Case No. UKUT-00241-(IAC)

[2004] EWCA Civ 69, although neither authority was served on the Tribunal. She additionally drew our attention to the respondent’s Country Policy and Information Note on Ukraine: Military Service, version 4.0, April 2017, and in particular, to 3.1.2. 3.1.2 Compulsory national/military service is a prerogative of sovereign states. A requirement to undertake – or punishment for failing to complete – national/military service will only constitute persecution where: • military service would involve acts, with which the person may be associated, which are contrary to the basic rules of human conduct; • the conditions of military service would be so harsh as to amount to persecution; or • the punishment for draft evasion or desertion is disproportionately harsh or severe. None of those conditions are generally met in respect of service in Ukraine. 35. Ms Norman submitted that, as the appellant was required to undertake military service, his refusal to do so entitled him to refugee status. 36. Although neither party drew our attention to the terms of the Refugee Convention itself, or Directive 2004/83/EC (the Qualification Directive) or the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, 2006 No. 2525 (the 2006 Regulations), we consider it necessary to frame our deliberation by reference to these provisions. 37. Under Article 1(A)(2) of the 1951 Convention relating to the Status of Refugees, as amended by the New York Protocol dated 31 January 1967, the term 'refugee' is to apply to any person who 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 38. The United Nations Handbook on Procedures and Criteria for Determining Refugee Status, reissued in December 2011, states, at paragraph 51, There is no universally accepted definition of 'persecution', and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights-for the same reasons-would also constitute persecution. 39. Paragraphs 167 to 174 of the Handbook deal with deserters and persons avoiding military service. Paragraph 171 of the Handbook reads, Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to the basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution. 40. The reference in the Handbook to “punishment” for desertion or draft evasion suggests it is a necessary element in determining refugee status for someone who may be associated with military acts contrary to the basic rules of human conduct, and that such “punishment” could be regarded as persecution “in the light of all other requirements of the definition.” The Handbook is otherwise silent as to the nature of the “punishment”. 41. The Qualification Directive prescribes minimum standards for the qualification and status of individuals as refugees or otherwise in need of international protection. Article 9 of the Directive, entitled 'Acts of persecution', defines those acts in its first and second paragraphs, as follows: 1. Acts of persecution within the meaning of Article 1(A) of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). 2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory;