Blog post by Noemi Magugliani, an Irish Research Council Scholar and Doctoral Fellow at the Irish Centre for Human Rights, National University of Ireland Galway, and Legal Researcher at the Global Legal Action Network (GLAN).
Despite the recognition that trafficked persons might form a particular social group within the meaning of the Refugee Convention, adult male survivors of trafficking still face considerable barriers in being recognised as refugees on the basis of their trafficking experience
The 2006 UNHCR guidelines on the application of the Refugee Convention and its Protocol to trafficked persons and persons at risk of being trafficked recognises that, despite not all victims or potential victims of trafficking fall within the scope of the 1951 Refugee Convention, some could satisfy all elements of the refugee definition. Such a possibility is not least implicit in the 2000 Palermo Protocol, as well as in the 2005 Council of Europe Convention Anti-Trafficking Convention. Asylum represents a major alternative to domestic and regional anti-trafficking protection instruments, particularly when the latter do not offer long-term protection in favour of a criminal justice approach, making the obtainment of asylum the most protective status for victims of trafficking.
An analysis of RSD processes in a number of Council of Europe jurisdictions shows that, in the vast majority of instances, survivors will seek to avail themselves of international protection on the basis of their membership of a particular social group (PSG). The recognition of adult men survivors of trafficking, in particular of trafficking for the purpose of any type of exploitation other than sexual, as members of a PSG has however been found to be highly problematic. The hardships faced by adult men are attributable to the nature of the exploitation to which the majority of them is subjected, as labour and criminal exploitation are considered ‘lesser’ harms compared to sexual exploitation, and because violations of socio-economic rights as a ground for asylum are not yet fully recognised. In addition, they are also attributable to the gender stereotyping operationalised by decision making bodies, who have consistently failed to recognise the gender dimension of trafficking with respect to men and boys, focussing almost entirely on the experiences of women and girls. This contribution will explore the impact of these two elements on the assessment of asylum claims brought in the United Kingdom by trafficked adult men.
The element of membership of a particular social group
Both the 2002 UNHCR guidelines on the meaning of membership of a PSG and the above mentioned 2006 guidelines recognise that women are a clear example of a social subset defined by innate and immutable characteristics, who are frequently treated differently to men. Despite it being problematic that less attention is given to men and boys as potential members of a PSG, the guidelines provide that former victims of trafficking may be considered as constituting a PSG based on the unchangeable, common and historic characteristic of having been trafficked, going beyond a gender component of the assessment.
From the international jurisprudence, two models of interpreting the concept of membership of a PSG have been developed: the ‘protected characteristic’, and the ‘social perception’ approach. In the United Kingdom, the two approaches have been reconciled in the landmark judgment of Fornah, where it was recognised that satisfaction of one of the two tests will lead to a finding of a PSG. Relying heavily on the 2002 UNHCR guidelines, Lord Bingham argued that if the requirements for forming a PSG were interpreted as meaning that a PSG should only be recognised as such if it satisfies both the ‘protected characteristic’ and the ‘social perception’ tests, it would propound a test more stringent than is warranted by international authority. The precedent of Fornah, however, has not been relied upon consistently in subsequent cases. In SB, for example, the Asylum and Immigration Tribunal accepted that former victims of trafficking are capable of being members of a PSG because of their shared common background or past experience of having been trafficked, but it also emphasised that the group must have a distinct identity in the society in question. In that case, and in others including TD and AD (Trafficked women) and AM and BM (Trafficked women), it was nonetheless recognised that a woman who has been trafficked for the purposes of sexual exploitation is a member of a PSG, namely ‘former victims of trafficking for sexual exploitation’ or ‘women victims of trafficking’.
The recognition of women survivors of trafficking, in particular for the purpose of sexual exploitation, as members of a PSG has been widely acknowledged and accepted both in the asylum system and by judges, within and beyond the United Kingdom – although it shall be noted that a number of appeals brought before the Upper Tribunal in recent years shows an increased reliance on the use of the ‘social perception’ test to exclude women and girls as well from accessing protection. Still, trafficked women and girls have been more likely to be recognised as members of a PSG, compared to adult men. An analysis of the decisions of the United Kingdom’s Upper Tribunal, Asylum and Immigration Chamber, highlights the difficulties that adult men survivors of trafficking still face in being recognised as members of a PSG, and therefore in accessing asylum.
Adult men survivors of trafficking seeking asylum in the United Kingdom
The analysis focusses on appeals evaluated by the Upper Tribunal between 2017 and 2019. In the majority of instances, including in AN (Albania) and AB (Albania), the Upper Tribunal departed from Fornah. In AN (Albania), the protection claim submitted by a victim of trafficking for the purpose of labour exploitation was refused by the Home Office. In evaluating the appeal, the First-tier Tribunal judge found that it was not accepted that the appellant, together with others in similar positions, had a distinct identity in Albanian society that is perceived as being different to that of the surrounding society, and that therefore the appellant was not a member of a PSG and was not entitled to refugee status. The finding was stayed by the Upper Tribunal. In AB (Albania), the First-tier Tribunal accepted that the appellant was a victim of trafficking, but it concluded that the appellant was not at risk on this account and was not a member of a PSG. While the Upper Tribunal found that women forced into prostitution can readily be seen to form a distinct group who would be viewed as different by other parts of society, in the case of criminal exploitation it found that it could not be accepted that the appellant was a member of a PSG in the absence of evidence of discrimination against such a group.
