A Nigerian national applied for asylum in the Netherlands, claiming she feared being ritually sacrificed in her home country and killed upon return by the human traffickers who helped her travel to Europe. The Minister for Asylum and Migration rejected her application by decision of 27 August 2021. The minister did not find credible the claim that she would be ritually sacrificed . Additionally, whilst the minister recognised that the applicant was a victim of human trafficking and held a residual debt to the trafficker, it did not consider that there was a plausible real risk of serious harm as a result of reprisals by human traffickers if the applicant were to return to her home country. The applicant unsuccessfully appealed this decision before the District Court of The Hague, seated in Utrecht. The district court ruled that not all victims of human trafficking face the same level of risk upon return and that, in this case, the applicant had not plausibly demonstrated a real fear of reprisals as she failed to provide evidence and provided inconsistent statements about the alleged threats. The applicant lodged an onward appeal before the Council of State.  

The council referenced its ruling from 23 November 2023, which addressed the risk of reprisals faced by victims of human trafficking upon return to Nigeria. The judgment was based on the findings of the General Country of Origin Information Report Nigeria of January 2023, of the Dutch Ministry of Foreign Affairs, which indicated that all sources consulted indicate that such victims face potential reprisals, particularly due to unpaid debts or fear of cooperation with prosecutors. The report further highlighted the difficulty for victims to evade smugglers, who are often powerful and wealthy individuals, sometimes with political connection. The council noted that  it found in its previous decision, ,that in the absence of further information, it cannot rule out, based on the general official report, that all returning victims of trafficking in Nigeria may be at risk.  

In response, the minister requested additional clarification from the ministry, which was provided in March 2024 as an explanatory memorandum, supplementary to the original report. The council considered both the original and supplemental information in the current appeal to assess whether returning victims of trafficking would  face a real risk of serious harm, also noting its relevance for similar future cases. 

The applicant argued that that the minister did not sufficiently justify why her fear of reprisals was considered unfounded. She contended that since the minister deemed credible the fact that she was a victim of human trafficking, the minister was obligated to conduct a proper risk assessment as referred to under the EASO (now EUAA) Country Guidance: Nigeria (October 2021) Furthermore, the applicant argued that the minister failed to factor in the relevant risks outlined in that guidance when assessing her application.  

The council considered whether the minister was required to conduct a risk analysis for the applicant in line with the afore-mentioned EUAA Country Guidance. It noted that under Article 11(1) of Regulation (EU) 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, the EUAA shall develop a common analysis of the situation in specific countries or origin and guidelines to support Member States in the assessment of applications for international protection, which Member States are obliged to take into account. It held that the EASO Country Guidance: Nigeria (October 2021) is such a country-specific common analysis and includes accompanying guidelines outlining risk profiles, including victims of trafficking in human beings. In relation to this risk profile, the court noted that the guidelines refer to the following risk-influencing factors: the victim’s debt to traffickers, the traffickers’ influence and resources, knowledge of the victim’s background, the victim’s family situation, education, socio-economic status, and available support networks. 

Both parties agreed, and the minister confirmed during the hearing, that if an individual’s account of human trafficking is considered credible and they express fear of reprisals, the minister must perform a risk analysis using the guidance and factors listed in the Country Guidance. 

Although the 2021 Regulation and Country Guidance came into effect after the minister’s decision on 27 August 2021, the court ruled that the EASO Country Guidance - Nigeria (February 2019), which was in force at that time, provided essentially the same assessment criteria regarding the risk of retaliation. Therefore, it concluded that even at the time of the decision, the same risk analysis framework applied, and the obligation to consider EASO guidelines was already included in the preamble of the recast Asylum Procedures Directive. 

Furthermore, the council found that according to the explanatory memorandum supplementing the general official report, there is a lack of studies documenting the scale of retaliation, and held that the wording of the explanatory memorandum does not imply that the fear of reprisals for all victims of human trafficking is well founded. Therefore, the council concluded that the general official report cannot be interpreted to mean that all trafficking victims face a real risk of serious harm upon return. However, the council acknowledged the concerns raised by the explanatory memorandum, which highlight that the vast majority of victims return with high debts, and that the risk of physical retaliation increases with the level of debt. It noted that reprisals may range from physical violence and murder or more commonly, to forced captivity by the police or others until the debt is paid. The council concluded that while the general official report and the supplementary explanatory memorandum do not presume automatic risk for all victims, the minister must consider these apparent risks that victims may face upon return, especially where high debts are involved. 

At the hearing, the minister argued that a risk analysis was implicitly conducted when assessing the application, focusing on recent contact or threats from the trafficker. While the council agreed that recent threats were  relevant, it observed that to support the position that there was no real risk of serious harm from reprisals by human traffickers, the minister merely noted during the decision-making process that the applicant had not provided evidence of threats following her escape and that the threats reported were deemed implausible The council ruled that, neither this reasoning nor the minister’s later arguments during the proceedings constituted an adequate risk assessment in line with the EASO Country Guidance: Nigeria (October 2021) as the minister failed to account for key risk factors such as the applicant's escape, her €22,000 debt, and her status as a single woman.  

The council held that although the district court correctly determined that the minister was entitled to doubt the credibility of the applicant's claims about post-escape threats, this alone did not suffice to demonstrate that there was no substantial risk of serious harm from potential reprisals. Additionally, it found that dismissing the risk as implausible solely due to the lack of recent plausible threats disregarded the explanatory memorandum’s warning that Nigerian traffickers may go to great lengths to recover their investments. Moreover, it ruled that the absence of current contact between an applicant in the Netherlands and a trafficker did not inherently mean that the trafficker or their network would be unable to locate the individual upon return to Nigeria. 

In light of the above, the council declared the appeal well-founded and set aside the judgment of the district court.