UK Immigration Cases – Trafficking / Risk of Forced Prostitution
Court of appeal
Upper Tribunal (Immigration and Asylum Chamber) / AIT
SB (PSG – Protection Regulations – Reg 6) Moldova CG  UKAIT 00002
This case finds that former victims of trafficking are capable of being members of a particular social group. It is a particularly interesting case when looking at the identifying characteristics of a social group of trafficked women. It must be remembered that to fall within the protection of the convention the persecution must be by reasons of membership of a particular social group and it is not the persecution which creates the social group. Nevertheless membership of social group is found to be an immutable characteristic that can be at once independent of and the cause of future mistreatment. In this particular social group it is the shared background that lead to the characteristics that can not be changed. It is the shared background of being trafficked in that particular society which is important. The group exists independently of any future fear of persecution of former victims of trafficking or sexual exploitation, whether or not they may be at risk for that reason in the future. Because the group shares an innate characteristic which they can not change, they must have a distinct identity within the surrounding society. That is not to say that an element of general discrimination against that group is necessary. Discrimination in this context is only important in analysing the nexus between the fear and the persecution, perhaps where discrimination is an element of differential treatment and failure of state protection. There are certainly cases where general discrimination is practised against a social group and if that discrimination leads to serious harm, Refugee Status should follow. Here a ‘but for’ test is adopted: ‘but for’ the woman being the former victim of trafficking or sexual exploitation would she be at risk now. “But for” her distinct identity in the society in question she was at future risk in this case of re-trafficking. She would be at risk of re-trafficking for as long as she was identified as of that particular social group.
UK Immigration Cases – Particular Social Group
Secretary of State for the Home Department v. K; Fornah v SSHD  UKHL 46 (18 October 2006)
Islam v. Secretary of State for the Home Department Immigration Appeal Tribunal and Another, Ex Parte Shah, R v.  UKHL 20;  2 AC 629;  2 All ER 545 (25th March, 1999)
SSHD v Skenderaj  EWCA Civ 567 (26 April 2002)
Ivanauskiene’s v Special Adjudicator  EWCA Civ 1271,  INLR 1
P and M v Secretary of State for the Home Department  EWCA Civ 1640  Imm AR 84
Johnson, Re Application for Judicial Review  ScotCS 280 (03 December 2004)
UK cases on violence / trauma
Risk of suicide and potential breach of article 3 ECHR is considered in an immigration case relating to two applicants (brother and sister) suffering from post traumatic stress disorder and depression subsequent to rape in custody in Sri Lanka.
61. The upshot of the material findings and of the expert evidence which (for reasons I have given) stood unshaken, is that, although some psychiatric care is available in Sri Lanka, these two appellants are so traumatised by their experiences, and so subjectively terrified at the prospect of return to the scene of their torment, that they will not be capable of seeking the treatment they need. Assuming (what cannot be certain) that they come unscathed through interrogation at the airport, with no known family left in Sri Lanka and no home to travel to, the chances of their finding a secure base from which to seek the palliative and therapeutic care that will keep them from taking their own lives are on any admissible view of the evidence remote.
62. None of this reasoning represents a licence for emotional blackmail by asylum-seekers. Officials and immigration judges will be right to continue to scrutinise the authenticity of such claims as these with care. In some cases the Home Office may want to seek its own or a joint report. But there comes a point at which an undisturbed finding that an appellant has been tortured and raped in captivity has to be conscientiously related to credible and uncontradicted expert evidence that the likely effect of the psychological trauma (aggravated in the present cases by the devastation of home and family by the tsunami), if return is enforced, will be suicide.
63. On the present evidence, including where material the AIT’s evaluation of it, the clear likelihood is that the appellants’ only perceived means of escape from the isolation and fear in which return would place them would be to take their own lives. For reasons I have given, the concomitant findings that their fear is no longer objectively well-founded and that there exists a local health service capable of affording treatment do not materially attenuate this risk, which is subjective, immediate and acute.
This is a housing case on the meaning of ‘domestic violence’ in section 177 (1) of the Housing Act 1996. The Court considers whether the meaning of violence is limited to physical violence and finds that “domestic violence” includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm. The principles discussed are likely to be useful in other contexts such as immigration.
29. For all these reasons we consider that the specificity of the appellant’s case – which, we reiterate, relates not to the existence of a well-founded fear in her home village but to the reasonableness and safety of moving elsewhere in Kenya – has not been adequately addressed. We would add in this connection that the reasonableness of a particular relocation is not necessarily confined to what is objectively to be feared there, although that is ordinarily conclusive. There may be cases where the tribunal is satisfied that, objectively, the appellant can be safe on relocation, but the appellant is so traumatised by past events that she remains in genuine terror of being returned there. The Home Secretary, by her counsel, accepts that cogent evidence to such effect may be relevant to whether internal relocation is unduly harsh.
