The Appellant, a Ukrainian national, claimed asylum on 23 March 2015 having received notices that he was to be mobilised to the Ukrainian Armed Forces. He feared ill treatment on the basis that he was a draft evader. The application was refused on 14 February 2018 and he appealed. The First Tier Tribunal decision held that call-up papers had been delivered to his registered address and that the military authorities had attended his father’s home, but that it was not reasonably likely that he would face a custodial sentence for draft evasion.
The Upper Tribunal granted OS permission to appeal and heard his appeal along with that of another draft evader, PK, on 3-4 June 2020. In a decision promulgated as PK & OS (basic rules of human conduct) Ukraine CG [2020] UKUT 314 (IAC) the UT found that there were acts contrary to international humanitarian law taking place, but that the Appellant was not likely to be associated with them as he could not, on the basis of the rules at the time, be sent to the front line known as the ATO zone. However, it accepted that for an appellant who could show such a connection, any penalty for refusal to serve would amount to persecution.
The Appellant sought permission to appeal to the Court of Appeal. At an oral permission hearing on 6 September 2021, Popplewell LJ and Carr LJ granted permission to appeal on one ground which has two limbs. First, that the UT arguably misapplied the relevant standard of proof and Shepherd v Bundesrepublik Deutschland (Case C- 472/13) [2015] 3 WLR 611 in analysing the degree to which the Appellant could be connected to acts contrary to international humanitarian law. Secondly, the UT arguably erred in failing to consider the proposition advanced by the Appellant that any compelled participation in the Ukrainian military would be capable of causing mental anguish amounting to a human rights abuse.
The appeal was due to be heard on 30 March 2022.
Between the grant of permission and the listed appeal hearing, the Appellant and his young children had attained seven years’ residence in the UK. He submitted a fresh claim to the Respondent arguing the mental anguish point upon which he had already been granted permission and on the basis of Article 8, raising paragraph 276ADE of the Immigration Rules and s.117B NIAA 2002.
Soon before the appeal hearing, on 25 February 2022, Russia invaded Ukraine. This had two major consequences for the background of this appeal: the distinction between the front line and the rest of the country blurred, and the draft was extended to prohibit all men aged 18-60 from leaving the country.
The Secretary of State agreed to withdraw the decision of 14 February 2018 in which she had refused OS’s asylum claim and to reconsider his claim in light of the new evidence, policies and his further submissions. She has also agreed that if the new decision is adverse, she will grant an in-country right of appeal. The appeal therefore became academic and has been withdrawn by consent.
So far as other similar claims are concerned, the decision maker must decide them in accordance with the facts and evidence as they are at the date of decision. This means that if a case is outstanding at the First Tier Tribunal or Upper Tribunal, the Tribunal will have to determine the case on the basis of the situation in Ukraine at the time of determination, not at the time that the appeal was lodged. Ukrainian asylum seekers currently awaiting a decision may wish to seek to amend their grounds of appeal to reflect the current situation.
Related barristers: Anthony Metzer KC
