In PK (Draft evader; punishment; minimum severity) Ukraine [2018] UKUT 241 (IAC) the Upper Tribunal has refused to protect a Ukrainian draft evader despite acknowledging that there is evidence that taking part in the conflict might involve committing acts contrary to the “basic rules of human conduct”. The tribunal found that in reality most people were not punished for draft evasion, so there was no real risk of the appellant being punished for his refusal to take part in the fighting.

Surprisingly, the tribunal went on to rule, in apparent conflict with House of Lords and Court of Appeal authority, that even if the appellant were punished it would not be serious enough to amount to persecution. The judgment also considers that there would be no breach of Article 3 of the European Convention on Human Rights from prison conditions in the Ukraine because the appellant would not be imprisoned in the first place.

PK is a Ukrainian national who arrived in the UK in 2014, before the current conflict in Ukraine began. The Ukrainian army sent call-up papers to him at his parents’ address in October 2016 and again in February 2017, which led him to claim asylum in March 2017. The Secretary of State refused his claim and his appeal was dismissed by the First-tier Tribunal, which considered that it was bound to do so by applying the VB case cited in the headnote.

No reasonable likelihood of prosecution for draft evasion

The Upper Tribunal ruled that the lower tribunal had applied VB incorrectly. The First-tier Tribunal’s understanding from VB was that conscription in the Ukrainian army would not involve committing acts in breach of international humanitarian law. In fact, VB explicitly states that it was not possible to provide country guidance on that issue due to the lack of evidence. In this case PK had been able to provide evidence that participating in the conflict might involve such acts.

Nevertheless, the Upper Tribunal dismissed the appeal because that error of law was not material. VB also found that there was no reasonable likelihood at present of a prosecution for draft evasion in Ukraine.

The Upper Tribunal also dismissed PK’s claim that being detained in prison in Ukraine would breach his human rights under Article 3 ECHR because there was not a real risk of a prosecution, and therefore not a real risk of detention. The reasoning of this part of the decision is depressing but not controversial: just another instance of the Upper Tribunal following a country guidance case rather than considering fresh evidence.

Even if prosecutions were happening, that would not automatically equal persecution

Shockingly, the tribunal then went on to explain that it would have made the same decision even if it was accepted that prosecution were taking place because the punishment would not be enough to qualify as persecution.

Thus understood, a person will only be entitled to refugee protection if there is a real risk that the prosecution, penalty or punishment they face for refusing to perform military service in a conflict that may associate them with gross human rights abuses will result in a severe violation of their basic human rights. A deprivation of liberty may be a sufficiently serious violation, depending on its length and the person’s particular characteristics, but a suspended sentence, probation or fine will generally not be a sufficiently serious violation. There was no evidence before the judge suggesting that any of these punishments would be applied in a disproportionate manner to the appellant.

We find that any other result would frustrate the fundamental principles underlying the Refugee Convention and the Qualification Directive, that of surrogate protection. There is no need for surrogate protection if there is no real risk that a person will face serious ill-treatment sufficient to amount to persecution.

The tribunal made these comments despite considering Lord Bingham’s speech in Sepet v Secretary of State for the Home Department [2003] UKHL 15 and a series of later Court of Appeal cases which clearly state that any punishment for refusing to participate in acts contrary to international humanitarian law will be sufficient for a successful asylum claim. The Upper Tribunal appears to have imported the minimum seriousness threshold from the jurisprudence on Article 3 without any justification.

This mistake did not affect the outcome for PK because he would have lost for the other reasons given, but it does display worrying lack of regard for the purposes of the Refugee Convention. The treaty was made in reaction to gross abuses of human rights and should provide a high level of protection to individuals who refuse to participate in such acts. The higher courts have already recognised that any punishment for taking a moral stance against war crimes will amount to persecution and justify providing international protection to the person concerned. Regrettably, the Upper Tribunal has declined to follow suit.

Update: the Court of Appeal has since granted permission to appeal in this case. We will cover its judgment on the website once delivered.