ECHR cases on violence / trauma
This ECHR case discusses the treatment of medical evidence of torture.
53. Firstly, the Court notes that the applicant initially produced a medical certificate before the Migration Board as evidence of his having been tortured (see paragraph 11). Although the certificate was not written by an expert specialising in the assessment of torture injuries, the Court considers that it, nevertheless, gave a rather strong indication to the authorities that the applicant’s scars and injuries may have been caused by ill-treatment or torture. In such circumstances, it was for the Migration Board to dispel any doubts that might have persisted as to the cause of such scarring (see the last sentence of paragraph 50). In the Court’s view, the Migration Board ought to have directed that an expert opinion be obtained as to the probable cause of the applicant’s scars in circumstances where he had made out a prima facie case as to their origin. It did not do so and neither did the appellate courts. While the burden of proof, in principle, rests on the applicant, the Court disagrees with the Government’s view that it was incumbent upon him to produce such expert opinion. In cases such as the present one, the State has a duty to ascertain all relevant facts, particularly in circumstances where there is a strong indication that an applicant’s injuries may have been caused by torture. The Court notes that the forensic medical report submitted at its request has documented numerous scars on the applicant’s body. Although some of them may have been caused by means other than by torture, the Court accepts the report’s general conclusion that the injuries, to a large extent, are consistent with having been inflicted on the applicant by other persons and in the manner in which he described, thereby strongly indicating that he has been a victim of torture. The medical evidence thus corroborates the applicant’s story.
ECHR Trafficking Cases
Rantsev v Cyprus and Russia (Application No. 25965/04) (Judgment of 7 January 2010)
See our useful Guide to the Court’s judgment in this case prepared by the AIRE Centre.
Siliadin v France (Application no. 73316/01) (judgment of 26 July 2005)
See our above Guide to the judgment in Rantsev v Cyprus and Russia which also discusses Siliadin v France, and our ATLeP/AIRE training paper, Damages for Victims of Trafficking Under the Human Rights Act 1998: Siliadin and Beyond.
UK – Other Trafficking Cases
This case gives guidance on the prosecution of victims of trafficking in light of Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings which requires States to provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities to the extent that they have been compelled to do so.
Kizlaite & Anor, R. v  EWCA Crim 1492 (16 May 2006)
This is an appeal against sentencing (two, four, five and six years six years) for various offences such as trafficking people to the United Kingdom for sexual exploitation and associated offences. One of the Appellant’s was herself a trafficked woman who had been beaten and raped by her co-defendant and was suffering from post traumatic stress disorder. She was only eighteen at the time of the commission of the offences and suffering from Stockholm Syndrome whereby she identified with her persecutors and cooperated with them as a survival strategy. The Judge’s comments are dismissive of her appeal which they say involved callous, systemically brutal deprivation that took place, and they further comment that sexual exploitation of others is serious and the sentences were appropriate.
International trafficking cases
VXAJ v Minister for Immigration & Anor  FMCA 234 (20 April 2006)
Applicant forced into sex slavery upon arrival in Australia from Thailand – after applicant assisted police with the prosecution of alleged Australian traffickers – whether the Tribunal misconstrued and misapplied the legal principles relevant to the existence of a particular social group – whether the Tribunal considered the operation of cultural, social, religious and legal factors bearing upon victims of sex trafficking
Streanga v. Canada (Citizenship and Immigration), 2007 FC 792 (CanLII) – 2007-07-29 Canada – Federal Court of Canada On an application for a stay of a removal order – consideration of the irreparable harm or trafficking and risk of re-trafficking if the applicant were returned to Romania
In the Matter of J-M-, Executive Office for Immigration Review (1996) (granting Chinese trafficked person asylum);
Immigration and Refugee Board of Canada, Case V5 -02904 (1997) noting that international refugee protection would be a hollow concept if it did not offer protection to Ukrainian trafficked person. (Case summary only)
Litvinov v. M.B.I., the Federal Court Trial Division granted asylum to a victim of forced prostitution on the basis of membership in a particular social group Litvinov v. M.B.I, (June 30, 1994) (S.C.P.B., IMM-7488-93) (Case summary only)
International Particular Social Group cases
PSG Cases – Australia
A v Minister for Immigration and Ethnic Affairs  HCA 4;  INLR 1; (1997) 190 CLR 225; (1997) 142 ALR 331 (24 February 1997)
Refugee Review Tribunal unreported RRT N97/19046 (16 October 1997)
