UK - Upper Tribunal, 31 October 2007, SB (PSG - Protection Regulations-Reg 6) Moldova CG [2008] UKIAT 00002

Country of Decision:
Country of Applicant:
Date of Decision:
31-10-2007
Citation:
[2008] UKIAT 00002
Court Name:
Upper Tribunal
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Headnote: 

This case was the first application of Art 10 of the Qualification Directive in the UK to a case involving human trafficking. The Tribunal found that trafficking victims are capable of being members of a Particular Social Group and that both sub paragaphs of Art 10(d) must be satisfied. 

Facts: 

The applicant was a female victim of trafficking for sexual exploitation, who had been found to be at risk of treatment which would breach Art 3 of the European Convention on Human Rights (ECHR). She had been granted humanitarian leave but appealed against the refusal to recognise her as a refugee. The reasons for refusal were that she could not bring herself within the definition of a refugee not being a member of a Particular Social Group (PSG) and, although her case was ‘exceptional”, there was in general a sufficiency of portection for trafficked women and in general such women could relocate internally. The applicant had succeeded in her claim for humanitarian protection because her case was exceptional. The appeal was limited to the refugee claim. The court noted that the decision to refuse asylum had been issued after the coming into effect of the Refugee or Persons in Need of international Protection (Qualification) Regulations 2006, which by amending the domestic Immigration Rules implemented the Qualification Directive in the UK.
Other divisions of the Tribunal had previously held that trafficking victims could not in law consitute a PSG and qualify as refugees.

The determination is extremely long, recording in some detail all the submissions made by the parties. This may have been because from the outset it was designed to settle the question of law in regard to trafficking victims and PSG.

The Tribunal declined counsel’s invitation to refer to the Qualification Directive, and referred instead to the Regulations. Where necessary the reference to the relevant articles in the Qualification Directive will be given.

Decision & Reasoning: 

On the question of whether discrimination was a necessary element in defining a PSG, the Tribunal confirmed that it would adopt explanations for the term ‘discrimination’ developed in Shah and Islam. The question then was whether discrimination was a necessary factor in determing a social group. The Tribunal first considered the authorities in family as PSG, where dsicrimination was not necessary. It went on to draw a distinction between social groups based on broad characteristics like gender and groups based on a shared background which they could not change, eg a shared past experience. In the former case it is necessary to show discrimination, but not in the latter case.

On that basis, former victims of trafficking, women, children or men were capable of being members of a PSG.

Regulation 6 (1) (d) Art 10 (d) of the Qualification Directive.

The tribunal concluded that the ‘ and’  linking the subparagraphs in Regulation 6 (1) (d) should be given its natural meaning. This means that an applicant must satisfy both subparagraphs. This was held to be in accordance with the general interpretation that a PSG should always be considered against the context of the society in question.

Regulation 5(3) Art 9.3 of the Qualification Directive - Causation.

The Tribunal asked whether membership of the PSG, former victims of trafficking in Moldova was ‘an effective reason for the feared persecution.’

A possible issue as to whether the QD properly reflected the Refugee Convention was sidestepped. The Tribunal accepted that, if it could be shown that the harm feared could be shown to be “related’ to the convention reason, then causation was shown. In this case the background evidence and the facts already accepted by the Secretary of State together satisfied the Tribunal that there was a causal nexus between the applicant’s membership of a social group and the risk of future persecution. 

Outcome: 

Appeal allowed.

Other sources cited: 

UN Office of the High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, 20 May 2002.

UN High Commissioner for Refugees, Guidelines on International Protection No. 2: "Membership of a Particular Social Group" Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/02.

Case Law Cited: 

Australia - Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Anor, S151 1996

UK - Chun Lan Liu v Secretary of State for the Home Department [2005] EWCA Civ 249

UK - JO (Nigeria) [2004] UKIAT 00251

UK - MP (Romania) [2005] UKIAT 0086

UK - Montoya v Secretary of State for the Home Department [2002] EWCA Civ 620

UK - P and M v Secretary of State for the Home Department [2004] EWCA Civ 1640

UK - R (Hoxha) v Special Adjudicator [2005] UKHL 19

UK - RG (Ethiopia) v Secretary of State for the Home Department [2006] EWCA Civ 339

UK - SK (Albania) [2003] UKIAT 00023

UK - Secretary of State for the Home Department v Skenderaj [2002] EWCA Civ 567

UK - VD (Albania) CG [2004] UKIAT 00115