Case No. UKUT-00241-(IAC)

[2005] EWCA Civ 1600, at [27]). Article 9(1) (a) & (b) of the Qualification Directive (paragraph 41 supra ) makes plain that the feared ill treatment must be at a sufficiently serious level so as to constitute a severe violation of basic human rights. We read Article 9(1) as informing and conditioning the nature of the acts that may constitute persecution, including the prosecution or punishment identified in Article 9(2)(e). The same must apply in respect of Regulation 5 of the 2006 Regulations. 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. 60. 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. 61. On the basis of the detailed assessment undertaken in VB , we find there is no real risk that the appellant will be prosecuted or face any penalty, but that even if he is, there is no real risk that the punishment or penalty he is likely to face, considered on the lower standard of proof, will attain a substantial level of seriousness sufficient to amount to persecution. 62. In reaching our decision we have also considered the judgment of the CJEU in