Case No. UKUT-00241-(IAC)

[2001] EWCA Civ 681, at [62], Next I should emphasise that it is plain (indeed uncontentious) that there are circumstances in which a conscientious objector may rightly claim that punishment for draft evasion would amount to persecution: where the military service to which he is called involves acts, with which he may be associated, which are contrary to basic rules of human conduct; where the conditions of military service are themselves so harsh as to amount to persecution on the facts; where the punishment in question is disproportionately harsh or severe. 51. The observation by Laws LJ focuses on “punishment” for conscientious objectors where the military service may associate them with inhuman conduct. The Court of Appeal did not consider the nature or the degree of the punishment that would entitled a person to be recognised as a refugee. 52. The issue with which the Court of Appeal had to grapple in Krotov was whether a particular conflict required international condemnation before a refusal to participate in military service entitled a person to refugee status. The case concerned a deserter from the Russian army who objected to fighting in Chechnya. The deserter was facing a term of imprisonment for his desertion (at [3]) and the appeal was advanced by his representatives on the basis that he would face punishment for desertion (see [9] & [21]). 53. The Court of Appeal did not comment on the nature of the punishment faced by the deserter, but the anticipation that there would be punishment permeated the submissions made by the parties and the Court’s own assessment (e.g. [27], [37], [39], [45], and especially [51]). 54. In her further written submissions, Ms Norman relied on BE (Iran) [2008] EWCA Civ 540, and in particular Lord Justice Sedley’s conclusion at [40] In our judgment, on the limited facts before the tribunal, this appellant was entitled to succeed in his claim for international protection. It is common ground that, once it is established that the individual concerned has deserted rather than commit a sufficiently grave abuse of human rights, whatever punishment or reprisal consequently faces him will establish a well-founded fear of persecution for reasons of political opinion. 55. BE concerned a regular soldier in the Iranian army who deserted rather than plant landmines in a populated area. He previously deserted for the same reason and had been sentenced to 3 months imprisonment. There was therefore a strong likelihood that he would face actual punishment, and that the penalty was serious as it involved the deprivation of his liberty. The Court of Appeal were concerned with whether there was a difference of approach to refusals to participation in military service during peace time and times of war (see [11] & [13]). In his references to Krotov Lord Justice Sedley noted, at [32], that the Court of Appeal, … held that the prospect of punishment for a genuine conscientious refusal to participate in inhumane acts was sufficient to attract international protection as a refugee. 56. His Lordship then set out an extract from paragraph 37 of the judgment of Potter LJ in Krotov . In my view, the crimes listed above, if committed on a systematic basis as an aspect of deliberate policy or as a result of official indifference to the widespread actions of a brutal military, qualify as acts contrary to the basic rules of human conduct in respect of which punishment for a refusal to participate will constitute persecution within the ambit of the Convention relating to the Status of Refugees (1951). 57. VB found that there was no real risk that a draft evader would be imprisoned for refusing to be conscripted. A t paragraph 67 the Tribunal noted, after considering the background and expert evidence before it, that only a couple of persons appeared to have actually been sent to prison for conscription or mobilisation evasion, with evidence of suspended sentences, probation or fines in only tens of other cases. On the basis of the information before the Tribunal, the overwhelming majority of over 100,000 draft evaders have faced no consequences at all for their actions (paragraph 69). This is reflected in the first headnote to VB . 58. Based on the detailed assessment carried out in VB , and applying that guidance to this appellant’s particular circumstances, we find it is not reasonably likely that he will face any criminal or administrative proceedings for avoiding conscription. There is therefore no real risk that he will be prosecuted or that a penalty will be imposed on the appellant for his draft evasion. None of the authorities relied on by Ms Norman can be properly understood as entitling a draft-evader or deserter to refugee status if there is no real risk that they will be subject to prosecution, punishment or penalty. In Sepet , Krotov and EB there was a real risk of punishment. The higher Courts were not dealing with a situation where the prospect of punishment was as remote as it is in the context of Ukraine. There is no authority to support the appellant’s contention that the mere existence of a legal requirement of conscription or the existence of a mechanism for the prosecution or punishment of a person refusing to undertake military service is sufficient to entitle them to refugee status. It is not sufficient that national legislation makes provision for the imposition of a penalty, whether it be custodial or financial, if there is no real risk of that penalty actually being imposed. While Ms Norman relies on a UNHCR report from September 2015 suggesting there had been a stepping up of prosecutions for draft evaders, this document was already considered by the Tribunal in VB . Having regard to all the evidence that was before the judge, we find that 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. The judge’s failure to consider the ‘IHL point’ is therefore not material as there was simply insufficient evidence that the appellant faced a real risk of being punished. 59. 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 concept of persecution for the purposes of the Geneva Convention (and indeed the Qualification Directive) requires that the harm feared must attain a substantial level of seriousness. Although persecution is not defined in the Convention Lord Bingham described it as a ‘strong word’ in Sepet (see also MI & Anor v Secretary of State for the Home Department [2014] EWCA Civ 826, and Amare v Secretary of State for the Home Department [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 Andre Shepherd v Bundesrupublik Deutschland C-472/13, which analysed Article 9(2)(e) of the Qualification Directive in the context of an America soldier who sought asylum in Germany on the basis that he would be required to participate in the Iraqi conflict which he considered to be both illegal and one involving the commission of war crimes. While the CJEU judgment provides guidance on the operation of Article 9(2)(e) it does not deal with the specific issues posed to us. 63. The grounds additionally criticise the judge for stating that the appellant “is not a well man” and that he may get another medical deferral, given that his medical condition was regarded as temporary and was treated between 2004 and 2008. Any error of law by the judge in applying the historic deferral of military service to the role the applicant may be given if mobilised clearly falls away in light of our assessment above. Notice of Decision The appeal is dismissed Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 Unless and until a Tribunal or court directs otherwise, the appellant in this appeal is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings. 1 May 2018 Signed Date Upper Tribunal Judge Blum