Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03326/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 January 2017
On 14 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

mr anton velykyi
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms P Yong, Counsel instructed by Davies, Blunden & Evans
For the Respondent: Mr N Bramble, Senior Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of the Ukraine, date of birth 14 July 1983, appealed against the Respondent's decision, dated 18 March 2016, to refuse an application for asylum under the Refugee Convention, alternatively seeking Humanitarian Protection or reliant upon Articles 2 and 3 ECHR. The position is that that decision came before First-tier Tribunal Judge J K Swaney who, on 24 November 2016, dismissed the appeal on protection grounds and under Article 8 ECHR. Permission to appeal that decision was given by First-tier Tribunal Judge Ford on 19 December 2016.

2. The core of the criticisms to a degree miss the point. It is clear, as the Appellant made plain, that he objected to being called up let alone as a reservist on the basis of his religious belief. Such opposition to military service is long established but similarly it has also been established that an objection to military service or conscription or being called up as a reserve from the reserve are not of themselves a basis for protection under the Refugee Convention. The judge correctly stated the law in that respect and was reminded by the Home Office representation that the general position was qualified; if the consequences of refusal would give rise to inhuman or degrading treatment, abuse and ill-treatment by the state.

3. The matter was raised by the Appellant in his asylum interview and in his statement. It is clear that the judge understood that issue and recited the parties' submissions upon it and ultimately concluded that there was no significant risk of Article 3 ill-treatment such as to give rise to adverse consequences from him being a draft defaulter or evader. Those conclusions were adequately and properly set out in the decision and the judge reached that view by reference to background evidence which, it was accepted before me, does not specifically relate to the ill-treatment of persons who refuse to undertake military service or are in the reserve but do not wish, having undergone previous military conscription and service to do any further. It seemed to me that the general criticisms that may arise in respect of prison conditions in the Ukraine and more particularly the conduct of the security forces, whilst properly being the matter of concern, do not on the face of the evidence and the case law tend to show the real likelihood of systemic inhuman life-threatening degrading treatment so as to engage Articles 2 and 3 of the ECHR. I did not hear the case but have the assistance of Ms Yong who tells me of matters that were raised. As she properly identifies the background evidence, while showing many deficiencies in the Ukrainian criminal system, does not ultimately show that real risk which must be established by an Appellant to that low standard of proof which is reflected in the cases of Ravichandran [1996] Imm AR 97, Sivakumaran [1998] ImmAR 47 and Karanakaran [2000] EWCA Civ. 11.

4. The next question that is raised and perhaps which has become to a degree irrelevant is the extent to which the Appellant was or was not likely to be in a list of reservists as an officer or as a person in the ranks. The Appellant's clear evidence was that he had not completed officer training. Therefore he was not, as yet, properly categorised as an officer. He therefore, if called up to serve, would not be categorised as an officer which the judge infers would not be put him in a combatant role. The judge sets out this matter and the evidence but then for really no adequate reasons of any sort, concluded that the Appellant would be called up as an officer [D36]. Yet again, in confusing circumstances at D41, the Judge seems to contradict herself over whether the Appellant was or was not an officer. The issue has fallen by the wayside because on the Appellant's view, whether he was an officer or a reservist, being called up offended his Christian beliefs. The unfortunate fact is that the case law, as I have already indicated, shows that his religious objection was not , on the evidence, a Convention reason and did not, absent of evidence directed at the consequences of evasion or refusal to complete military service or undertake reservist duties, give rise to Article 3 ECHR ill-treatment. The judge widely considered that issue in its generality. It follows that the issue of whether he is an officer or an ordinary reservist makes no difference to the basis of his claim of being at risk on return as opposed to eliding the point by reference to whether or not he would actually have to be a combatant on the basis of his status in the army reserve list.

5. In these circumstances I conclude that the judge in what was a thorough determination reaching conclusions as she was entitled to do made no error of law. Ms Yong emphasises that there was a variety of evidence provided to the judge in the Appellant's bundle concerning conditions in the Ukraine and unsurprisingly the Appellant's statement refers to his anxieties about the way he would be treated on return. Nevertheless it seemed to me even with the up-to-date human rights situation report on the Ukraine by the UNHCR that there was no material I was taken to which shows draft defaulters or evaders or persons who do not respond to the summons to undertake military service are subjected to ill-treatment of the kind that the Appellant fears: Albeit I suspect any imprisonment regime, if one is imposed, is in measure hard and possibly may be viewed as hard. There is sadly too much evidence on the general risk of abuse of those perceived as a danger to the Ukrainian state. For these reasons therefore I do not find that the judge made any error of law in failing to address material evidence relating to the risks in detention of persons into which category it has been found the Appellant would fall.

6. For these reasons therefore I find the Original Tribunal made no error of law and the Original Tribunal's decision stands.

7. There was no anonymity order made and none is now needed or appropriate.

8. The judge for the reasons given made no fee award and that decision of the Original Tribunal similarly stands.

DECISION
The appeal is dismissed

Signed Date 7 February 2017
Deputy Upper Tribunal Judge Davey