PK v Secretary of State for the Home Department

A person who refuses compulsory military service does not qualify for refugee protection merely because domestic law provides for conscription and a penalty for evasion. There must be a real risk that prosecution or punishment will in fact occur.

Where service could associate the person with acts contrary to the basic rules of human conduct, prosecution or punishment for refusal need not be disproportionate or discriminatory. However, under Article 9(1) of Directive 2004/83/EC (Qualification Directive) and regulation 5(1) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, the feared measure must still attain the minimum severity of persecution. A fine, probation or suspended sentence will generally not do so.

The appellant, a Ukrainian national, appealed against the First-tier Tribunal’s dismissal of his asylum appeal. He had received call-up notices and feared consequences as a draft evader, including possible association through military service with breaches of international humanitarian law.

The First-tier Tribunal found that he would probably be dealt with by a fine and dismissed the appeal. The appellant contended that the judge had failed to decide the risk of pre-trial detention and had wrongly treated VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 00079 (IAC) as resolving the international-humanitarian-law issue.

The central issues were whether those errors were material and whether a legal obligation to serve, coupled with a possible penalty for refusal, could itself establish refugee status.

1. Appeal dismissed. The First-tier Tribunal erred in treating VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 00079 (IAC) as having determined whether Ukrainian military service might associate a conscript with acts contrary to basic rules of human conduct. VB had expressly not considered that issue. The error was nevertheless immaterial.

2. The appellant was likely to be questioned about his failure to answer the call-up notices, but there was no real risk of pre-trial detention. Unlike the appellants in VB, he had not been prosecuted, convicted in absentia, or sentenced to imprisonment. The country guidance established that draft evaders were not reasonably likely to face criminal or administrative proceedings. The Ukrainian presumption in favour of bail reinforced that conclusion.

3. Article 9(2)(e) of Directive 2004/83/EC (Qualification Directive) and regulation 5(2)(e) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 identify prosecution or punishment for refusal of military service involving relevant international crimes as a category distinct from disproportionate or discriminatory punishment. Yet Article 9(1) and regulation 5(1) condition every such example: the feared prosecution or punishment must be sufficiently serious to constitute a severe violation of a basic human right.

4. Accordingly, a legal requirement of conscription and an available mechanism for punishment do not suffice. The person must face a real risk of an actual penalty, and that penalty must meet the minimum severity of persecution. The appellant faced no real risk of proceedings or penalty. In any event, a fine, probation or suspended sentence would generally not meet that threshold on the evidence.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the result reached by the First-tier Tribunal.

• First-tier Tribunal: Judge Frankish dismissed the appellant’s appeal against the refusal of his asylum claim in a decision promulgated on 25 October 2017.