Sarrazola v Minister for Immigration and Multicultural Affairs  FCA 1134 (6 October 1999)
Sarrazola v Minister for Immigration and Multicultural Affairs  FCA 919 (23 August 2000)
Chen Shi Hai v Minister for Immigration and Multicultural Affairs  HCA 19; 201 CLR 293; 170 ALR 553; 74 ALJR 775 (13 April 2000)
Minister for Immigration and Multicultural Affairs v Sarrazola  FCA 263 (21 March 2001)
Minister for Immigration v Khawar  HCA 14; 210 CLR 1; 187 ALR 574; 76 ALJR 667 (11 April 2002)
S v Minister for Immigration and Multicultural Affairs  HCA 25; 217 CLR 387; 206 ALR 242; 78 ALJR 854 (27 May 2004)
PSG Cases – Canada
Canada (Minister of Employment and Immigration) v Mayers (1992) 97 DLR (4th) 729
Canada (Attorney General) v Ward (1993) 103 DLR (4th ) 1
Cheung v Canada (Minister of Employment and Immigration)  2 FC 314
This is a Court of Appeal decision useful not for what it says about the Chinese one child policy enforced sterilisation in the mid eighties but for its non formalistic definition of a social group. They found ‘that they share similar social status and hold a similar interest which is not held by their government. They are identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a women’s reproductive liberty is a basic right ranking high in a scale of values’. The phrase has echoes of the words often used in UK jurisprudence, that is the group must have an immutable characteristic which they can not be required to change. The Court cite with approval an earlier case which set out a more structured approach to the test there being defined as a natural or non natural group of persons with similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity, interests, often interests contrary to those of the prevailing government and sharing basic, innate, immutable characteristics, consciousness, and solidarity or sharing a temporary but voluntary status with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it.
PSG Cases – New Zealand
In re GJ, Refugee Appeal 1312/93 (NZ)  INLR 387
The Appellant in this case was a gay Iranian man. The Court finding that those who are or suspected of being gay are punished by the authorities with extreme severity went on to find whether that punishment would be a reason for their membership of a particular social group. The decision is a very lengthy one and the relevant sections are at pages 11 onwards. The Court undertakes a review of the jurisprudence of Germany, the Netherlands, Sweden and Denmark as well as that in the United Kingdom that it finds to be in disarray as well as its own jurisdiction of Canada and that of the United States of America and of Australia. The decision is interesting but it rejects the argument that a social group is defined by the external perceptions of that group at large by society or by agents of persecution this would render social groups almost meaningless as any group perceived by society to be one would attract the protection of the convention. Instead the Tribunal backed the purpose of the convention that particular social group is firmly wedded to the principle of the avoidance of political discrimination. There is a nexus between who the persons in that group are and what they believe and the risk of serious harm. Here they found that sexual orientation was a characteristic which was innate and fundamental to identity and human dignity and to deny human dignity in any key way brought gay Iranians under the protection of the Refugee Convention.
Refugee Appeal No 71427/99 (NZ)  INLR 608
This appeal concerned an Iranian woman who suffered serious and persistent beatings over a long period from her husband who worked for the state. The analysis of persecutions is interesting taking a holistic approach in that the purpose of the convention is the assurance of basic human rights without discrimination and that the sustained or systemic denial of basic human rights and the demonstrative failure of state protection is persecutory. It finds that the accumulative affect of the Iranian policy of gender discrimination and enforcement of gender based norms against women as a group in Iran is of a nature which permits a finding of persecution in the sense of a sustained or systemic violation of basic human rights, though this particular Appellant actually won because she was being seriously beaten. In respect of particular social group the Tribunal certainly did not find that women in Iran in general are a particular social group but that certain categories of women are. Once again the concept of an immutable characteristic is to the fore though this phrase is not used in this decision. The Tribunal found at paragraph 108 that the ‘evidence relating to Iran establishes that the overreaching characteristic of those fundamentally disenfranchised and marginalised by the state is the fact that they are a woman. This is a shared, immutable, internal defining characteristic. We find that the particular social group is therefore within’. The Tribunal helpfully point out that if one is found to be a member of a particular social group the persecution feared must be because of membership of that group there must be a nexus between either the serious harm occurring by reason of membership of that group or by reason of failure of state protection.
