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JO (internal relocation – no risk of re-trafficking) Nigeria
 UKIAT 0025
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 18 June 2004
Date Determination notified: 10 Sept 2004
Dr H H Storey (Vice President)
Mr J G Macdonald
Dr T Okitikipi
Representatives: Miss N Finch of Counsel instructed by Brighton
Housing Trust for the appellant; Mr J Gulvin, Home Office Presenting Officer,
for the respondent.
DETERMINATION AND REASONS
|Secretary of State for the Home
- The appellant, a national of Nigeria, born on 22
August 1986, appeals against a determination of Adjudicator, Mrs R.J. Morris,
dismissing her appeal against a decision refusing to grant asylum, although
granting limited leave until 21 August 2004.
- The basis of the appellant's claim was that having
endured ill-treatment for many years from her stepmother she sought assistance
in achieving a better life from a woman who lived in her village.
Unfortunately this woman deceived her, promising her work abroad as a
hairdresser but arranging instead for her to be trafficked for prostitution.
The woman in question had taken her and three other young girls first to
Morocco, then Spain and then to Italy. In 2002, when aged fifteen, she was
forced to work in Torino, Italy, for seven months as a prostitute. The woman
concerned told her that she was expected to pay her back US$ 40,000, this
being the cost of taking her to Torino. When the appellant managed to escape
and live with a friend, working as a hairstylist, the woman concerned tracked
her down, beat her up and demanded her money. The appellant with help from
friends managed to obtain a false British passport with a view to travelling
via the UK to Canada.
- Although considering the appellant's account vague,
inconsistent and "probably not truthful in every particular area", the
Adjudicator accepted that she had indeed been the victim of child trafficking
and had been forced to work as a child prostitute. She then reached two
separate conclusions, one under the 1951 Refugee Convention, one under the
1950 Human Rights Convention. Under the Refugee Convention she decided that
even taking the appellant's claim at its strongest, she could not qualify,
since "the alleged particular social group of young Nigerian women is not
sufficiently set apart from other Nigerian woman (sic). Additionally I do not
find the group exists independently of the persecution claimed". Under the
Human Rights Convention, the Adjudicator held that since the appellant had
limited leave to remain, there was no existing threat to any of her Convention
- No challenge has been made to the Adjudicator's
dismissal of the human rights grounds of appeal. Whether simply by virtue of
the fact that this was a s.69(3) appeal or because a person with limited leave
cannot be said to be under imminent threat of removal, dismissal of the human
rights grounds of appeal was plainly correct.
- As regards the asylum grounds of appeal, Miss
Finch's submissions were essentially threefold. The first was that the
Adjudicator had erred in not accepting that the appellant had experienced past
persecution; the second was that she had failed to consider whether the
appellant faced a real risk of future persecution in the form of being
re-trafficked; and the third was that she had wrongly decided the appellant
was not a member of a particular social group. This was not the order in which
Miss Finch put her submissions, but it seems to us both convenient and logical
to deal with them in this order.
- In relation to the first submission, we would accept
that the Adjudicator's treatment of the issue of past persecution was flawed.
At paragraph 26(vi) she appeared to avoid making any finding. Her reason for
doing so was that there was insufficient evidence as to how the appellant's
injuries were sustained or by whom (stepmother or the woman who forced her
into prostitution). However, since she did accept that child traffickers did
ill-treat their victims and did go on to accept the "core " of the appellant's
account as credible, it seems to us sufficiently clear that she fully accepted
the fact of past persecution.
- In relation to the second submission, however, we
think the grounds accurately identify a more serious flaw. The Adjudicator
nowhere addressed the issue of risk on return. Arguably, by virtue of saying
she was prepared to accept the appellant's case at its highest, the
Adjudicator can logically be taken to have accepted a real risk of persecution
on return. In line with this argument, the Adjudicator at paragraphs 28-30
could be seen as finding that the only reason why the appellant did not
succeed under the Refugee Convention was that she had not shown that she was a
member of any particular social group.
- However, if one assumes that this was the
Adjudicator's position, then it was one which was not supported by any
identifiable reasons. It is necessary, therefore, for the Tribunal to assess
for ourselves whether, even fully accepting the appellant as credible, she had
shown she faced a real risk of persecution.
