The Home Office has agreed to withdraw its decision to refuse asylum to a Ukrainian man who evaded the military draft, meaning that an appeal from the country guidance decision of PK and OS (basic rules of human conduct) Ukraine CG [2020] UKUT 314 will no longer be heard by the Court of Appeal.

OS, a Ukrainian national, claimed asylum in March 2015 having received notice that he was to be mobilised to the Ukrainian armed forces. He feared ill treatment on the basis that he was a draft evader. The application was refused in February 2018 and he appealed. The First-tier Tribunal held that call-up papers had been delivered to his registered address and that the military authorities had attended his father’s home, but that it was not reasonably likely that he would face a custodial sentence for draft evasion.

The Upper Tribunal heard his appeal along with that of another draft evader, PK, in June 2020. In its judgment in PK and OS, the tribunal found that there were acts contrary to international humanitarian law taking place, but that the appellant was not likely to be associated with them as he could not, on the basis of the rules at the time, be sent to the front line known as the ATO zone. But it accepted that for an appellant who could show a connection with such acts, any penalty for refusal to serve would amount to persecution.

OS sought permission to appeal to the Court of Appeal. Popplewell LJ and Carr LJ granted permission to appeal on one ground which had two limbs. First, that the Upper Tribunal arguably misapplied the relevant standard of proof, and Case C-472/13 Shepherd v Bundesrepublik Deutschland, in analysing the degree to which OS could be connected to acts contrary to international humanitarian law. Secondly, the tribunal arguably erred in failing to consider the proposition that any compelled participation in the Ukrainian military would be capable of causing mental anguish amounting to a human rights abuse. 

The appeal was due to be heard on 30 March 2022. 

Case settled

Between the grant of permission and the hearing date, the appellant and his young children had attained seven years’ residence in the UK. He submitted a fresh claim to the Home Office arguing the mental anguish point upon which he had already been granted permission and on the basis of Article 8 of the European Convention on Human Rights, raising paragraph 276ADE of the Immigration Rules and section 117B of the Nationality, Immigration and Asylum Act 2002. 

Soon before the appeal hearing, on 25 February 2022, Russia invaded Ukraine. This had two major consequences for the background of this appeal: the distinction between the front line and the rest of the country blurred, and the draft was extended to prohibit all men aged 18-60 from leaving the country.  

The Secretary of State agreed to withdraw the decision to refuse OS’s asylum claim and to reconsider his claim in light of the new evidence, policies and his further submissions.  She has also agreed that if the new decision is adverse, she will grant an in-country right of appeal. The appeal therefore became academic and has been withdrawn by consent. 

What does this mean for others?

It means that the decision in PK & OS has not been overturned by the Court of Appeal. However, those now claiming asylum on the basis of draft evasion may well be able to show that the factual background has changed: in particular, that there is no longer any sensible distinction between a conflict zone and a non-conflict zone, or over who is summoned to the military. In light of that, PK & OS may be helpful for what it says about the conduct of the conflict and association with unlawful acts.

For fresh claimants, as well as for those awaiting a decision at the First-tier or Upper Tribunal, any decision will have to be made in accordance with the situation as it is when the appeal is heard, not at the point of application. The current situation can therefore be taken into account even if the application was made before the invasion.

The Home Office has now withdrawn all its Ukraine country policy and information notes, so it will be particularly important for Ukrainian asylum seekers to put in relevant background evidence and seek permission to amend their grounds of appeal where necessary.