Women in Nigeria are generally not at real risk of being trafficked. Upon return to Nigeria, former Victims of Trafficking (VoT) are generally not at real risk of being re-trafficked. However, a detailed assessment of the circumstances of each particular case is required to assess whether a trafficked woman would be at risk of being re-trafficked upon return and if so, to establish whether internal relocation would be a reasonable alternative for her. In light of the country guidance, the Upper Tribunal held that because of her particular vulnerabilities, the appellant was at real risk of being re-trafficked upon return to Nigeria and that internal relocation would have been unduly harsh for her. Thus, the appeal was allowed and she was granted refugee status.

Appeal from the First Tier Tribunal (Immigration and Asylum)

• On 12 August 2015, the Upper Tribunal set aside the First Tier Tribunal’s decision for containing a material error of law.
• The First Tier Tribunal dismissed the appeal on 10 June 2015.
• The Appellant appealed against the Home Office (HO) refusal decision
• The HO refused the Appellant’s application for asylum on 29 October 2014 and granted her discretionary leave to remain until 29 October 2015.

No official citations of the previous stages are available.

• No information found.

Administrative law; Asylum law

The appellant, HD, was born on 30 June 1989 in the Nigerian village of Ubogu. She is a Catholic. She and her mother were daily subjected to domestic violence by her father. She had limited schooling because her parents struggled to afford the tuition fees. The family lived in a mud hut. When the appellant was age 16, a rich woman, Aunty 1, offered to take the appellant abroad to further her education. Aunty 1 brought gifts to the appellant’s family and a mobile phone to her father. Aunty 1 took the appellant to a house in Lagos where Aunty 1 and Aunty 2 lived. The appellant was then made to work as a domestic worker. She did not leave the house for the duration of her stay there (2-3 months). She was only allowed to eat leftovers and was made to sleep on the floor. The appellant experienced verbal abuse, being shouted at and cursed regularly. Though the appellant did not know how she had obtained a passport to travel to the UK, she did recall a man photographing her at the house in Lagos.

The appellant did not remember how or when she travelled to the UK. She believed this was because juju/voodoo rituals were performed on her. She believed juju/voodoo to be efficacious. She maintained she only understood she is outside Nigeria given that the outdoors temperature was significantly colder than what she was used to growing up. HO documents indicate that the Appellant entered the UK on a Visitor Visa issued on 17 November 2007.

Once in the UK, a man collected HD and forced her into domestic servitude at his family residence in London. The appellant slept on the floor, was physically abused, was given little food, and “was not allowed to leave the house or use the telephone” (para 7). Male associates of the man made inappropriate sexual advances towards the appellant in a way that made her feel afraid. She was threatened with being returned to Nigeria and imprisoned if she rejected the men. The man’s wife called the appellant’s father who shouted at his daughter and requested that she do as she was told. Otherwise, her parents ‘would have problems’ (para. 196 of the judgment). She lived in the London house for approximately 4-6 months before she escaped.

Upon escape, the appellant phoned her parents, who “begged her to return to the London house” because “they had been threatened (para 196). They feared for their lives. After fleeing the household in London, HD “had sexual relationships in exchange for food and accommodation”. She fell pregnant and had an abortion at the father’s request. The last time she was in contact with her family or anyone in Nigeria was in 2010 when her father communicated to the appellant over the phone that her mother passed away following a heart attack. In late 2012, the appellant was referred to the Poppy Project, a charity for vulnerable women involved in trafficking. Following a psychiatric assessment, she was diagnosed with “complex Post Traumatic Stress Disorder and an Emotionally Unstable Personality Disorder” (para 8).

The appellant applied for asylum on 2 January 2013. The basis of her claim was that she was a trafficking victim and that she feared serious harm, including retribution from her traffickers and being re-trafficked upon return to Nigeria. The appellant argued that she was trafficked by an Organized Criminal Gang (OCG) who had a financial interest in her rather than by an individual family member.

The HO did not dispute that the appellant had been trafficked and did not question the credibility of her account. It accepted that former VoTs “are seen as a distinct group within Nigerian society” (para 9). As such, the respondent considered that as a former VoT, HD was a member of a Particular Social Group (PSG) within the remit of the 1951 Refugee Convention. However, the HO rejected the appellant’s asylum claim because it considered that the appellant was trafficked by a number of people working together rather than by an OCG. Thus, taking account of the appellant’s specific characteristics and relying on the country guidance in the case of PO (Trafficked Women) Nigeria CG [2009], the HO considered that the Nigerian authorities would be able to offer protection against the risk of re-trafficking and that relocating in other parts of Nigeria would not be unduly harsh.

