The Locus of Persecution Reconsidered: Risk of Re-Trafficking, Cumulative Harm, and Failure of State Protection

Abstract

Persecution, a core concept of the 1951 Refugee Convention’s definition of ‘refugee’, is generally thought to entail both serious harm and a failure of State protection. The predominant view in refugee law is that the harm a refugee fears will take place within their country of origin. Yet, trafficked persons who fear (transnational) re-trafficking experience harm mainly outside the country of origin. As such, their asylum claims raise difficult doctrinal issues, in particular regarding how the State of origin can be expected to protect against harm taking place outside its territory. This article seeks to answer this question by examining trafficking-based asylum claims from the United Kingdom and Germany and the relationship between future risk, harm, and State protection. It argues that to understand effective State protection against re-trafficking, it is necessary to pay attention to the individual types of harm experienced in the trafficking context and to their sequence. This allows an understanding of persecution as cumulative, with the State of origin’s failure to protect against harm experienced in its territory resulting in additional harm experienced outside the country. This understanding of persecution resolves the doctrinal issues raised by trafficking-based asylum claims and has wider implications for individuals who experience harm in the context of irregular migration.