Case No. UKUT-00241-(IAC)

20. In her written grounds Ms Norman accepts that the judge’s finding that the appellant “… is likely to be dealt with by way of fine” is “unassailable” in light of the conclusions reached in VB . She contends however that the judge failed to determine whether the appellant would nevertheless face the prospect of pre-trial detention on being returned to Ukraine. 21. In the skeleton argument before the judge the issue of pre-trial detention on return to Ukraine was specifically raised. The judge failed to engage with this issue. This failure constitutes an error of law. We must nevertheless be satisfied that the error is material. 22. Ms Norman contends that the error was material as it was open to the judge to find that there was a real risk that the appellant would face pre-trial detention. She relies upon paragraph 103 of VB . Whilst there have been submissions about the pressure under which the Ukrainian government currently finds itself from war and economic problems it remains a member of the Council of Europe, and it has not been contended by anyone that Ukraine is a failing state without an operating criminal justice system. In these circumstances we find the evidence of Professor Bowring that the appellants would be checked against computer systems and found to be convicted offenders without any appeal against sentence and with prison sentences outstanding on re-entry to Ukraine compelling. We also accept Mr Symes' submission that the appellants cannot be required to lie in response to standard questioning on re-entry which might reasonably be expected to include issues regarding criminal convictions or military service. We note the view of the Australian Refugee Review Tribunal in their Country Advice Ukraine decision dated 11th December 2009 at page 3 of the document where it is said: "If a person has broken the law by evading the draft, their return to Ukraine is likely to attract the attention of the authorities – particularly if they enter Ukraine through official channels." This is also consistent with the Guardian newspaper report of 10th February 2015 which refers to draft-dodgers being arrested at border checkpoints in the context of a government decree regulated foreign travel for those subject to mobilisation. It is also consistent with the observation by UNHCR in their September 2015 report at paragraph 34 which records fears of being mobilised at official border crossings. We therefore accept Professor Bowring's evidence that as a result it is highly likely that the appellants would be taken into detention on arrival in Ukraine. We find it highly unlikely that there could be any other response given their return as convicted criminals with outstanding prison sentences. 23. While accepting that the two appellants in VB had been convicted in absentia, Ms Norman submits that the same process of re-entry and questioning about military service would apply to the appellant in view of the judge’s findings that he had received and failed to answer call-up papers. 24. We accept that the appellant cannot be expected to lie about his failure to answer the call-up papers, and that he is likely to come to the attention of the authorities if returned in Ukraine. We proceed on the basis that there is a real risk that he will be questioned concerning his failure to answer the call-up papers. We are not however persuaded that there is a real risk that he will face pre-trial detention. 25. The two appellants in VB had been prosecuted and convicted of draft evasion and sentenced to 5 years and 2 years imprisonment respectively. They had not appealed against their sentences. They were facing return to Ukraine as convicted criminals with outstanding custodial sentences. The Tribunal found there was a real risk that anyone being returned as a convicted criminal sentenced to a term of imprisonment would be detained on arrival, and that conditions of detention and imprisonment risked breaching article 3 (headnotes 2 & 3). It was for these reasons that the Tribunal allowed their appeals on article 3 grounds. 26. The appellant, by contrast, has no convictions and there is no evidence that any prosecution has been mounted against him or any charges laid against him. His circumstances are materially different to the appellants in VB . 27. We remind ourselves of the 1 st headnote of VB . Given the findings that a draft evader avoiding conscription is not reasonably likely to face criminal or administrative proceedings, we see no basis for concluding that the appellant would be at risk of pre-trial detention, or indeed any period of detention on his return to Ukraine. If there is no real risk that the appellant would face any such proceedings, there would be no reason for the Ukrainian authorities to detain him. Nor was Ms Norman able to draw our attention to any background country evidence suggesting that draft evaders returning to Ukraine who were not subject to any criminal or administrative proceedings for their avoidance of military service have been detained. We additionally note the absence of any aggravating features such as being an ethnic Russian or leaving Ukraine in order to avoid call-up (the appellant left Ukraine before he received any call-up papers). 28. We are reinforced in our conclusion by reference to the presumption of bail in Ukraine. The new Criminal Procedural Code, which came into force on 19th November 2012, provides for automatic bail rather than pre-trial detention in the majority of cases ( VB , at [19]). There is therefore a presumption in favour of bail for those awaiting trial and the removal of criminal penalties for minor matters ( VB , at [77]). We can find no reason why the presumption in favour of bail, even if the Ukrainian authorities do manifest an adverse interest in the appellant, would not apply to him. 29. For the reasons given above we are satisfied that even if the judge had engaged with the issue of pre-trial detention he would not have been entitled to conclude that there was a real risk of such detention. The appeal would inevitably have failed on this basis.