Anonymised Summary of Legal Opinion

Factual and Procedural Background

Two linked appeals concern two female nationals of Country A (referred to here as Appellant A and Appellant B) who were previously trafficked for the purposes of domestic servitude from Country A to Country B and subsequently to Country C. Both have positive findings from the competent national authority that there are conclusive grounds they were trafficked for domestic servitude. Each appellant contends that, if returned to Country A, economic necessity would compel her to seek employment in the Middle East and thereby create a real risk of re-trafficking; they assert this gives rise to refugee status under the 1951 Refugee Convention.

Both asylum claims were rejected by the Respondent. Appellant A's appeal to the First-tier Tribunal (FtT) succeeded, but on appeal by the Respondent the Upper Tribunal (UT) set aside that decision for material error of law and, on re-making the decision, dismissed the appeal. Appellant B's appeal to the FtT was dismissed and the UT dismissed her appeal. Permission to appeal to the appellate court was granted following oral hearing.

Legal Issues Presented

1. Whether former victims of trafficking who, on return to Country A, would be driven by economic necessity to seek work abroad (and thereby face a real risk of re-trafficking) qualify as "refugees" within the meaning of Article 1(A)(2) of the 1951 Refugee Convention.
2. Whether economic necessity that results in a voluntary decision to seek work abroad can be causally linked to membership of a "particular social group" (former victims of trafficking) so as to amount to persecution for a Convention reason.
3. Whether the FtT made material errors of law in its reasoning (in particular, in the case of Appellant A) and whether the UT's re-making of the decision correctly applied relevant legal principles.

Arguments of the Parties

Appellants' Arguments (represented by Attorney Naik)

• Both appellants are (and have been treated as) members of a particular social group as former female victims of trafficking; it would be unfair for the Respondent to resile from that position.
• The FtT in Appellant A's case was correct: the risk of re-trafficking arises from a continuous course of conduct that begins in Country A (recruitment, deception) and continues to exploitation abroad; the Trafficking Protocol and related instruments recognise that recruitment and deception in the country of origin are integral to trafficking.
• Consent to migration or work, past or future, is legally irrelevant where the means of trafficking (deception, coercion, abuse of vulnerability) are used; consequently, future consent induced by the same methods should also be disregarded when assessing risk.
• Past persecution (trafficking) is a serious indicator of a well‑founded fear of persecution in the future unless there are good reasons to consider the persecution will not be repeated (citing the Immigration Rules paragraph quoted in the decision).
• It does not matter if the risk arises from the individual's choice to behave in a particular way (e.g. seeking work abroad) so long as the real risk of persecution flows from a Convention ground; case law supports that choice-based risk can still give rise to protection.
• In Appellant B's case, the FtT's fact-finding that she would not seek work abroad was said to be tainted by errors of law (notably misunderstanding the irrelevance of consent in trafficking contexts) and by improper assumptions about how a victim would behave after persecution.

Respondent's Arguments (advanced by Judge Murray)

• The UT decisions in both cases were correct for the reasons stated: the FtT's fact-finding in Appellant B's case (that she would not seek work abroad) was open on the evidence and was fatal to her claim.
• In Appellant A's case the central difficulty is the absence of a causal link between the fear of persecution and membership of a particular social group; the risk arises from economic circumstances independent of past trafficking.
• The analogy with cases concerning protected characteristics (for example, sexual orientation in HJ (Iran)) is flawed because those cases involve innate characteristics or conduct expressing a protected characteristic, not a past experience of trafficking.
• The relevant country policy and information (CPIN) acknowledges that potential victims of trafficking do not form a particular social group (except for certain categories such as women and children trafficked for sexual exploitation), and it supports findings of sufficiency of protection in Country A relevant to the Respondent's decision-making.
• The expert evidence relied upon by the appellants was dated and did not displace the CPIN-based conclusions relied on by the Respondent.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded by first assuming, for the purposes of the appeals, that both appellants fall within a particular social group as former victims of trafficking. From that starting point, the court conducted separate analyses for each appellant.

Appellant A: The FtT had found that Appellant A would not be targeted on return but would face risk arising from "economic necessity" — namely that she would only be able to obtain low‑paid work and therefore might choose to seek employment abroad, exposing her to re‑trafficking. The UT held that the FtT's decision disclosed material error of law and re‑made the decision, dismissing the appeal.

The appellate court upheld the UT's identification of material error. The central analytic point was the requirement that persecutory treatment feared by the applicant be causally linked to a Convention ground (membership of a particular social group). The court found that economic vulnerability alone—poverty compelling someone to seek work abroad—is insufficient to establish that the persecutory treatment feared is causally linked to the applicant's membership of the particular social group. The FtT failed to explain what, if anything, made Appellant A's circumstances different from other impoverished persons such that she would be specifically at risk because of her status as a former victim.

The court accepted that trafficking is a process beginning in the country of origin (recruitment and deception), and that harms suffered abroad can be relevant; it rejected any reasoning that would treat harms occurring only outside the country of return as automatically irrelevant. Nevertheless, the decisive defect in Appellant A's case was that the factual findings did not identify a specific causal link between past victim status and the risk of future persecution: the risk was rooted in poverty, which pre‑dated and post‑dated the trafficking, and there was no finding that past trafficking made her more vulnerable than other similarly impoverished persons.

Appellant B: The FtT made specific fact-findings that Appellant B was credible but that, on the evidence, it was not reasonably likely she would seek work overseas and thus not reasonably likely she would face re‑trafficking. The UT dismissed her appeal, finding no material error of law in the FtT decision. The appellate court found no error of law in the FtT's fact-findings: the judge had given cogent reasons (family circumstances, reduced financial dependency, recovery from trauma, demonstrated resilience) for concluding Appellant B would not choose to put herself at risk by seeking employment abroad. The court therefore concluded those findings were not amenable to successful appeal.

The court also addressed submissions about the legal irrelevance of consent in trafficking contexts and the applicability of case law concerning behaviour expressing innate characteristics. It acknowledged that consent vitiated by deception is legally irrelevant, and that choice-based conduct can in some circumstances engage Convention protection. However, it distinguished those principles from the facts of these cases: the risk identified for Appellant A was driven by economic pressure rather than by membership of the particular social group, and there was no evidential finding that the appellants' past trafficking made them uniquely vulnerable compared with other impoverished persons.

Holding and Implications

DISMISSED

Holding: The appellate court dismissed both appeals. For Appellant A, the FtT's decision was set aside for material error of law and the UT's re‑made decision dismissing the appeal was upheld: the necessary causal link between membership of a particular social group (as a former victim of trafficking) and the risk of persecutory treatment on return was not established because the risk arose from economic vulnerability common to many individuals. For Appellant B, the court upheld the FtT's fact-findings (and the UT's dismissal of the appeal) that she would not, on the evidence, seek work overseas and therefore did not face a real risk of re‑trafficking.

Implications: The direct consequence is that both appellants' asylum claims were dismissed and they are not recognised as refugees under the Refugee Convention on the facts found. The court emphasised the need for a specific causal link between Convention group membership and feared persecution; poverty alone, absent some specific vulnerability attaching to group membership, will not suffice to establish refugee status. The decision does not purport to set a novel general legal precedent beyond the application of established principles to the facts of these cases.

Notes on anonymisation: All personal names, place names and other potentially identifying details from the source opinion have been replaced with generic placeholders to preserve anonymity in accordance with the summarising instructions.