PK v Secretary of State for the Home Department

1. This is an appe al against the decision of Judge of the F irst-tier Tribunal Frankish ( the judge ) , promulgated on 25 October 2017 , dismissing the a ppellant ’s appeal against the r espondent ’s decision dated 5 September 2017 refusing his asylum claim. Factual B ackground

2. T he following is a summary of the material elements of the appellant’s protection claim , as developed before the First-tier Tribunal, necessary for determining whether the First-tier Tribunal ’s decision contains material errors of law .

3. The appellant is a national of Ukraine , date of birth 30 January 198 1 . He is Catholic and worked as a carpenter. He and his wife left Ukraine in December 2013. They illegally entered the UK on an unknown date and were arrested on 23 December 2014 and granted Temporary Admission.

4. A military call-up notice issued by the Ukrainian authorities was delivered to his parents’ address requiring the appellant to present himself to the mili tary in October 2016. A further notice was similarly delivered requiring him to present himself in February 2017. The appellant maintains that the military authorities have been enquiring about his whereabouts .

5. The appel lant, with his wife as a dependa nt, claimed asylum in March 2017. He fear ed that he would be subjected to serious ill-treatment as a draft evader and because his political activities as a supporter of the Party of the Regions. We need say no more in relation to the 2 nd basis of the protection claim as the political landscape in Ukraine has materially changed since the appellant departed . The appeal before the First-tier Tribunal concentrated almost exclusively on the consequences of the appellant’s draft evasion. The First-tier Tribunal decision

6. The judge accepted that conscription call-up papers had been delivered to the address of the appellant’s parents, which was his official address. The judge found that the appellant ’s conscription had been deferred in the past on account of an illness (cerebral arachnoiditis) .

7. The judge then considered whether any military service undertaken by the appellant would associate him with acts that are contrary to basic rules of human conduct as defined by international law. This was identified by the judge as ‘Question One’. Whether the appellant would go to prison if he refused conscription and , if so, whether the conditions were such as to breach article 3, was identified by the judge as ‘Question Two’.

8. In answering these questions, the judge relied on the Upper Tribunal Country Guidance decision in VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 00079 (IAC) . The headnote s of VB read s ,

1. At the current time it is not reasonably likely that a draft-evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act, although if a draft-evader did face prosecution proceedings the Criminal Code of Ukraine does provide, in Articles 335, 336 and 409, for a prison sentence for such an offence. It would be a matter for any Tribunal to consider, in the light of developing evidence, whether there were aggravating matters which might lead to imposition of an immediate custodial sentence, rather than a suspended sentence or the matter proceeding as an administrative offence and a fine being sought by a prosecutor.

2. There is a real risk of anyone being returned to Ukraine as a convicted criminal sentenced to a term of imprisonment in that country being detained on arrival, although anyone convicted in absentia would probably be entitled thereafter to a retrial in accordance with Article 412 of the Criminal Procedure Code of Ukraine.

3. There is a real risk that the conditions of detention and imprisonment in Ukraine would subject a person returned to be detained or imprisoned to a breach of Article 3 ECHR .

9. At [28] t he judge briefly mentioned three human rights reports adduced by the appellant’s representative in order to demonstrate that the situation in Ukraine had deteriorated since the promulgation of VB and that both Ukrainian and Russian forces were committing atrocities in the Crimean conflict.

10. At [29] the judge stated, Reverting to the issue of the status of country guidance case law, it is long established that it is to stand until found to be wrong in law ( OM (AA(1) wrong in law) Zimbabwe CG [2006] UKAIT 00077 ). In this case I do not, in common with the UT determination, find that Question One is made out. That is, that the threshold reached by which the appellant, if returned, may be compelled to engage in acts contrary to basic rules of human conduct.

11. In relation to Question Two, t he judge had this to say at [30], Finally, we have the issue of imprisonment and article 3. With the appellant having complied with call-up and being deferred as unfit, thereafter not receiving his call-up papers as he was out of the country, I conclude that he falls under (1) of VB , above. He is likely to be dealt with by way of fine. The UT determination allowed the appeal under Question Two …. However, that appellant was found to be liable to lengthy detention pending trial. He was also likely to receive particularly harsh treatment because he was an ethnic Ukrainian Russian who sympathies were with the Russian side. Neither of these factors apply to this appellant.

12. The judge consequently dismissed the appeal. The challenge to the First-tier Tribunal’s decision

13. The appellant challenges the judge’s decision on two principal grounds.

14. Firstly , the judge misdirected himself in holding that VB dealt with the issue whether those conscripted or mobilised were at risk of being associated with breaches of International Humanitarian Law (IHL) , and failed to make any express finding on this point in light of the further country evidence. In her grounds M s Norman referred to this as the ‘IHL point’.

15. Ms Norman relied on paragraphs 6 and 7 of VB . These read,

6. It was agreed with the parties that this deci sion would also seek to provide Country Guidance on the following issues: (i) What are the likely punishments for draft evasion in Ukraine ? (ii) Are prison conditions for draft evaders in Ukraine contrary to Article 3 of ECHR, or has there been a significant and durable change in Ukraine such that the country guidance decision of PS (prison conditions; military service) CG [2006] UKAIT 00016 should no longer be followed? (iii) Are draft evaders who have been imprisoned under Article 336 of the Ukrainian criminal code required thereafter to undertake military service during periods of mobilisation ? If so what are the conditions to which they will be exposed during such military service?

7. At the hearing however it was agreed by both parties and the Panel that it is only possible to address the first two issues with a view to providing country guidance and that there was simply insufficient country of origin material available to make any informed guidance decision on the third issues as to whether those conscripted or mobilised into the Ukrainian army were at real risk of being required to commit acts contrary to international humanitarian law or whether they would be at real risk of persons such as the appellants being subject to " dedovshchina ", which means violent bullying or initiation within the army, which might in turn put those recruited or mobilised at risk of serious harm.

16. In her Grounds Ms Norman submitted that the judge erred in law in regarding VB as being authoritative on the IHL point, and in failing to assess the further evidence provided relating to breaches of IHL. At the ‘error of law’ hearing, an d in written submissions received from the parties following the ‘error of law’ hearing, Ms Norman developed her second ground. She contends that the relevant law provides as follows: A person is a refugee if he faces non-optional recruitment, or penalty for refusal, to a military which is committing acts, with which he may be associated, contrary to international humanitarian law.

17. In her submission t he mere fact that there is ‘non-optional recruitment’ or a ‘ penalty ’ for re f using conscription , regardless of the nature or seriousness of the penalty , would entitled a person to refugee status if he would, as a result of conscription, face a real risk of being associated with acts contr ary to basic rules of human conduct . In support of her submission Ms Norman relies on Sepet v SSHD [2003] UKHL 15 , Krotov v SSHD [2004] EWCA Civ 69 and BE (Iran) [2008] EWCA Civ

540.

18. Secondly, the grounds contend that the judge failed to determine whether the appellant would be subject to pre-trial detention on return to Ukraine. The judge was asked to make a finding as to the prospects of the appellant facing pre-trial detention on return, even if the eventual sentence was likely to be non-custodial. His failure to do so rendered the decision unsustainable.

19. Following the ‘error of law’ hearing the Tribunal gave both parties an opportunity to supplement their oral submissions with further written submissions in respect of the IHL issue. We are grateful to the representatives for the further submissions.