On 6th September 2021, the Court of Appeal granted permission for OS, represented by Head of Chambers Anthony Metzer QC leading Julian Norman of Drystone Chambers, to appeal the country guidance decision of the Upper Tribunal in PK and OS (basic rules of human conduct) Ukraine CG  UKUT 314 (IAC).
In PK & OS, the Upper Tribunal had held that although the Ukrainian Armed Forces were committing acts contrary to international humanitarian law, it was not ‘reasonably likely’ that the appellants would be mobilised to roles providing indispensable support for those acts. It held that where a person is mobilised to such a role, any punishment for refusing would amount to persecution. However, the UT’s conclusion was that OS himself would not be reasonably likely to be sent to the ATO Zone where these abuses were occurring, and would not be providing indispensable support.
OS appealed the decision on the basis that the Tribunal had misapplied the threshold as to ‘indispensable support,’ and had not addressed the further question as to whether compulsory recruitment to a military force committing human rights abuses was in itself capable of causing mental anguish, irrespective of the role assigned.
Popplewell LJ and Carr LJ granted permission, holding that:
- It is arguable that the UT misunderstood or misapplied the ECJ case of Shepherd and that the relevant standard of proof is whether there is a sufficient risk, not a likelihood, of serving in an indispensable support role; and
- It is arguable that the mental anguish, resulting from serving in a role unconnected with acts of the military, constitutes conduct contrary to the basic rules of human conduct raises and this raises an important point of principle.
Anthony Metzer QC and Julian Norman were instructed by Nozima Rahkimjonova of Sterling Law. The Secretary of State for the Home Department was represented by Zane Malik QC of 39 Essex Chambers.
Related barristers: Anthony Metzer QC
Related practice areas: Immigration and Public Law