The Appellant in this case was a Bedoon who lived in Kuwait and claimed not to have Kuwaiti nationality but to be stateless and feared discrimination and persecution on account of his Bedoon ethnicity. It was found that the Kuwait authorities do in fact deny Bedoon political and other rights and nationality but that is simply because Kuwaiti nationality law follows the principle of Jus Sanguinis and it is not by reason of any malignancy or malice. This is important because it informs the finding that Bedoon are not a particular social group. Their problems are not because they are Bedoon but because Kuwaiti nationality law does not grant nationality to blood ties going back many years. In this case it was argued that the uniting factor of the immutable characteristic was the persecution and this argument was rejected as circular. “The submission is that because stateless persons have no right to be in a country, are expelled and barred from re-entry, the individuals concerned are members of a particular social group and that the cause of their problem is their membership of the group. This is an artificial, if not circular construct and refugee law in this regard is clear. A social group must exist independently of, and not be defined by, the persecution” Of course if there was a nexus between the persecution, that is if there was a link between the denial of nationality because of Bedoon ethnicity rather than because they do not qualify, the case might have been decided differently. Please note that the UK’s Asylum and Immigration Tribunal took a different view on the facts of a very similar case.
Refugee Appeal 74665/03  INLR 629
The Appellant in this case was an Iranian who claimed he would be at risk of persecution in Iran by reason of his sexual orientation. This appeal provides an extremely structured approach as to the definition of persecution in particular in cases of sexual orientation. It looks at issues of non discrimination and is particularly helpful given our own jurisprudence which is only beginning to take on board such concepts the issues as to whether self denial or discretion can mitigate against the granting of international protection. It follows the previous decisions of this jurisdiction in finding homosexuals in Iran are a recognisable social group united by a shared internal characteristic and that as long as that is a contribution to their being persecuted that is whether it is a sole cause, the main cause, a direct cause, indirect cause or a ‘but for’ cause the convention ground can be identified as a relevant cause of the risk of persecution.
PSG Cases – USA
In re Acosta (1985) 19 I&N 211
This is one of the earlier decisions looking at a particular social group and taking into account the views of UNHCR and of the plain language of the convention. The phrase is interpreted as connoting persons of similar backgrounds, habits or social status which could perhaps overlap the other convention grounds. Each of the convention grounds describes persecution aimed at an immutable characteristic which is either beyond the power of an individual to change or is fundamental to the individuals identity or conscience. Race, religion, nationality and political opinion can all be considered immutable characteristics. Once again it is not the persecution which creates the social group but it is the case that persecution occurs because of or by way of membership of that group.
In re Kasinga (1996) 21 I&N Dec 357
In this review case from the United States of America the board have considered the case of a woman who feared female genital mutilation. The conclusion was that FGM is persecutory and that the Applicant was a member of a social group consisting of young women of a particular tribe who had not had FGM practised by that tribe, and who opposed the practice. Therefore her fear of persecution was on ‘account’ of her social group. Following Acosta the common characteristics which either cannot be changed or should not be required to be changed were being a young woman and a member of the particular tribe (these characteristics can not be changed). The characteristic of having intact genitalia is one that is so fundamental to the individual identity of a young woman that she should not be required to change it. Given that FGM is practised in at least some significant part to overcome sexual characteristics of young women in the tribe who have not been and who do not wish to be subject to FGM, her persecution is on account of her status as a member of the defined social group. It is tempting perhaps to analyse the case in terms of the persecution creating the social group but actually a correct analysis requires a finding of whether the shared characteristics are those which motivate an agent of persecution to seek to overcome or otherwise harm an individual. In this case it was the element of opposition of the applicant to the practice of FGM which defined the group.
Abankwah v INS 185 F. 3d 18 (2d Cir 1999)
In this particular case once the Appellant had a fear of female genital circumcision. It was contended that that fear was for purely personal reasons (she was going to be a queen mother and had had premarital sex and would therefore be punished). The case says little on particular social group (“women of the Nkumssa tribe who did not remain virgins until marriage.”) and succeeded primarily on a finding that her fear of persecution was objectively reasonable.
Gao v Gonzales US 440 F.3d 62 (2d cir. 2006)
Khadija Mohammed v Gonzales 400 F. 3d 785 (9th Cir 2005)
This also is a case whereby the Applicant feared FGM. Here the board looked at social group once again and considered whether the persecution was by reason of membership of a social group. Given 98% of females of that country had suffered FGM they considered whether they could say that in certain circumstances females in general would constitute a particular social group. They found that gender is as much an immutable characteristic as for example homosexuality. The board found Women in this circumstance could be a social group as the causation of the harm was clear. The appellant only suffered FGM because she is female. The persecution is gender based. The case is interesting because this Applicant had already suffered FGM and of course that would not be repeated were she returned to her home country. The board found that FGM in common with perhaps forced sterilisation must be considered a continuing harm that renders an Applicant eligible for asylum without more. Such ongoing harm is differentiated from a short spell of imprisonment or a beating FGM is found to be permanent and continuing persecution, it is gender persecution to overcome a sexual characteristic of a young woman. The board did not actually decide the claim but referred it for reconsideration.