The appellant’s appeal against the HO’s refusal letter was rejected by the First Tier Tribunal. The decision was later reversed by the Upper Tribunal for containing a material error of law. The current appeal is a fresh hearing of the case with the view of updating the case of PO*.*

After hearing extensive country background information and expert evidence, the Upper Tribunal rendered its ruling, which can be divided into two main parts. The first is concerned with providing “guidance on the risk of proscribed treatment for a Nigerian victim of trafficking”. The second is concerned with determining the appeal of HD.

Country Guidance

The most important conclusions are the following:

1. Women in Nigeria generally do not face a real risk of being trafficked. (paras. 63, 188)

2. Formerly trafficked women returning to Nigeria are generally not at “real risk of retribution or of being trafficked afresh by her original traffickers”. (para. 189)

3. There is a strict requirement for a detailed assessment of the individual characteristics and particular circumstances of a formerly trafficked woman returning to Nigeria in order to establish whether she faces a real risk of serious harm upon return, namely, the risk of being re-trafficked, the risk of retribution from her original traffickers, and the risk of abuse. (paras. 146, 190, 193)

In line with Horvath v SSHD [2000], the Upper Tribunal held that a “critical and close analysis of the particular circumstances of a victim of trafficking” within the context of the society in question is necessary to assess the risk on return and the sufficiency of protection (para. 70). The Upper Tribunal also noted that the importance of such analysis is emphasized in the 2011 Trafficking Directive, the 2000 Palermo Protocol and the 2005 Anti-Trafficking Convention (para. 67). Furthermore, the Upper Tribunal followed EK (Article 4 ECHR: Anti-trafficking Convention) Tanzania [2013], which held that the UK’s obligations under the above-mentioned international legal instruments include an analysis of the severity of the anticipated harm upon return. This involves conducting a detailed examination of the particular circumstances of each case (paras. 77, 82).

4. Sufficiency of protection is available for some, but not for all, of the returned Nigerian victims of trafficking. Where a former trafficked victim is found to be at real risk of persecution, a detailed assessment of her characteristics and circumstances will be required to establish whether sufficiency of protection is available, and, if so, whether internal relocation would be a reasonable alternative for her. (paras. 146, 185)

The Upper Tribunal applied the test of sufficiency of state protection against non-state actors set out in Horvath. According to such a test, sufficiency of protection is established where the receiving state is both willing and able to provide a reasonable level of protection against the risk of persecution. (para. 70)

The Upper Tribunal clarified that for ‘sufficiency of protection’ within the meaning of the 1951 Refugee Convention to be established, it is not enough to demonstrate that “the authorities in the receiving state are doing their best” (para 71). Moreover, the level of risk faced by a VoT and the context in which state protection is to be assessed are important factors in establishing sufficiency of protection. (Kacaj (Article 3 – Standard of proof- non state actors) Albania [2001] and R (Dhima) v SSHD [2002] followed). (paras. 71-72, 172)

5. Vulnerabilities indicative of an “enhanced risk of being trafficked include, but are not limited to” (para 190):

• Rejection by the family or no supportive family present to return to;

• Being stigmatized and ostracized for having been subjected to sexual abuse;

• Being subjected to the spiritual and psychological pressures associated with taking an oath;

• Lacking a social support network;

• Displaying severe mental health conditions without access to adequate psychological support;

• Having little to no education or vocational skills enabling her to provide for herself;

• Living in material poverty and destitution;

• Displaying some or many of the factors that led to the victim being identified and trafficked originally. (paras. 168, 190-191)

6. A formerly trafficked woman faces little to no risk of being re-trafficked while living in a shelter provided by National Agency for the Prohibition of Traffic in Persons (NAPTIP) or an NGO. However, a careful assessment of the risks faced by the woman upon leaving the shelter will be required. (paras. 142, 192)

7. In cases where a former female VoT shows the markers of vulnerability described above and is thus at real risk of internal or transnational trafficking upon return to her home area, internal relocation is unlikely to be a safe and reasonable alternative for her. (paras. 141, 176, 186, 193)

The Upper Tribunal followed Januzi [2006], which states at para. 47 of the judgement that internal relocation is not unreasonable or unduly harsh where “the claimant can live a reasonable normal life judged by the standards that prevail in his country of nationality generality, and if he can reach the less hostile part without undue hardship or undue difficulty”. (para. 179) The Upper Tribunal reasoned by analogy to TD and AD (Trafficked Women) Albania CG [2016], which held that internal relocation would be unsafe and unduly harsh for the appellant because of her particular vulnerability and the circumstances of her case. (para. 79)

8. The interim country guidance in PO (Trafficked Women) Nigeria [2009] at para. 191, concerning the Nigerian authorities’ willingness and ability to protect trafficked victims, and at para. 192, concerning the risk of being re-trafficked, should no longer be followed. (para. 187)

Determination of the appellant’s case

The appeal was allowed and the First Tier Tribunal’s decision was set aside for containing an error of law (para. 226).

