).

Membership of a PSG is treated like race or religion in asylum law – a ground on which persecution may be inflicted. But it is not enough simply to identify a group; the persecutor’s actions must be for reasons of that group membership.

7.3 Nexus: “For Reasons of”

The “nexus” requirement asks: Why is this person at risk? Is it:

because they are poor and exploitable in a general way? or
because they are, for example, a woman perceived as a “fallen” victim of trafficking and targeted for that reason?

The Convention only protects where the persecutor’s effective reason for inflicting or condoning harm is linked to one of the listed grounds – race, religion, nationality, political opinion, or PSG.

7.4 Persecution vs. General Hardship

“Persecution” involves serious harm that a person cannot reasonably be expected to tolerate, coupled with a failure of state protection. It is distinct from:

poverty or generalised hardship affecting large segments of the population;
ordinary crime, unless linked to a Convention reason and coupled with an ineffective state response.

Trafficking and modern slavery – involving extreme exploitation and loss of liberty – almost always reach the level of persecution. But they do so for Refugee Convention purposes only if the other elements (nexus, state failure) are also present.

7.5 National Referral Mechanism (NRM)

The NRM is the UK’s framework for identifying and supporting victims of trafficking and modern slavery. A “conclusive grounds” decision that someone is a victim:

triggers support and potential leave under the modern slavery regime; but
does not automatically make the person a refugee; a separate Refugee Convention analysis is required.

7.6 Material Error of Law

The Upper Tribunal can only set aside a FtT decision if there is a material error of law – for example:

misapplying the legal test (e.g. treating poverty as persecution without showing Convention nexus);
ignoring relevant evidence or taking into account irrelevant matters; or
reaching a conclusion that is irrational on the evidence.

If the FtT merely reached a conclusion that another judge might have decided differently but which was legally open on the evidence, the UT and higher courts will not interfere.

8. Conclusion

EAV & GMP v SSHD is a significant Court of Appeal authority on how asylum law treats the risk of re‑trafficking, especially where that risk is driven by economic necessity.

The judgment confirms that:

Trafficking can constitute persecution, and its process often begins in the country of origin through exploitative recruitment.
However, the Refugee Convention requires a causal link between the risk of persecution and a Convention ground. Economic vulnerability, without more, does not satisfy this requirement.
Past trafficking, even when recognised by the NRM, is a powerful indicator of vulnerability but is not enough on its own to establish refugee status. Claimants must show either:
- that they are targeted as members of a particular social group; or
- that their particular susceptibility to re‑trafficking is itself linked to a Convention ground.
Behaviour‑based asylum claims must be carefully distinguished. Where the behaviour expresses a core aspect of identity (as in HJ (Iran)), asylum law protects the right to live openly. Where behaviour is primarily economically driven (seeking overseas work), HJ (Iran) is of limited assistance.
Fact‑finding on what an applicant will actually do on return – and what risk that behaviour generates – is crucial and will be afforded considerable appellate deference, as in GMP’s case.

For practitioners and decision‑makers, the case serves as a reminder that trafficking and asylum regimes, though related, are legally distinct. The modern slavery framework may validate a person’s victim status and confer important protections, but only a carefully substantiated Convention nexus, combined with a real risk of future persecution and state failure, will justify recognition as a refugee.

In that sense, the new precedent laid down can be encapsulated as follows: economic necessity and general vulnerability to trafficking do not, without a demonstrable Convention nexus, turn a trafficking victim into a refugee, even where the risk of re‑trafficking is real.

Economic Necessity, Re‑Trafficking Risk and the Refugee Convention Nexus: Commentary on EAV & GMP v Secretary of State for the Home Department [2025] EWCA Civ 1677