Case No. UKUT-00241-(IAC)

30. In her skeleton argument before the First-tier Tribunal Ms Norman raised, as an issue which it was submitted required determination, the question whether there was a real risk that the appellant would be called upon to undertake military service in circumstances where such service might associate him with internationally condemned acts. It was argued that if there was such a risk any penalty for refusal to be conscripted was persecutory. The skeleton argument referenced various human rights reports in support of the proposition that there was now a conflict in Crimea where the Ukrainian forces were committing atrocities. 31. The judge acknowledged these submissions but his conclusion [paragraph 10 supra ] that VB had determined the issue whether military service may associate a conscriptee with acts that are contrary to basic rules of human conduct was inaccurate. VB did not address the issue whether conscriptees were at risk of being associated with breaches of IHL. This is apparent from paragraph 7 of VB [paragraph 15 supra ]. 32. VB did not consider whether the Ukrainian conflict involved acts contrary to basic rules of human conduct and the judge misdirected himself in assuming otherwise. We additionally accept that the judge failed to satisfactorily engage with the background documents before him relating to breaches of IHL, or to make any reference to an Office of the High Commissioner of Human Rights (OHCHR) document, despite the fact that this document was specifically identified in the appellant’s skeleton argument before the First-tier Tribunal. 33. Once again, we must determine whether the misdirection by the judge and his failure to engage with the background evidence constitutes a material legal error. 34. In her oral submissions at the ‘error of law’ hearing Ms Norman submitted that the existence of a legal requirement to undertake military service renders a person a refugee if they refuse to be conscripted, regardless of the nature of any penalty, including a fine, if the military service would associate that person with acts contrary to the basic rules of human conduct. She relied on the authorities of