Nigeria | Protection to be afforded to victims of human trafficking

Deceived by false promises of employment and/or education, the young women from Nigeria whom we met during our consultations at the Geneva CSP's assistance sector for victims of human trafficking were, in some cases, recruited while still minors. Before their departure, they undergo a juju religious ritual during which they take an oath (in a box). Once they arrive in Europe, they find themselves forced into prostitution to repay alleged exorbitant travel expenses, threatened with repercussions from the juju ritual if they do not comply. Despite this systematic pattern, to date, and to our knowledge, the State Secretariat for Migration (SEM)SEM) refuses to recognize the quality of refugee for this particular category of victim of human trafficking.[1] They are generally granted provisional admission. However, they should be recognized as refugees, as is done in countries like France [2] and the United Kingdom, because they are not protected by their own state.[3]

Although the SEM recognizes that in the event of return there is a significant risk of persecution and that the execution of the return would lead to a violation of Article 3 of the European Convention on Human Rights (CEDH), or risks of torture and inhuman and degrading treatment, refugee status is denied to these Nigerian women because it does not consider victims of human trafficking to be a specific social group within the meaning of asylum law (Art. 3 LA si). [4]

Certainly, in Switzerland, sex/gender alone does not allow for the recognition that the characteristic of a determined social group is met. However, the total revision of the Asylum Act in 1998 introduced the notion that specific grounds for flight for women must be taken into account. The Council of Europe Convention on preventing and combating violence against women and domestic violence, known as the Istanbul Convention, reinforces this principle in its Article 60(1) and (2).

The grip of the juju ritual

«Voodoo – called Juju in Nigeria – is a traditional religion in West Africa that has been practiced for centuries. According to the belief, spirits or gods govern the earth and every aspect of human existence. They can protect or punish humans. (...) The victims consider the oath they have taken during the Juju ceremony to be a solemn oath and they are not inclined to break it easily.

EASO, Country of Origin Information Report, Nigeria, Trafficking in women for sexual exploitation, October 2015, p. 28ff

Over the years, different forms of persecution against women, such as female genital mutilation, forced marriage, and domestic violence, have been recognized as potentially constituting grounds for asylum, with these victims belonging to a specific social group determined by the societal and legal context of the country of origin.

The Afghan refugee

Human trafficking can lead to refugee status recognition in cases of young boys sexually exploited in Afghanistan, a phenomenon known as «Bacha bazi» [5]. In a ruling by the Federal Administrative Court (TAF) of 2017 (D-262/2017), the judges recognized that the victim met the condition of belonging to a specific social group. Jurist Anne-Laurence Graf-Brugère notes that «according to a first interpretation, one can consider that it was the past experience as a «Bacha bazi» that exposed him at the time of his departure from Afghanistan, and that would expose him to persecution if he returned to his country. (...) According to a second interpretation, one can deduce from the TAF's reasoning that the boy was targeted and recruited as a «Bacha bazi» because of his belonging to a specific social group, for example, young boys in Afghanistan.» [6]

A defined social group

The Swiss definition of the term «determined social group» is similar to that developed by the HCR [7]: «When, based on inherent and immutable qualities, a group of people distinguishes itself from other groups, who, due to these qualities, is or fears being the victim of persecution.» [8]

Regarding the protection to be provided to victims of trafficking, the United Nations Refugee Agency states that «Proven or potential victims of trafficking may be eligible for refugee status if it can be proven that they fear persecution due to their membership in a particular social group» [9].

The UNHCR explains that women are an example of a social subgroup of people who are defined by innate and immutable characteristics and who are often treated differently from men. Depending on the country's context, these subgroups can include single women, widows, divorced women, illiterate women, separated or unaccompanied children, orphans, or street children. It is also clarified that former victims can also constitute a social group due to the immutable, common, and historical characteristic of having been trafficked.

Human trafficking is thus not simply a criminal act as the TAF may have stated in previous jurisprudence (D-2341/2019 of October 22, 2019), but encompasses more complex issues of gender and violence against women.

The Nigerian government is turning a blind eye

In Nigeria's case, although the state has adopted some form of legislation, it offers no effective protection to date, neither to vulnerable women who could fall prey to trafficking networks nor to victims who return to the country after being trafficked. This has been recognized by the SEM in asylum decisions.

By refraining from implementing an effective protection system for these women, the Nigerian state is effectively tolerating this violence. It also does not combat the stigma faced by former victims upon their return, who again become targets for traffickers [10].

Based on the foregoing, and also considering the societal environment of Nigeria, former victims of human trafficking risk persecution upon their return precisely because they belong to a specific social group. Their past experience as victims constitutes an inseparable characteristic of their personality, as they cannot change their past, and stigma or reprisals occur in a discriminatory manner due to their membership in a specific social group.

Nigerian women who are victims of human trafficking must therefore be granted real protection, namely refugee status if the other conditions of Art. 3 LAsi are met.

SIBEL CAN-LONG
CSP Geneva: Support Sector for Victims of Human Trafficking

Search Engine Marketing, Manuel asylum and return, Article D2, Gender-related persecution, §2.3.8
[2] Decision of the CNDA No. 16015058 of March 30, 2017
[3] HD (Trafficked women) Nigeria CG, [2016] UKUT 00454 (IAC), United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), October 17, 2016
[4] SEM, Manuel asylum and return, Article D2, Persecution related to gender, §2.3.8 5 TAF D-262/2017 of May 1, 2017
Anne-Laurence Graf-Brugère, The ground for persecution derived from «membership in a particular social group,», May 2018
[7] HCR, Guidelines on International Protection: Membership of a particular social group» Within the framework of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/02 Rev.1, July 8, 2008
Federal Office for Migration, The situation of women in asylum policy - assessment of gender-specific aspects in asylum procedures, August 2005 report in response to the Menétrey-Savary Postulate (00.3659), p. 10
[9] CR, GUIDELINES ON INTERNATIONAL PROTECTION: Application of Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Trafficking, HCR/GIP/06/07 date: April 7, 2006
EASO, Country Guidance, Nigeria, Guidance Note and Common Analysis, February 2019, p. 60ff

ARTICLE 3. DEFINITION OF REFUGEE

Refugees are persons who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, are outside the country of their nationality and are unable or, owing to such fear, are unwilling to avail themselves of the protection of that country, or, if they have no nationality and find themselves outside the country of their former habitual residence owing to such fear, are unable or, owing to such fear, are unwilling to return to it. Such persons, in particular, include those whose life, bodily integrity or freedom is threatened, as well as those subjected to unbearable psychological pressure. The specific reasons for flight of women shall be taken into account.