Case No. UKUT-00241-(IAC)

CG [2017] UKUT 00079 (IAC) did not consider whether the Ukrainian conflict involved acts contrary to basic rules of human conduct. DECISION AND REASONS 1. This is an appe al against the decision of Judge of the F irst-tier Tribunal Frankish ( the judge ) , promulgated on 25 October 2017 , dismissing the a ppellant ’s appeal against the r espondent ’s decision dated 5 September 2017 refusing his asylum claim. Factual B ackground 2. T he following is a summary of the material elements of the appellant’s protection claim , as developed before the First-tier Tribunal, necessary for determining whether the First-tier Tribunal ’s decision contains material errors of law . 3. The appellant is a national of Ukraine , date of birth 30 January 198 1 . He is Catholic and worked as a carpenter. He and his wife left Ukraine in December 2013. They illegally entered the UK on an unknown date and were arrested on 23 December 2014 and granted Temporary Admission. 4. A military call-up notice issued by the Ukrainian authorities was delivered to his parents’ address requiring the appellant to present himself to the mili tary in October 2016. A further notice was similarly delivered requiring him to present himself in February 2017. The appellant maintains that the military authorities have been enquiring about his whereabouts . 5. The appel lant, with his wife as a dependa nt, claimed asylum in March 2017. He fear ed that he would be subjected to serious ill-treatment as a draft evader and because his political activities as a supporter of the Party of the Regions. We need say no more in relation to the 2 nd basis of the protection claim as the political landscape in Ukraine has materially changed since the appellant departed . The appeal before the First-tier Tribunal concentrated almost exclusively on the consequences of the appellant’s draft evasion. The First-tier Tribunal decision 6. The judge accepted that conscription call-up papers had been delivered to the address of the appellant’s parents, which was his official address. The judge found that the appellant ’s conscription had been deferred in the past on account of an illness (cerebral arachnoiditis) . 7. The judge then considered whether any military service undertaken by the appellant would associate him with acts that are contrary to basic rules of human conduct as defined by international law. This was identified by the judge as ‘Question One’. Whether the appellant would go to prison if he refused conscription and , if so, whether the conditions were such as to breach article 3, was identified by the judge as ‘Question Two’. 8. In answering these questions, the judge relied on the Upper Tribunal Country Guidance decision in VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 00079 (IAC) . The headnote s of VB read s , 1. At the current time it is not reasonably likely that a draft-evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act, although if a draft-evader did face prosecution proceedings the Criminal Code of Ukraine does provide, in Articles 335, 336 and 409, for a prison sentence for such an offence. It would be a matter for any Tribunal to consider, in the light of developing evidence, whether there were aggravating matters which might lead to imposition of an immediate custodial sentence, rather than a suspended sentence or the matter proceeding as an administrative offence and a fine being sought by a prosecutor. 2. There is a real risk of anyone being returned to Ukraine as a convicted criminal sentenced to a term of imprisonment in that country being detained on arrival, although anyone convicted in absentia would probably be entitled thereafter to a retrial in accordance with Article 412 of the Criminal Procedure Code of Ukraine. 3. There is a real risk that the conditions of detention and imprisonment in Ukraine would subject a person returned to be detained or imprisoned to a breach of Article 3 ECHR . 9. At [28] t he judge briefly mentioned three human rights reports adduced by the appellant’s representative in order to demonstrate that the situation in Ukraine had deteriorated since the promulgation of VB and that both Ukrainian and Russian forces were committing atrocities in the Crimean conflict. 10. At [29] the judge stated, Reverting to the issue of the status of country guidance case law, it is long established that it is to stand until found to be wrong in law (