Over the past few months, I have been working on a growing number of cases involving survivors of human trafficking and modern slavery. Many of these clients are not just dealing with past exploitation, but with a very real fear of what might happen if they are returned to their country of origin, particularly the risk of being trafficked again.

Against that backdrop, the recent Court of Appeal judgment in EAV v SSHD; GMP v SSHD [2025] EWCA Civ 1677 stood out to me as one of the clearest (and most sobering) statements of where asylum law currently draws its boundaries when trafficking and economic vulnerability intersect.

The Court accepted that former victims of trafficking can constitute a “particular social group”. That, on its own, is not controversial. What matters, however, is what comes next.

The Court reaffirmed a principle practitioners sometimes underestimate: identifying a particular social group is only the starting point. Refugee status depends on why the feared harm would occur. As the Court reminded us, drawing on Fornah v Secretary of State for the Home Department [2006] UKHL 46; [2007] 1 AC 412, there must be a real causal link between the risk of persecution and membership of that group.

That causal link was where the appellants’ cases ultimately failed in EAV & GMP.

The Court had no difficulty accepting that the appellants had been trafficked in the past. Nor did it dispute the seriousness of trafficking as a harm, or the reality that re-trafficking is a recognised risk requiring careful assessment.

What the Court focused on instead was why that future risk arose.

The appellants argued that economic necessity would force them to seek work abroad again, placing them at risk of re-trafficking. The Court accepted that risk could arise even where a person’s own conduct plays a role, but drew a sharp distinction between choices that express an innate or protected characteristic and choices driven by poverty and economic pressure.

The latter, the Court held, does not engage Convention protection unless the risk exists because of membership of the particular social group.

In these cases, the Court found that the appellants were economically vulnerable before being trafficked and were no more vulnerable to exploitation because they had been trafficked. The risk they faced on return flowed from general economic hardship, not from their status as former victims of trafficking.

That finding, uncomfortable as it may feel, was decisive.

Why this judgment matters in practice

As someone currently representing trafficking survivors, I found this judgment clarifying but also sobering.

It reinforces that asylum law is not a general protection against hardship or exploitation, even where that exploitation is severe. Past trafficking is powerful evidence, but it is not, by itself, determinative of refugee status. The law still insists on a Convention reason, and courts will scrutinise causation closely.

This matters because many survivors of trafficking will fall outside the Refugee Convention, despite facing genuine risks. That does not mean they are unprotected, but it does mean that their cases may need to be framed through other routes: humanitarian protection, discretionary leave, trafficking-specific frameworks, or Article 3 and Article 8 arguments.

The Refugee Convention was never designed to solve every form of vulnerability, and courts will continue to enforce its limits strictly. For practitioners, the lesson is clear. We must be rigorous in distinguishing vulnerability from persecution, and honest with clients about what asylum law can, and cannot, do for them.

It is not an easy line to walk. But judgments like this help us see exactly where that line is drawn.

Sajib Hosen, PhD (Law)
Head of Practice
GigaLegal Solicitors

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