The appellant’s evidence supported the finding that she was trafficked for the purpose of domestic servitude by an OCG. (para. 200) Several factors, such as the possible undergoing of a voodoo ritual, point to the possibility that the appellant was trafficked ultimately for the purpose of sexual exploitation. (para. 203)

Given that HD displays a number of vulnerabilities listed in the newly laid out country guidance, she is at risk of being re-trafficked in Nigeria. (paras. 212–221). HD’s vulnerabilities include limited education and vocational skills, the lack of a supportive family and of a social network of support, psychological and mental health conditions, and lack of personal and vocational skills needed to survive on her own. (paras. 217, 220)

Internal relocation would be unduly harsh on HD given her vulnerabilities. Social and community assistance are “concentrated in areas where trafficking is rife” and their provision is in any case only short term. Anywhere else, she would face difficulties owing to isolation as well as her different language and ethnicity. (para 224)

• “The Shelley report describes Nigerian organised crime groups as multifaceted crime groups in which the trade of women is only one part of their criminal activities. She refers to female recruiters who conclude contracts with girls and women by manipulating voodoo traditions and forcing compliance through psychological as well as physical pressure. She describes Nigerian traffickers as very effective because they combine the best of both modern and older worlds by allying sophisticated forms of modern technology to tribal customs.” (para. 25)

• “The files reviewed for the purposes of his [Campana] research offer evidence of five distinct strategies adopted by madams to monitor the victims and increase their compliance: the use of force (limited in the cases under scrutiny); the alignment of incentives between madams and victims’ families (families back home may receive a financial benefit from the work of their daughter and so may have an incentive to pressure their daughter to comply with the madam’s orders); hostage-taking strategies whereby family members in Nigeria can be used as a target for retaliation; voodoo rituals (contracts are often signed before a pastor who performs rituals to sanction the agreement such rituals usually being performed in Nigeria before the journey begins) and finally direct monitoring for example sharing the same house.” (para. 34)

• “Mr Desmond related a conversation he had at a meeting in the House of Commons about domestic servitude when he was told that having a ‘house girl or boy’ to do the domestic chores was ‘equal to having the latest washing machine or dishwasher. It was a ‘must have’ to enforce one’s standing within the community’.” (para. 38)

• “It is Mr Desmond’s knowledge and experience that the ‘common profile of a typical victim of trafficking to Europe’ is likely to include some of the following characteristics:

[…]

• Have a strong Christian belief;
• Brought up in a community that practised or believed in the power of juju; […]
• Often reluctant to disclose juju details but appeared to have been subjected to a juju ceremony/ ritual oath taking.” (para. 62)

• “Since its establishment, NAPTIP has successfully prosecuted several cases.

• NAPTIP reports routine difficulty in persuading victims to divulge the names of traffickers both because of victims’ fears of supernatural consequences if they have taken a ritual oath and fear of the traffickers. The OSCE/ODIHR report records that NAPTIP does not provide meaningful protection to either victims or to their close relatives. NAPTIP is reported to have been able to circumvent the victim’s fears by arresting the men who administer ritual oaths as accomplices and then often mitigate a sentence if they act as informants and witnesses.” (para. 92)

• “Dr Agnew-Davies recounted […] that counsellors ‘learned on the job’ and had no psychological or psychiatric qualifications. […] She gave one example where NAPTIP staff suggested that where children had been fighting in locked rooms or a woman was shouting in her sleep that was because ‘evil spirits were at work’.” (para. 126)

• “Tribal and religious differences across the country, the concentration of services to assist are in areas where trafficked people typically originate from and the stigma of trafficking can preclude successful reintegration, particularly for someone with high support needs.” (para. 182)

International Law

• Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention)
• Council of Europe Convention on Action against Trafficking in Human Beings (adopted on 3 May 2005; entered into force on 1 February 2008) (Anti-Trafficking Convention)
• Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims (adopted on 5 April 2011; entered into force on 14 October 2011) (EU Trafficking Directive)
• Protocol to Prevent Suppress and Punish Trafficking in Persons Especially Women and Children supplementing the United Nations Convention against Transnational Organised Crime (adopted on 15 November 2000; entered into force on 25 December 2003) (Palermo Protocol)