- Basing ourselves on the Adjudicator's positive
credibility findings we see no difficulty in accepting that she would face a
real risk of serious harm on return to her home area. For one thing, although
she is now nearly eighteen, it was reasonable to assume that her stepmother,
who had frequently ill-treated her in the past, would continue to ill-treat
her. For another, even though the woman who had forced her into prostitution
appeared to travel frequently to other countries, her home village was the
same as the appellant's. Either she would be there when the appellant returned
or it was reasonably likely she would come to learn of the appellant's return.
Then there would be the matter of the US$40,000 debt which this woman had
already used physical violence against the appellant in order to extort. Given
the apparent ease with which this woman was able to take the appellant when
still a minor abroad, it was reasonably likely she would be able to harm or
misuse her again. Although, as the Adjudicator noted, the Nigerian authorities
in recent times had taken some specific measures to protect young women
against forced trafficking, we see no error in the Adjudicator's apparent
acceptance that in the particular circumstances of this case she would face
further serious difficulties in her home area.
- However, that leaves the issue of whether the
appellant would be able to avoid persecution by means of internal relocation.
Although this issue was not raised discretely either in the Reasons for
Refusal letter or in the Adjudicator's determination, it has always been the
appellant's contention that wherever she went in Nigeria the woman from her
village who had originally trafficked her would find her and inflict further
harm on her. At the outset of the hearing we informed the parties that we
considered the issue of internal relocation in this case to be an "obvious"
point in the sense outlined by the Court of Appeal in Robinson  ImmAR 568.
- Miss Finch sought to submit that wherever the
appellant went in Nigeria she would be at risk since she was a vulnerable
young woman scarred by her past experience when still a child of forced
prostitution. Although nearly eighteen, she was still a minor and as such
should not be returned unless there were adequate reception arrangements. She
highlighted parts of the objective country materials which described the
extent of discrimination faced by women in Nigeria and young women in
particular. Alienated from her home village by the twin threat posed by her
stepmother and the women who trafficked her originally, the appellant would be
socially isolated and economically pressured to become once again a prostitute
and therefore someone likely to be re-trafficked or otherwise exploited by
criminal gangs. It was likely that the woman who trafficked the appellant and
three other young girls in her home village had national as well as
international connections with criminal gangs involved in trafficking rings.
The appellant had never been to school albeit she had had some education in
- Mr Gulvin contended that the appellant would have
a viable internal relocation alternative. It was not plausible to suggest the
family members or the woman who trafficked her in her home village would be
able or would have the motivation to locate her elsewhere in Nigeria. Even if
they did, the evidence indicates that the authorities in Nigeria would be able
to afford her effective protection. Furthermore, she was now nearly eighteen.
- We consider that Mr Gulvin's main submissions on
this issue are valid. There is no proper evidential basis for concluding that
it would be unduly harsh for this appellant to be expected to avoid harm in
Nigeria by relocating. There was no evidence to suggest that her father and
stepmother would seek her out. Nor was there any evidence that the woman who
trafficked her had the wherewithal to pursue her or to get connections of hers
to look out for the appellant in the major cities or elsewhere in Nigeria.
Although background evidence shows that trafficking of women is a very serious
problem in Nigeria, with over 40,000 women said to have been trafficked, it
remains that relative to the number of young women in Nigeria it is only a
small percentage who are trafficked. Even if the Nigerian authorities have
much more to do before they can say that various anti-trafficking measures
they have introduced or promised are having a real effect, there was simply no
proper basis for finding that this appellant would be subject once again to
abuse by traffickers. It is true that she had been trafficked once before and
we are also prepared to accept, despite lack of full medical evidence, that
her experiences of trafficking and forced prostitution have scarred her
physically, emotionally and psychologically. However, on the appellant's own
account she was very clear that she had no intention whatsoever of returning
to prostitution; when she had first escaped the clutches of the woman who had
trafficked her in Italy, she had then begun work as a hairdresser.
- Her experiences of work as a hairdresser both in
her home village before she left and in Italy also meant that she had some
occupational skill or experience to assist her in obtaining future employment.
Although still under eighteen and still, therefore, a minor, the fact that she
was now seventeen would mean she would be able to join the employment market
as an adult. Although she had not been to school in Nigeria, she had made some
educational progress during her time in the UK. Whilst the objective materials
do identity significant areas of life in which women, especially young women,
experience discrimination, they do not demonstrate that young women per se
face a real risk of serious harm or undue hardship in Nigeria.
