PK (Ukraine) v The Secretary of State for the Home Department

In an asylum claim based on draft evasion, a tribunal must engage satisfactorily with material and up-to-date country evidence about the military service feared and the likely consequences of non-compliance. An appellate tribunal reversing a first-instance factual finding must explain how and why it does so, particularly where oral evidence was heard below. A tentative alternative view cannot resolve an important legal question that has not been properly analysed. Where the evidence and likely treatment on return remain insufficiently assessed, the proper course is to allow the appeal and remit the case for reconsideration.

A Ukrainian national claimed asylum after receiving call-up notices and failing to report for military service. He feared ill-treatment as a draft evader and association with acts contrary to International Humanitarian Law. The First-tier Tribunal accepted the notices as genuine, treated VB v SSHD [2017] UKUT 79 as authoritative, rejected the claimed risk and found that he would probably receive a fine rather than face Article 3 ill-treatment.

The Upper Tribunal accepted that the First-tier Tribunal had not adequately addressed the International Humanitarian Law evidence, but dismissed the appeal after finding no real risk of prosecution, punishment or pre-trial detention. It added, tentatively, that a fine, probation or suspended sentence might not be sufficiently serious to amount to persecution. The Court of Appeal considered whether that approach was legally adequate, particularly in light of further country evidence and the likely consequences of return.

1. Disposition. The appeal was allowed and the case was remitted to the Upper Tribunal. The Court of Appeal did not determine the substantive question whether the appellant was entitled to refugee status.
2. Country evidence. The Upper Tribunal accepted that the First-tier Tribunal had failed properly to consider evidence concerning breaches of International Humanitarian Law, but itself failed satisfactorily to engage with the relevant background documents. That was an error of law. The post-country-guidance evidence required proper assessment.
3. Findings on return. The Upper Tribunal’s finding that there was no real risk of criminal or administrative proceedings did not sit comfortably with its finding that the appellant would come to the authorities’ attention and be questioned. It also did not explain how or why it reversed the First-tier Tribunal’s finding that the appellant would probably be prosecuted and fined. That omission was particularly significant because the First-tier Tribunal had heard oral evidence.
4. Unresolved legal issue. Whether a draft evader facing non-custodial punishment for failing to serve in an army that regularly commits acts contrary to International Humanitarian Law may qualify for refugee status was an important question. The authorities identified as relevant included Sepet v Secretary of State for the Home Department [2003] UKHL 15, Krotov v Secretary of State for the Home Department [2004] EWCA Civ 69, Davidov v Secretary of State for the Home Department [2005] 1 SC 540 and BE (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 540. The question had not received proper analysis on the evidence or the likely consequences of return. The Upper Tribunal’s tentative alternative view could not resolve it, so remittal was appropriate.

• Court of Appeal (Civil Division) — [2019] EWCA Civ 1756: appeal allowed and case remitted to the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber) — appeal dismissed on 2 May 2018.
• First-tier Tribunal — appeal dismissed on 25 October 2017.