UK Domestic Law

• Refugee or Person in Need of International Protection (Qualification) Regulations SI2006/2525 (adopted 18 September 2006, entered into force 9 October 2006) (Protection Regulations)
• Statement of Changes in Immigration Rules CM6918
• Immigration Rules (adopted 23 May 1994, entered into force 1 October 1994)

Previous Country Guidance

• PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132
• PO (Trafficked Women) Nigeria CG [2009] UKAIT 00046

Sufficiency of protection and assessment of risk on return

• EK (Article 4 ECHR; Anti-trafficking Convention) Tanzania [2013] UKUT 00313 (IAC)
• Horvath v SSHD [2000] UKHL 37
• Kacaj (Article 3 - Standard of Proof - non state actors) Albania [2001] UKIAT 00018
• R (Dhima) v SSHD [2002] EWHC 80
• TD and AD (Trafficked Women) Albania CG [2016] UKUT 00092

Internal relocation

• Januzi [2006] UKHL 5

Country guidance (CG) cases are a unique fact-based form of assessment and have been an integral part of the UK immigration system since 2001. They involve the evaluation of a large amount of evidence related to the general social and political conditions in a specific country, as well as the particular circumstances of an individual case. They have a binding effect on subsequent cases concerning similar issues and factual evidence (Clayton and Firth 2018: 389).

The case of HD is part of a consolidated judicial trend in the UK regarding VoTs as members of a Particular Social Group (PSG) within the remit of the Refugee Convention (see CUREDI041UK002; Christensen 2011).

HD [2016] has important ramifications for Nigerian victims of trafficking (VoTs) claiming asylum because it sets out in detail the factors that exposes them to serious risks of harm of persecutory levels on return to their home country. After ruling that the previous country guidance provided in PO (Trafficked Women) Nigeria [2009] (paras. 191-192) should no longer be followed, the Upper Tribunal provided a new approach for determining whether sufficiency of protection and internal relocation would be available. In doing so, HD [2016] strengthened the protection available for Nigerian VoTs and enhanced their chances of securing refugee status (Cronin and Hoshi 2016).

Namely, under PO, trafficked victims were presumed to enjoy sufficiency of protection on return to Nigeria unless they were facing an outstanding debt to an Organized Criminal Gang (OCG). The burden of proof was placed on VoTs to demonstrate that they were trafficked by an OCG. However, due to OCG’s clandestine and highly fluid nature, such evidence was difficult to gather. Thus, many asylum claims were likely to fail on evidential grounds. Indeed, in HD, the appellant’s claim for asylum was originally rejected because the HO argued that she was not trafficked by an OCG. By contrast, under the new approach set out in HD, the courts are bound to consider the particular circumstances and vulnerabilities of each trafficked victim within the Nigerian socio-cultural context in order to establish whether sufficiency of protection is available and whether internal relocation would not be unduly harsh for them. Therefore, the legal presumption in this regard set out in PO is no longer good law, i.e., individuals trafficked by an OCG are no longer presumed to have access to sufficient protection.

The Upper Tribunal in HD considered in detail extensive country background evidence, expert witnesses, and academic literature in relation to the cultural practices and spiritual beliefs specific to trafficking in Nigeria. It found that Nigerian females trafficked for sexual exploitation are likely to be forced to participate in a juju oath-taking ritual, which is part of their recruitment process. They are also likely to be brought up in communities that believe in the power of juju/voodoo. Traditional oaths are a commonly accepted method of dispute resolution predominant throughout West Africa and are seen as part of the customary law arbitration (Oba 2008; cited in Van Der Watt and Kruger 2019). They act as contracts, binding on the parties and enforceable by the voodoo priest. Nevertheless, the Upper Tribunal also found that, in some cases, the oaths are used as a coercive spiritual and psychological tool used by traffickers to control their victim and her family. This has severe implications for legal proceedings because VoTs will be reluctant to cooperate with authorities and disclose the fact that they undertook a juju ceremony/ritual oath taking. They fear the consequences of breaking the oath, which they believe will result in spiritual retribution manifested as bad fortune and/or death within their families (Baarda 2016; Cole 2006; Dunkerley 2018; EASO 2015). As such, the Upper Tribunal in HD recognized the possible use of juju/voodoo as one of the factors that could indicate a female had been trafficked for sexual exploitation, which enhances her vulnerability upon return.

The guidance set out in HD [2016] builds on the approach taken by the Upper Tribunal in relation to Albanian VoTs in AM and BM (Trafficked Women) Albania CG [2010] (see CUREDI41UK001 for a separate analysis) and the subsequent TD and AD (Trafficked Women) CG [2016]. In the latter, individual vulnerabilities of the victim and the sustainability of support outside specialized shelters were held to be key factual elements concerning the sufficiency of protection and internal relocation. Both cases discussed in detail the cultural elements of Albanian society that negatively impacted the VoT’s safety, well-being, and prospects for successful reintegration in the country.

