One misconception I come across as an immigration practitioner is that a positive trafficking decision under the National Referral Mechanism is enough to establish an asylum claim. It is not.
A positive conclusive grounds decision is powerful evidence that someone has been trafficked or subjected to modern slavery. It confirms past exploitation. But it does not answer the separate question that refugee law asks: is this person entitled to refugee status?
That distinction is easy to overlook because trafficking and asylum claims often arise from the same facts. Even so, they operate under different legal frameworks and answer different legal questions. A positive trafficking decision establishes what happened in the past whereas an asylum claim asks whether the claimant now has a well-founded fear of persecution for a Convention ground if returned to their home country.
A positive trafficking decision is an important starting point, but it is not the end of the refugee status analysis.
What does a positive trafficking decision establish?
The National Referral Mechanism is the UK’s framework for identifying and recognising victims of trafficking and modern slavery. It gives effect to the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings. The Convention focuses on identifying victims, supporting their recovery and preventing further exploitation.
The Refugee Convention serves a different purpose. Its Article 1A(2) protects people who are outside their country of nationality because they have a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group.
The two systems often overlap, but one does not determine the outcome of the other.
The United Nations High Commissioner for Refugees’ Guidelines on International Protection No. 7 make this clear. Someone who has been trafficked is not automatically a refugee. Every case requires its own assessment under the Refugee Convention.
Why is future risk the central issue?
The Refugee Convention is concerned with future protection, not simply past harm. The claimant must therefore still show why they face a real risk if returned.
That risk may arise because the trafficking network remains active. The claimant may have escaped an organised criminal group or fears reprisals from family or community members. The circumstances that made them vulnerable to trafficking may also remain unchanged. In some cases, survivors face severe stigma that increases the risk of further exploitation.
When preparing these cases, I find it helpful to shift the focus away from what happened in the past and towards what is likely to happen if the claimant returns. That is where the refugee analysis begins.
Is there a Convention ground?
A future risk alone is not enough. Refugee status is granted only if that risk is connected to one of the five Convention grounds.
For trafficking survivors, the most common ground is likely to be membership of a particular social group. Even so, this should never be assumed. Whether the requirement is met depends on the claimant’s individual circumstances and the evidence about conditions in their country of origin.
The principles established by Shah and Islam [1999] 2 AC 629 and Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680 remain central to this analysis. These decisions show that gender, shared immutable characteristics and social perception are all relevant when deciding whether a particular social group exists.
When preparing a claim, ask the question: why does this claimant face persecution for a Convention ground, rather than simply because they were trafficked? Framing the issue in that way helps keep the refugee analysis on track.
Can the home state provide effective protection?
Even where a claimant faces persecution, they will not normally qualify for refugee status if their home state is both willing and able to provide effective protection.
In Horvath v Secretary of State for the Home Department [2000] UKHL 37, the House of Lords explained that the law does not require a state to eliminate every risk of harm. The question is whether it operates a system of protection that is reasonably effective in practice.
This is particularly important in trafficking cases. Many countries have anti-trafficking legislation and specialist police units. That is relevant, but it is not the end of the enquiry. Representatives should consider whether victims can safely report offences, whether the authorities investigate complaints, prosecute offenders and provide effective protection in practice. Country evidence will often be critical.
Is internal relocation a realistic option?
Decision-makers must also consider whether the claimant could avoid the risk by relocating elsewhere in their country of origin.
The leading authority, Januzi v Secretary of State for the Home Department [2006] UKHL 5, makes clear that this is not simply a geographical question; relocation must be both safe and reasonable.
For trafficking survivors, the answer depends on the individual facts. Criminal networks may operate nationally rather than locally. A claimant’s vulnerability, mental health, financial circumstances and access to support may all affect whether relocation would genuinely remove the risk.
The fact that relocation is theoretically possible does not necessarily mean it is reasonable.
Why does the distinction matter?
Treating trafficking as relevant only to the National Referral Mechanism risks underestimating its significance when assessing future persecution.
A well-prepared trafficking-based asylum claim should address each element of the refugee definition separately. It should identify the future risk, explain why that risk falls within a Convention ground, analyse whether effective state protection exists and consider whether internal relocation provides a realistic alternative.
A positive trafficking decision is therefore neither irrelevant nor decisive. It is an important piece of evidence, but it is only one part of the refugee status assessment.
Conclusion
It is clear that trafficking law and refugee law complement each other, but they serve different purposes. The strongest trafficking-based claims treat the trafficking decision not as the conclusion of the case, but as the starting point for a careful assessment under the Refugee Convention.