- Thus there was no proper basis for a finding that
the appellant would face a real risk of serious harm outside her home area.
- Accordingly, even if the Adjudicator is taken to
have accepted a real risk of persecution on return, (by virtue of having
accepted the appellant's case "at its highest"), such a finding was wrong in
law by reason of having no proper evidential foundation.
- In the light of our finding that the appellant
does not face a real risk of serious harm, there is no need for us to give
discrete consideration to the issue of whether the authorities (outside of the
appellant's home area) in Nigeria could effectively protect her against such
- Nor is it necessary for us to make a finding on
the issue of whether for Refugee Convention purposes the appellant forms part
of a particular social group. It may be apposite, however, for us to indicate
our provisional view of this issue. Whilst we do not think that Miss Finch
correctly identified any error of law in the Adjudicator's formulation of the
law relevant to identification of a particular social group – in particular we
do not agree that the Adjudicator anywhere assumed that a particular social
group (PSG) had to be cohesive – we do think there was arguable merit in her
submission developed before us at the hearing that women in Nigeria form a
particular social group. We agree with her and Mr Gulvin that trafficked women
do not qualify as a PSG, since what defines them is essentially the fact of
persecution. However, we do think it arguable that Miss Finch successfully
identified the existence in Nigeria of a combination of legal and social
measures of discrimination sufficient to demarcate women as a particular
social group. We accept that these may not be as comprehensive as those
identified by the House of Lords when they reached their judgment in Shah
and Islam  2 AC 629 as obtaining for women in Pakistan. However, in
our view their lordships made clear in that judgment that the PSG category
should not be interpreted narrowly. The fact that since Shah and Islam
women have not been found by the IAT or the courts to be a PSG in more than
one or two countries suggests to us that too little regard has been paid to
the fact that all that was required in Shah and Islam (per Lord
Hoffman) was the existence of legal and social conditions which were
discriminatory against women. Possibly also there has been too much focus on
rejecting PSG arguments by reference to sub-categories (e.g. women at risk of
FGM or, as, at one point in this case, trafficked women). The more delimited
the proposed category, the greater the prospect there is of circularity in
- Ms Finch submitted that in current-day women in
Nigeria, although guaranteed equal rights under the Constitution, face legal
impediments in obtaining a passport (without the authorisation of a male
family member) and in acquiring property and obtaining employment on equal
terms with men. Depending on whether they live in Nigeria and what religion
they are born into, they face a range of customary and religious laws which
deny them full legal capacity to enter into contracts they also face social
and economic discrimination. We think her analysis was arguable and identifies
the existence of legal and social conditions which are discriminatory against
women and which exist independently of any persecution some women may face in
- However, even if we had accepted that the
appellant is a member of a particular social group and had thus rejected the
Adjudicator's conclusions that she was not a member of a particular social
group, this does not avail the appellant in her appeal, because there was no
proper evidential basis for concluding that she faced or faces a real risk of
- Insofar as it remains the case that the appellant
is a minor, there is no challenge raised in this case to the Adjudicator's
conclusion that the appellant's human rights were not at risk currently. By
virtue of the fact that she has limited leave at least until she turns
eighteen, she is not at real risk of being returned as an unaccompanied minor.
Although following the principles set out in Saad, Diriye, Osorio
 INLR 34 we have to assess the appellant's s.69(3) hypothetically, as if
she would be returned immediately, we have not considered that as she is now
seventeen years old, her young age would place her at any real risk of serious
harm or undue hardship.
- For completeness we should also record that we
took careful account of the reports produced by social worker Miss L. Chitty.
We would express our gratitude to her for the care she has taken in producing
those reports, the second at very short notice. We are prepared to accept on
the basis of her own experience of cases of young girls in the UK who have
been trafficked that there is for such persons, an increased risk of
re-trafficking. However, Miss Chitty does not purport to have any expertise in
relation to risk of re-trafficking of young women upon return to Nigeria away
from the areas from where they were originally trafficked, and in our view her
evidence does not assist us in deciding the central issue we have had to
address in this case.
- For the above reasons, this appeal is dismissed.
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