In summary, HD sets out a new vulnerability-based approach in relation to the issue of sufficiency of protection and the subsequent question of internal relocation for returning Nigerian VoTs. The approach is a unique form of assessment, not least because it allows cultural factors that may enable vulnerability to also be taken into account by the courts, such as the use of juju/voodoo as a mechanism of control, in addition to previously established vulnerabilities such as mental health conditions, lack of skills, limited education, and material destitution.

Reports cited in the judgement:

• Cherti, Myriam, Jenny Pennington, and Peter Grant. 2013. “Beyond Border: Human Trafficking from Nigeria to the UK”. Institute for Public Policy Research, available at <https://www.ippr.org/files/images/media/files/publication/2013/01/nigeria-trafficking_Jan2013_10189.pdf> accessed 22 July 2021.
• EASO. 2015. “EASO Country of Origin Information Report. Nigeria - Sex Trafficking of Women”. * European Union, available at <https://www.easo.europa.eu/sites/default/files/public/BZ0415678ENN.pdf> accessed 22 July 2021
• García, Ana Dols. “Voodoo, Witchcraft and Human Trafficking in Europe”. New Issues in Refugee Research Research (UNCHR) Paper No. 263
• IOM. 2015. “Enhancing the Safety and Sustainability of the Return and Reintegration of Victims of Trafficking: Lessons Learnt from CARE and TACT Projects”. International Organization for Migration, available at < https://publications.iom.int/system/files/pdf/essrrvt_en_0.pdf> accessed 22 July 2021.
• UNODC. 2013. “Abuse of a Position of Vulnerability and Other ‘Means’ within the Definition of Trafficking in Persons”, available at < https://www.unodc.org/documents/human-trafficking/2012/UNODC_2012_Issue_Paper_-_Abuse_of_a_Position_of_Vulnerability.pdf> accessed 22 July 2021.

Guidelines cited in the judgement:

• United Nations High Commissioner for Refugees, UNHCR ‘Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to Victims of Trafficking and Persons at risk of being trafficked’ (Geneva 2006) (UNHCR Trafficking Guidelines)

Academic literature cited in the judgement:

• Campana, Paola. 2016. “The Structure of Human Trafficking: Lifting the Bonnet on a Nigerian Transnational Network”. The British Journal of Criminology 56(1): 68–86.
• Ellis, Tom and James Akpala. 2011. “Making Sense of the Relationship Between Trafficking in Persons, Human Smuggling, and Organised Crime: The Case of Nigeria”. The Police Journal: Theory, Practice and Principles 84(1): 13–34.
• Shelley, Louise. 2003. “Trafficking in Women: The Business Model Approach”. The Brown Journal of World Affairs 10(1): 119–131.

Academic literature cited in the template commentary:

• Baarda, Charlotte. 2016. “Human Trafficking for Sexual Exploitation from Nigeria into Western Europe: The Role of Voodoo Rituals in the Functioning of a Criminal Network”. European Journal of Criminology 13(2): 257–273.
• Christensen, Tyler Marie. 2011. “Trafficking for Sexual Exploitation: Victims Protection in International and Domestic Asylum Law”. New Issues in Refugee Research (UNHCR) Research Paper No. 206.
• Clayton, Gina and Georgina Firth. 2018. Immigration and Asylum Law. Oxford: Oxford University Press.
• Cole, Jeffrey. 2006. “Reducing the Damage: Dilemmas of Anti-Trafficking Efforts among Nigerian Prostitutes in Palermo”. Anthropologica 48(2): 217-228.
• Dunkerley, Anthony. 2018. “Exploring the Use of Juju in Nigerian Human Trafficking Networks: Considerations for Criminal Investigators”. Police practice & research 19(1): 83–100.
• van der Watt, Marcel and Beatri Kruger. 2020. “Breaking Bondages: Control Methods, ‘Juju,’ and Human Trafficking”. In John Winterdyk and Jackie Jones (eds), The Palgrave International Handbook of Human Trafficking, 935–951. Cham: Springer International Publishing.

Other literature:

• Cronin, Kathryn and Nijan Hoshi. 2016. “Key Nigerian Country Guidance Case Strengthens Protection for Trafficked Women”. Garden Court Chambers, available at <https://www.gardencourtchambers.co.uk/news /key-nigerian-country-guidance-case-strengthens-protection-for-trafficked-women> accessed 8 November 2019.

Last edited on 14.05.2022