Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004806
First-tier Tribunal No: PA/53850/2024
LP/08626/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th October 2026

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

EM
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr M McGarvey, instructed by NLS Solicitors
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 18 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant, a national of Tajikistan, born on 23rd March 1997, appeals against the decision of the Secretary of State who had refused the appellant’s protection claim on 29th January 2024. The appellant had claimed he was at risk on return to Tajikistan owing to evasion of military service and that he was a Muslim.
2. On appeal against the previous FtT decision of Judge Jepson, promulgated in September 2025, a number of the findings were preserved but the conclusions in relation to the assessment of whether the appellant was at risk on return for evading military service were set aside owing to an incorrect use of the standard of proof. In particular the judge did not take into account the entirety of the expert report when assessing risk on return.
3. The Secretary of State conceded that there was an error of law as follows:
‘…it is accepted that the findings made by the FTTJ in relation to risk on return to the lower standard are unclear and inadequately reasoned. At [105-106] the FTTJ sets out competing arguments on whether a draft evader would be at risk on return in the context of having reached the age of 27 years, but provides no conclusive view with reasons as to the apparently conflicting findings.’
4. The Appellant had turned 27 years since he had been in the UK and therefore no longer liable for military service in Tajikistan. The issue was whether, however, there is a reasonable likelihood to the lower standard of proof that he may still face arrest and imprisonment.
5. Critical findings were made by the judge at [90]-[95] as follows:
90. There seems no dispute that if the Appellant has a brother, he is liable for military service. Equally, if one accepts the Appellant went to and finished university between 2016 and 2021 the unchallenged proposition is he was exempt during that period. He became eligible once again in the time which followed. Mr.McGarvey is right that logically any service required could not have been completed in the period between completing university in June 2021 and leaving the country in September 2022.
91. I make plain I do not believe the Appellant is wanted for failing to attend service. His account both on that topic and in general is flawed and contradictory. The material submitted carries some weight, not least of which via the lack of explicit challenge to its contents. Any benefit that affords the Appellant is however entirely outweighed by what I find to fundamental problems with the narrative. Though some elements have remained the same, substantial shifts have taken place between the two interviews and then in court.
92. Even allowing for the doubts set out at length above, there is just about enough to persuade me the Appellant attended university as he claims. The diploma plays a small part in that. More weight has been given to the fact university attendance was mentioned in the AIR. The issue is finely-balanced, not least of which through the incredible shift to blaming interpreters in court. However, when taken with the diploma I am though barely persuaded on the balance of probability a degree was taken and completed in the years described.
93. Although equally marginal, I am also satisfied to the required standard the Appellant has a brother. That comes through a combination of the birth certificate and mention of such a sibling in the AIR. It is not a part of the narrative which emerged post-refusal.
…
95. What remains is the period between the end of university and when the Appellant turned twenty-seven this year [2025]. During that time, the Appellant was liable for service. The expert notes without challenge failure to attend is an offence. It might be said that means logically on return the Appellant would be at risk of prosecution and therefore persecution.
6. The above paragraphs were preserved save for the underlined sentence (retained above for clarity but underlined to show it is not preserved) because the error of law decision stated
‘The judge at [91] made findings relating to whether the appellant is actively wanted and his conclusions rested on the shift in the narrative. We set aside the sentence ‘I make plain I do not believe the appellant is wanted for failing to attend service’ but retain the remainder of the paragraph. Even if, as the judge found, the appellant had not fulfilled his obligations as he had attended university it remained open to the judge for the reasons given, to make specific findings that effectively contributed to his finding that during his time in Tajikistan he was not actively sought by the authorities. ‘
7. The Upper Tribunal set aside the FtT findings from [96] onwards relating to an assessment of the risk on return save for the exceptions noted and certain discrete findings in relation to documentation (see below). Specifically, at [98] the judge found ‘I note in saying that there is no clear suggestion while the Appellant was in hiding anyone had come looking specifically for him. If one discounts the claimed letter received prior to his departure (which I have) there was no sign of a summons on the appellant’s account until August 2024’. These two sentences of [98] were preserved .
8. Also preserved was the sentence at [101] which states ‘the appellant was never summonsed nor received documents accusing him of failing to attend’.
9. The matter was retained in the Upper Tribunal for remaking.
Documentation
10. Before me was the documentation available at the FtT including the respondent’s bundle.
11. A further a supplementary bundle was filed by the appellant which included

