Tribunal decisions

The decision

Upper Tribunal
Appeal Number: UI-2021-001364
(Immigration and Asylum Chamber)
On appeal from PA/03144/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 23rd June 2022

On the 25th April 2022

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

roman khomjak
[NO ANONYMITY ORDER]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms Jane Heybroek of Counsel, instructed by Sterling Lawyers Ltd
For the respondent: Mr David Clarke, a Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant appeals with permission from the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision on 27 March 2020 to refuse him refugee status under the 1951 Convention, humanitarian protection, or leave to remain in the United Kingdom on human rights grounds. The appellant is a citizen of Ukraine.
2. Mode of hearing. The hearing today took place face to face.

Background
3. The appellant was born in 1985 and is now 37 years old. He claims to have entered the UK in September 2018, clandestinely in a lorry. He was not encountered until 23 September 2019, when he was served with a RED00001 notice as an illegal entrant. He was detained the next day, and claimed asylum. Following a screening interview, he was released on reporting conditions on 14 October 2019.
4. On 27 March 2020, the respondent rejected the appellant’s claims under the Refugee Convention, in humanitarian protection, and on human rights grounds. The Secretary of State later reviewed the appellant’s case. She relied on VB and another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 79 (IAC). She maintained her decision.
First-tier Tribunal decision
5. The appeal was heard in the First-tier Tribunal on 1 November 2021. The appellant produced evidence that he had studied at University, qualifying as a specialist engineer, including some military skills training. He had not yet undertaken active military service. He described himself as a ‘reservist’ and was able to produce a Temporary Certificate, said to be a substitute for a military ID. The appellant was scared to return: he did not want to have to kill people. He had seen the effect on his father’s mental health following a period of military service in Afghanistan.
6. The appellant had worked for a time in Russia and he had faced a level of societal discrimination from ethnic Ukrainians for that reason. He feared serious mistreatment from non-state actors by reason of having worked in Russia. He also feared that if forced to serve in the Ukrainian army, he would face mistreatment because of his Russian links.
7. The appellant had his mother and his son in Ukraine still, and was in contact with them. He was no longer in contact with his father.
8. The First-tier Judge did not find the appellant generally credible, but he did accept that if returned to Ukraine, he faced military conscription. The evidence was that conscription was increasing in Ukraine.
9. The judge also accepted that the appellant could not be expected to hide having worked in Russia, and that he had already faced a degree of harassment and discrimination when he returned from Russia:
“72. I have accepted that the appellant faced a degree of harassment and discrimination when he returned from Russia. I find that he has demonstrated to the required standard that some sections of the Ukrainian population, particularly those from his home area, found his decision to go and work in Russia unacceptable, and this presented him with problems upon his return. Based on all the evidence, however, I find that the appellant has not demonstrated that such treatment is likely to be universal across the country, given the very mixed population, the large number of ethnic Russians, and the lack of evidence about significant societal conflict.
73. For these reasons, I find that even if the appellant faced the risk of serious harm from non-state actors, and if state protection was not available, it would not be unreasonable to expect him to relocate away from his home area.”
10. The appeal was also dismissed on human rights grounds under Articles 2, 3 and 8 ECHR. The appellant could not bring himself within paragraph 276ADE and there were no exceptional circumstances making his removal from the UK disproportionate.
11. The appellant appealed to the Upper Tribunal.
Permission to appeal
12. The appellant’s grounds of appeal do not challenge the rejection of his asylum and humanitarian protection claim. The appellant challenged only the Article 8 ECHR finding, arguing that the First-tier Judge had conflated the ‘serious’ harm’ test with ‘significant obstacles to integration’ which is the correct test under paragraph 276ADE(vi).
13. Permission to appeal was granted on the basis that arguably, the First-tier Judge had not engaged with paragraph 276ADE(vi) and whether there would be very significant obstacles to integration on return. The finding that he would not be at risk of Article 3 ECHR serious ill-treatment was not the same as a proper consideration of whether he would face significant obstacles on return.
Rule 24 Reply
14. The respondent in her Rule 24 Reply argued that the consideration of Article 8 ECHR in the First-tier Tribunal decision was adequate:
“4. It is submitted that the decision has to be read as a whole. There is no challenge to the findings made in relation to the protection claim, which is relevant in terms of the context against which the assessments were made under the very significant obstacles test. At [77]-[78], the First-tier Judge clearly had regard to relevant matters as part of the broad evaluative judgment required. Direct reference is made to the test at [76]. It is submitted that the First-tier Judge was entitled to refer to the previous findings and assessment made as to the discrimination faced, and any reference to ‘serious mistreatment’ [78] or not being at ‘serious risk’ [80] is not the imposition of a higher threshold, but a reflection of the findings that have already been made.”
15. That is the basis on which this appeal came before the Upper Tribunal.
Upper Tribunal hearing
16. The Tribunal is aware of the change in the factual matrix in Ukraine since this appeal was decided in November 2021. Russia invaded Ukraine on 24 February 2022 and as at the date of writing this decision (25 April 2022), the conflict continues. However, that does not entitle the Tribunal to reopen the November 2021 decision of the First-tier Tribunal unless there is an error of law in the decision as drafted.
17. I heard oral argument from Ms Heybroek for the appellant and from Mr Clarke for the respondent. I have had regard to the documents to which I was taken, and to those arguments. I indicated at the hearing that I did not consider that the grounds of appeal established that there was a material error of law in the First-tier Tribunal.
Analysis
18. There is no challenge by the appellant to the findings of the First-tier Tribunal on the Refugee Convention, humanitarian protection or Article 3 ECHR.
19. His challenge is confined to the narrow point of whether the First-tier Judge’s decision is legally sound on paragraph 276ADE, in that he applied properly the ‘very significant obstacles’ test.
20. The First-tier Judge’s reasoning at [76]-[78] is determinative of that issue. The judge noted that the appellant relied on paragraph 276ADE, and that the appellant based his contention that there would be ‘very significant obstacles’ on his past experience of returning from Russia to Ukraine in 2016 and the discrimination that he then suffered.
21. In that context, the judge was unarguably right to consider whether such discrimination was capable of amounting to ‘very significant obstacles’, and he also conducted a proportionality assessment, concluding that there were no very compelling circumstances for which leave to remain should be given outside the Rules.
22. The appeal is therefore dismissed.
23. It remains open to the appellant to make further submissions to the respondent on the basis of the changed circumstances in Ukraine, relying on the unchallenged findings in the First-tier Tribunal decision that he has worked in Russia, that on return from that work he was discriminated against in his home area, and that he has trained for military service and remains liable to serve.

DECISION
24. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of no error on a point of law
I do not set aside the decision but order that it shall stand.

Signed Judith AJC Gleeson Date: 25 April 2022
Upper Tribunal Judge Gleeson