The applicant is a Nigerian national of the ethnic group of Edo. She is a single mother of two children with no family network in Nigeria. She did not attend school and is illiterate. She suffered from depressive moods as well as from post-traumatic stress disorder and has been a victim of sexual violence and trafficking for the purpose of sexual exploitation.

On 27 June 2016, the applicant applied for international protection in Austria, as she was persecuted, among other things, by Boko Haram. On 15 February 2017, the Federal Office for Immigration and Asylum (BFA) rejected the applicant's request citing Italy as responsible under the Dublin III Regulation. However, the Federal Administrative Court (BVwG) overturned the decision and allowed the application for international protection to proceed as the transfer period had expired.

On 28 April 2018, the BFA rejected the application for international protection and issued a return decision. The application for re-establishment was rejected on 11 September 2018 and the appeal lodged against it was dismissed by the BVwG on 9 May 2019.

On 25 July 2019, the applicant filed a follow-up request, claiming that she was persecuted by Boko Haram and was a victim of human trafficking. On 6 February 2020, the BFA rejected the request and refused to issue a residence permit. The office issued a return decision, determined that deportation to Nigeria was allowed, and established a fourteen-day voluntary departure period.

In December 2021, the BVwG annulled the decision of the BFA after conducting an oral hearing concerning the granting of the status of persons entitled to asylum as unfounded. The applicant was granted the status of subsidiary protection and granted a temporary permit as there was a chance that the applicant may be re-trafficked by human trafficking organisations upon her return to Nigeria.  

However, the BVwG ruled that the applicant could not be recognised as a refugee, since her status as victim of human trafficking did not fulfil the asylum ground of belonging to a ‘social group’ within the meaning of Article 1(A)(2) of the CSF. In addition, it noted that not every woman returning from Europe experiences mistreatment and discrimination, as it also depends on the wealth of the woman. As a result, the existence of a "social" group was not met since there was clearly no defined identity of those persons.

The Constitutional Court addressed the interpretation of the reason for asylum as belonging to a specific social group of women returning to Nigeria who have become victims of human trafficking and who have freed themselves from it. The applicant's complaints were upheld by the Constitutional Court on the basis that the disputed BVwG conclusions lacked a clear justification for why the applicant was not a member of a specific social group.

With reference to the case law of the CJEU, it noted that according to Article 10(1) the existence of a ‘social group’ must meet two cumulative conditions: 1) the members of the group must share innate characteristics of a background that cannot be changed or share characteristics or a belief that are so significant to identity or conscience that the person concerned should not be forced to renounce it. 2) this group must have a clearly defined identity, since the society around them sees them as different.

The first requirement for the establishment of a "social group" had been satisfied since the court had not questioned that Nigerian women who are victims of human trafficking share a common background through their sexual exploitation. Regarding the requirement of having a "clearly defined identity," the BVwG had stated that Nigerian women who had been victims of human trafficking and return from Europe without assets are subject to social stigmatization and that the applicant belonged to the very group of victims of human trafficking who could anticipate being stigmatized if they returned.

The Constitutional Court ruled that this is precisely where the “clearly defined identity” of this group presents itself, as the society around them regards them as different. The BVwG's justification that not all women who are victims of human trafficking who return to Nigeria are treated identically but rather that each woman's particular circumstances matter, which is why a "clearly defined identity" is lacking, was unpersuasive.