1. Russian Residence Permit of the appellant’s brother.
2. Tajikistan Birth Certificate of the appellant’s sister
3. Amnesty International the State of the World’s Human Rights -Amnesty International Report 2025/26 Tajikistan 21st April 2026
4. Asia PlusMore than 100 men of draft age prosecuted in Tajikistan last year for refusing to serve in military.
12. The respondent submitted a skeleton argument referring to an Asia Plus article entitled ’27 young men sentenced in Tajikistan last year for avoiding military service’
Submissions
13. Mr McGarvey relied on his skeleton argument and advanced that the point to be considered was in effect the question of adverse interest in the appellant now in Tajikistan and further the assessment of risk should he return. He accepted the appellant has now passed the age of military service. The law of the Tajikistan Criminal Code Article 343 suggested a discretion as to prosecution, but the risk was still extant and the expert confirmed that the appellant may be subjected to imprisonment should he return for having failed to conduct military service. I was referred to [44] of the expert report. The article supplied by the respondent indicated the rate of imprisonment was 28% for such failure. Thus, the appellant had a one in four chance of imprisonment and suffering inhuman treatment. The appellant had not registered his absence and had been outside the country for a long period. There was a reasonable likelihood he would be arrested and, if convicted of draft evasion, he may be imprisoned for a period from two to five years. The appellant did not register for the draft even though he was not summonsed. He did not complete military service as required and there was no reason to be excluded. It was simply unknown what would happen if he did not pay the fine.
14. Ms Rushforth relied on her skeleton argument. A number of the preserved findings were relevant. Not everyone was prosecuted and there was no evidence of the number of convictions compared with evasions. No one had sought the appellant before his departure, and he was able to leave the country on a seasonal worker visa. Ms Rushforth referred to [27] of the expert report. The severity of punishment depended on the circumstances. There was no evidence of aggravated conduct, and it was that which led to the penalty of imprisonment rather than fine. There was a lack of evidence as to the number arrested. At [44] the expert was not talking about the risk of arrest and detention from draft evasion but from being detained at the airport. That was not the issue. I was invited to dismiss this appeal. The appellant had left the country at the age of 24 years in 2022 on a seasonal visa, and nothing was said by the expert on that.
Conclusions
15. The appellant claimed asylum protection on 14th February 2023. As such sections 30-39 of Nationality and Borders Act 2022 apply.
16. A paragraph which was not challenged by the Secretary of State in the FtT decision was this in relation to the Refugee Convention:
‘31. It is important to bear in mind the question here is whether at its highest the Appellant’s case engages the Convention. I am satisfied it does, on both fronts argued. If the account is believed, the Appellant would face on return either having to perform service and/or be punished for failing to do so. The element of religion, via cited Home Office policy as a source of risk within the military, is an innate characteristic the Appellant cannot change. Even if I am wrong about that, as a draft evader he would arguably fall within the category of imputed political opinion and thus considered distinct within society.’
17. The expert at [32] stated as follows:
‘32. The Tajik government is known for targeting individuals perceived as dissidents, particularly if their activities were conducted abroad. Tajiks who spend time abroad without justified reason for absence such as work or study, become a target for suspicion by Tajikistani security authorities. The fact that the political opposition left Tajikistan in the early 90s and since then has been active abroad is largely the basis for suspecting most citizens who reside in Western countries such as Europe and the UK. I have detailed the dynamics of political movements and parties before and after the civil war in Tajikistan in the background part of this report. Based on those political events and the historical trajectory of political opposition as well as other background information on religion and ethnic minorities in Tajikistan detailed in the background part of the report, there are two possible reasons why the Tajik government would fear or suspect those living abroad. Firstly, the political opposition which is active abroad is significant when evaluating Tajik nationals overseas. Secondly, religious extremism, which is active abroad, largely in neighbouring Afghanistan and some Arab countries, is increasingly feared particularly after the Taliban’s takeover of Afghanistan.
18. Thus, although the appellant did not claim political activity, (and I note above the FtT made a finding this could be inferred which was not challenged), he has been absent for some of a period of time which the Tajik authorities might, bearing in mind the expert evidence, well consider to be without reasonable excuse.
19. At the hearing Ms Rushforth conceded that the prison conditions breached the threshold of Article 3 ECHR.
20. The FtT Judge accepted that the appellant had attended university therefore not being required for the two-year requirement of military service during this period of university attendance. The FtT Judge also accepted that the appellant had a brother and thus the appellant would not be exempt from military service, and that there was a period during which the appellant would have been required for service and with which he did not engage.
21. In the FtT Judge’s preserved findings, it was confirmed that there was no challenge to the expert report dated 16th September 2024 of Dr Rano Turaeva-Hoehne of Ludwig Maximillian University of Munich, Expert on the post-Soviet region, including Tajikistan.
22. Even if he were not specifically pursued for military service whilst in Tajikistan, or summonsed, it is clear from the findings that the appellant has not undertaken military service when required to do so and, having left the country and not returning during his period of liability for such service may well be perceived as having avoided military service. I note the appellant left university in 2021 at the age of 24 years old. When the appellant left Tajikistan in September 2022 at the age of 25 years and he left on only a six month ‘seasonal visa’ expiring on 5th March 2023 and, apparently processed by a recruiting company in Turkey and not in Tajikistan, there would have been time, just, to return and sign up for military service when still 27. He did not return as would have been required.