Meaningful exceptions to the trend of not following Fornah are to be found in HVT (Vietnam), where the Upper Tribunal held that victims of trafficking for sexual exploitation have a common immutable characteristic, namely their experience of having been trafficked, and that shared possession of that characteristic established the existence of the PSG, and in both SSHD v TSN (Vietnam) and ED (Albania), where it was recognised that, in the context respectively of forced criminality and forced labour, the appellants, as victims of trafficking, were members of a PSG.
In HVT (Vietnam), although it was accepted that the appellant was a victim of trafficking for the purpose of sexual exploitation, the Home Office argued that former victims of trafficking, although they share an immutable characteristic that cannot be changed, are not perceived as different and do not have a distinct identity in Vietnamese society. While the First-tier Tribunal dismissed the appeal, the judge of the Upper Tribunal, relying on precedents including SB and AZ, found that the shared experience of having been trafficking for the purpose of sexual exploitation amounted to a common immutable characteristic, and referring to the UNHCR guidelines argued that it is the past trafficking experience, rather than the future persecution now feared, that would constitute one of the elements defining the group. The negative decision of the First-tier Tribunal was set aside and re-made by allowing the appeal on asylum grounds. Interestingly, in a labour exploitation case, TVP (Vietnam), that was heard by the Upper Tribunal only a month after HVT (Vietnam), in considering the issue of membership of a PSG the judges noted that, although a person who has been trafficked can be said to have an immutable characteristic, namely having been trafficked, some difficulty arose in the specific case if there is indeed a requirement that a PSG must be recognised, seen or identified as such as a distinct group within society. In an attempt to explain the negative decision, as well as the inconsistency with HVT (Vietnam), the judges held that though certain sexual activities, such as prostitution, may have a stigma attached to them, it is difficult to consider that same situation to arise in terms of employment. This distinction between exploitation types was nonetheless partially reconciled in ED (Albania), where the Upper Tribunal confirmed that the appellant, as a victim of trafficking, was indeed a member of a PSG and remitted the case to the First-tier Tribunal for a de novo hearing.
Understanding the hierarchy of exploitation types and of experiences
In order to understand the reasons behind the lack of, or at least the inconsistent and uncertain, recognition of adult men survivors of trafficking as members of a PSG, both an historical and a sociological perspective ought to be adopted. From an historical perspective, the anti-trafficking movement has for a long time focussed almost entirely on the experiences of women and girls, repeatedly emphasising their vulnerability to human rights violations as well as their victimhood, and at the same time excluding males – and in particular adult men – from the narrative. Similarly, trafficking for the purpose of sexual exploitation has been, throughout the 20th century, the only type of trafficking to be acknowledged in international law. Both the international anti-trafficking structures and domestic protection mechanisms have construed an ideal victim, falling into “the known patriarchal trap that portrays women as helpless and passive victims who need to be rescued by others, and men as strong and active agents who can survive on their own.” By doing so, law and policy have contributed to defining the vulnerability of adult males as exceptional, and that of women – at least of those who fit the stereotype of the helpless victim – as ordinary.
In parallel, institutions have upheld an understanding of trafficking for the purpose of sexual exploitation as a greater harm compared to other types of trafficking, among which trafficking for labour exploitation and forced criminality. As the former tends to affect women and girls disproportionately, it follows that men and boys have been afforded less attention in anti-trafficking actions. In the United Kingdom, as well as elsewhere in Europe, major gaps have been identified, for example, in country of origin information (COI) and guidance that is available to, or directly compiled by, decision makers. Interestingly, the United Kingdom’s Upper Tribunal country guidance for the nationalities most commonly referred into the domestic anti-trafficking National Referral Mechanism (NRM), Albania and Vietnam, focus on women and girls – TD and AD (Trafficked Women) and AM and BM (Trafficked Women) for Albania, and Nguyen (Anti-Trafficking Convention: respondent’s duties) for Vietnam. A 2019 report by Asylos precisely highlighted this issue with respect to COI and guidance on Albania. As Asylos’ report finds, the lack of country guidance with respect to men and boys, and more broadly to labour exploitation, hinders quality decision making for Albanian males claiming asylum. This is even more problematic as there are growing numbers of Albanians being trafficked to the United Kingdom for labour exploitation. The same reasoning can be applied to Vietnamese claimants. In fact, although the majority of Vietnamese individuals were referred into the NRM as potential victims of trafficking for labour exploitation both in 2018 and 2017, the country guidance on Vietnam remains focussed on trafficking for sexual exploitation.
The narrow focus on a specific narrative of trafficking as a sexual exploitation phenomenon affecting mainly, if not exclusively, women and children, has led to the under-identification and to the partial understanding of other trafficking experiences, particularly those of men, for whom substantial obstacles exist in accessing protection due to the reticence of decision makers to perceive, understand, and acknowledge vulnerability outside of the traditional gender stereotyping. When adult men are exploited in forced labour or in forced criminality, there is a tendency to understand their exploitation as detached from the trafficking experience, and ‘merely’ as exploitation. Far from being a prelude to a struggle between sexes for the hegemony of victimhood, asking the man question is key to unpack power, and political, dynamics behind and beyond human trafficking. In order to ensure that protection mechanisms fulfil their purpose of being tools of inclusion, rather than of exclusion, it is necessary to depart from the stereotyping of males and females alike. It is also necessary to dismantle the hierarchy between exploitation types and between the stigma faced by individuals exploited sexually and that faced by ‘failed migrants’ exploited for labour, criminal, or other purposes. Finally, it is necessary to adopt an approach to trauma and vulnerability that is truly gender-based, rather than gender-biased, to overcome the infantilization of femininity and the over-masculinisation of agency, both of which are detrimental across the gender spectrum.
- Asylos and ARC Foundation, ‘Albania: Trafficked Boys and Young Men’ (2019).
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