Trafficked Persons as Convention Refugees: Opportunities and Obstacles in Asylum Claims based on a Risk of (Re-)Trafficking

While it is well-accepted that individuals may be at risk of (re-)trafficking and can claim asylum on those grounds, difficulties in understanding the legal and factual circumstances underpinning these claims may lead courts and tribunals to reject them or award claimants only humanitarian protection rather than refugee status. This article examines reported and unreported UK case law on the risk of (re-)trafficking, tracing lines of argument in the case law which have the potential to extend protection to more claimants, as well as types of reasoning which present obstacles to trafficked persons’ asylum claims. The article outlines how practitioners may take advantage of the former and challenge the latter. More specifically, the article considers the future risk analysis, the state protection enquiry, and the issue of establishing a nexus to Refugee Convention grounds. It shows that vulnerability reasoning employed in the future risk analysis can extend protection to male trafficked persons, as well as persons without a prior experience of being trafficked who may, however, be at risk of being trafficked in the future, and that it can inform the internal protection enquiry. The article also argues that practitioners should consider whether proposed state protection measures effectively counter trafficked persons’ vulnerabilities and whether such measures are, in fact, provided by the country of origin. Finally, the article highlights the relevance of the vulnerability analysis for the nexus enquiry, showing how it can assist the argument that trafficked persons are members of a particular social group.