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Upper Tribunal Rules on Protection Claims by Ukraine Draft-Evaders

As the war in Eastern Ukraine rages on, there has been a marked increase in the number of Ukrainians migrating to the UK. Many of them are young men seeking asylum, evading the military draft re-introduced in Ukraine on 1 May 2014. The scope of the draft was expanded in January 2015, and now all men between the ages of 20 and 27 are required to serve in the armed forces for at least one year.

This latest conflict on Europe’s doorstep has prompted the Upper Tribunal to clarify our obligations under international law to those evading enforced military service, in the case of PK (Draft evader; punishment; minimum severity) Ukraine [2018] UKUT 00241 (IAC). The Appellant, having left Ukraine in December 2013, had claimed asylum in the UK on the basis that the Ukrainian authorities had delivered a military call-up notice to his parents’ address in October 2016. A further notice was sent requiring him to present himself in February 2017, and the Appellant maintained that the Ukrainian military had been enquiring about his whereabouts. His claim was refused and he appealed to the First-Tier Tribunal, where his appeal was dismissed. The Appellant appealed to the Upper Tribunal on the basis that

  1. the Tribunal failed to determine whether the Appellant would be subject to pre-trial detention on return to Ukraine, and
  2. The Tribunal failed to determine whether those conscripted or mobilised into the Ukrainian army were at risk of being associated with breaches of International Humanitarian Law.

Protection for Draft-Evaders: An Overview

It must be noted that in general, fleeing one’s country in order to evade a military draft does not automatically give rise to an asylum claim. Cases must be examined carefully so as to determine whether the individual concerned qualifies for protection. The reason the individual is evading the draft is of course, important; avoiding military service for religious or political reasons may attract an asylum claim, subject to the available subjective and objective evidence. Additionally, The United Nations High Commissioner for Refugees has issued guidance indicating that if an individual evading the draft may be;

  1. Forced to participate in conflict activities that are considered by the individual to be contrary to the basic rules of human conduct,
  2. May suffer conditions of State military service so harsh as to amount to persecution, and/or
  3. the punishment for draft evasion or desertion is disproportionately harsh or severe,

A claim for protection may arise.

If there does not appear to be an element of persecutory treatment in the case, a claim for Humanitarian Protection may also be available under Article 3 of the European Convention on Human Rights, in cases where military service would result in the individual being subjected to torture or to inhuman or degrading treatment or punishment. This type of protection is expressed in similar terms in Article 15(b) of the EU Council’s Qualification Directive of 2004, referred to there as “Subsidiary Protection”.

The Ukraine Conflict – Evidence

According to the Ukrainian penal code, a range of sentences are applicable to those convicted of evading the draft, from a fine to up to three years’ imprisonment. Though the latter sounds relatively severe, as affirmed in the country guidance case VB and Another (Draft Evaders and Prison Conditions) Ukraine CG [2017] UKUT 79 (IAC), on the available evidence only a small fraction of draft-evaders had even been brought before Ukrainian criminal courts charged with evasion. Additionally, of the few who had been convicted, less onerous fines and suspended sentences of imprisonment were imposed.

The Tribunal in VB also agreed that there was simply insufficient evidence to determine whether those conscripted into the Ukrainian military were at real risk of being required to commit acts contrary to the basic rules of human conduct, or suffer conditions of State military service so harsh as to amount to persecution.

The case of PK

Returning to the pertinent case, the Tribunal were faced with a key question; by merely having the legal mechanisms in place to prosecute or punish draft-evaders, but little evidence of any enforcement, were those fleeing Ukraine entitled to international protection? With reference to the three circumstances outlined by the UNHCR in which a claim may arise in a draft-evasion case, and relying on the evidence of the situation in Ukraine raised in VB, The Tribunal held that there was (at para 27);

“no basis for concluding that the appellant would be at risk of pre-trial detention, or indeed any period of detention on his return to Ukraine”.

They elaborated (at paras 58-59) by stating;

“the appellant does not have a ‘well-founded fear of being persecuted’ because he does not face a real risk of being subject to a penalty for his draft evasion…Even if we are wrong in the above assessment, we doubt whether a fine, probation or a suspended sentence would be sufficiently serious to amount to persecution”.

The Tribunal also relied on the decision in VB in concluding that insufficient evidence existed to determine whether those conscripted into the Ukrainian military were were at real risk of being required to commit acts contrary to the basic rules of human conduct, or suffer conditions of State military service so harsh as to amount to persecution.

Draft-Evasion Claims Going Forward

Until fresh evidence of the realities of the Ukrainian conflict emerges, the path to protection in the UK has been narrowed for Ukrainian draft-evaders. However, protection claims are considered on a case-by-case basis, and depending on an individual’s circumstances, a claim on the basis of draft-evasion may be successful. This is particularly so if a claim was compounded with evidence that the individual concerned is at higher risk of a more severe prosecution if returned to Ukraine, perhaps by virtue of their activities or interactions with the Ukrainian authorities.

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