23. Although now beyond the age of conscription, the appellant may still face legal consequences which can include the risk of imprisonment. The real risk is clear from the background material and the expert report. The authorities will know the appellant has been abroad (not least because he is likely to be encountered upon return) because as the expert stated at [33] of his report
‘Registration is often mandatory for extended stays abroad, with penalties for non-compliance, such as restricted access to consular services.’
Additionally, the expert described the ‘propiska’ an internal rule of registration at the place of residence that strictly controls the internal mobility of the population and thus an effective tool in the hands of security officers and thus self-evidently monitoring.
24. Further, as noted at [43] of the expert report
‘The Appellant is highly likely to be listed on the blacklists (Profuchyot) of the security services due to his draft evasion and leaving the country without the appropriate notice which legally requires all Tajik nationals abroad to register with the relevant Tajik consulates abroad and report their activities. It is highly likely that the Appellant will be taken from the airport for interrogation during which he will face abuse and probable detention.’
25. That not everyone who fails to undertake military service is prosecuted is not to the point. Although it was asserted the appellant was never summonsed nor specifically required to undertake military service, [101], it is clear that service was not undertaken because of the timeframe accepted by the FtT. This is against an increase in the size of the draft as identified in the documentation.
26. According to the Asia plus article, ‘Article 376 of Tajikistan's Criminal Code’, ‘covers evasion of military duties by self-harm or other means.’
27. The appellant left as a seasonal worker and entered the UK in 2022, with no indication that he would not return in order to undertake military service and accordingly, he could be perceived as having avoided service by ‘other means’.
28. As stated by the expert ‘Refusing to undertake compulsory military service in Tajikistan can result in severe repercussions.’ The appellant did not undertake military service and not all of the time he was liable to undertake such service was ‘exempt’ from military service. As the expert also indicated if an individual has ‘evaded conscription prior to turning 27, he may still face legal consequences, including the risk of imprisonment.’ It is open to the authorities in Tajikistan to conclude that the appellant has through his history ‘evaded’ military service. On return the appellant could legitimately be seen as having failed ‘to register for the draft’. The fact that he has been a seasonal worker in the UK means that he had not registered for the draft when he should have done.
29. That the appellant left Tajikistan on a seasonal visa is not necessarily an indication that he was not required to complete the draft. The appellant has turned 27 since he has been in the UK and as noted above, the visa was simply a seasonal visa such that he could return after a matter of months to register for the draft. There was no real challenge to the conclusion of the expert that ‘If convicted, these individuals could face penalties that may include fines, imprisonment, or both…’.
30. The expert at [26]-[27] stated this:
‘The Appellant in the light of his past activities and travels will be highly likely to face persecution as a draft evader. Refusing to undertake compulsory military service in Tajikistan can result in severe repercussions, including legal consequences such as fines, imprisonment, or harassment by authorities. The government views military service as a mandatory duty, and refusal to comply can lead to accusations of disloyalty or evasion of national obligations, potentially resulting in harsh penalties.
v. Whether a person is at risk of imprisonment for evasion once they return.
27. In Tajikistan, once a man turns 27, he is generally no longer eligible for military conscription, and the risk of being conscripted officially ends. However, if an individual has evaded conscription prior to turning 27, he may still face legal consequences, including the risk of imprisonment. Tajik law considers draft evasion a criminal offense, and individuals who avoided military service before reaching the age limit could be prosecuted even after they turn 27. The authorities may pursue charges against those who evaded conscription through fraudulent means, such as providing false documents, failing to register for the draft, or not appearing when summoned. If convicted, these individuals could face penalties that may include fines, imprisonment, or both. The severity of the punishment often depends on the circumstances of the evasion and whether the individual has any prior offenses.’
31. That Article 343(1) of the Tajikistan Criminal Code does not prescribe mandatory imprisonment for military service evasion is not to the point. The expert may be silent on the statistics of those who are prosecuted but he states clearly at [26] that refusing to undertake compulsory military service can result in ‘severe repercussions’. Thus, there is a reasonable risk that the appellant will face severe repercussions. Simply there is provision for prosecution as shown by the Asia press article confirming that 108 men were prosecuted. I accept that there is no indication of the percentage of those imprisoned, however, the ’27 young men’ article produced by the Secretary of State herself did show that in 2025 ‘Tajikistan Court handles 120 cases of military service involving 96 young men with 27 of them sentenced to prison’. That is nearly a quarter who received a severe penalty. The test is not that imprisonment is an ‘inevitable consequence’ but a reasonable likelihood’ and on these figures I consider that there is such a risk on return. Although the circumstances of ‘aggravated conduct is not addressed by the expert, leaving the country for seasonal work is self-evidently not complying with the compulsory requirement to which criminal penalties are attached, it is reasonable to conclude the authorities will consider the absence deliberate when the appellant is encountered on return. The expert concluded at [44]
‘I come to the conclusion that it is highly probable that the Appellant will be detained upon arrival facing violence and abuse from security officers who show zero tolerance for devoted Muslims entering Tajikistan from abroad after a prolonged period of unreported absence.’
32. The Secretary of State conceded that the prison conditions breached the threshold of Article 3 ECHR and as such I conclude that the appellant is at risk on return to Tajikistan and his appeal is allowed.

Notice of Decision
I allow the appeal on asylum and human rights grounds (Article 3)

H Rimington

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27th October 2026