The Home Office has agreed to withdraw its decision to refuse asylum to a Ukrainian man who evaded the military draft, meaning that an appeal from the country guidance decision of PK and OS (basic rules of human conduct) Ukraine CG [2020] UKUT 314 will no longer be heard by the Court of Appeal.
OS, a Ukrainian national, claimed asylum in March 2015 having received notice 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 in February 2018 and he appealed. The First-tier Tribunal 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 heard his appeal along with that of another draft evader, PK, in June 2020. In its judgment in PK and OS, the tribunal 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. But it accepted that for an appellant who could show a connection with such acts, any penalty for refusal to serve would amount to persecution.
OS sought permission to appeal to the Court of Appeal. Popplewell LJ and Carr LJ granted permission to appeal on one ground which had two limbs. First, that the Upper Tribunal arguably misapplied the relevant standard of proof, and Case C-472/13 Shepherd v Bundesrepublik Deutschland, in analysing the degree to which OS could be connected to acts contrary to international humanitarian law. Secondly, the tribunal arguably erred in failing to consider the proposition 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.
