Upper Tribunal (Immigration and asylum chamber), 2021-06-03, PA/09914/2017
| Jurisdiction | UK Non-devolved |
| Date | 03 June 2021 |
| Published date | 18 June 2021 |
| Hearing Date | 20 May 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/09914/2017 |
Appeal Number: PA/09914/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09914/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 20 May 2021 |
On 03 June 2021 |
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Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
SM (UKraine)
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms N. Nnamani, Counsel
For the Respondent: Mr T. Lindsay, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 against a decision of the Secretary of State dated 27 September 2017 to refuse the appellant’s asylum and humanitarian protection claim made on 23 March 2017. I refer to the respondent’s decision as being contained in the “reasons for refusal letter”, or ‘RFRL’.
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The appellant is a citizen of Ukraine born in 1982. He claims to have ignored two summonses for compulsory military service in Ukraine, issued in February and March 2016, and to have been prosecuted and sentenced on 25 November 2016 in his absence to four years’ imprisonment for draft evasion. He claims that he will be identified as a convicted criminal at the border upon his return and subsequently will be imprisoned in conditions that would breach Article 3 of the European Convention on Human Rights (“the ECHR”). Although the appellant originally claimed asylum on the basis that he would face being persecuted for failing to perform military service in Ukraine, he no longer maintains that limb of his claim, as confirmed by Ms Nnamani at the outset of the hearing before me.
Procedural and factual background
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This is the appellant’s third substantive appeal against the Secretary of State’s refusal decision. The appellant’s appeal was originally dismissed by First-tier Tribunal Judge Greasley in a decision and reasons promulgated on 8 August 2018. That decision was set aside by a different constitution of this tribunal on 8 November 2018 and remitted to the First-tier Tribunal. The matter was reheard by First-tier Tribunal Judge Oliver on 25 October 2019, who dismissed the appeal in a decision promulgated on 25 November 2019. The appellant again appealed to the Upper Tribunal. In a decision and reasons promulgated on 5 March 2020, I found the decision of Judge Oliver to have involved the making of an error of law and set it aside with no findings of fact preserved. My error of law decision may be found in the Annex to this judgment.
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I directed that the matter be reheard in this tribunal, and it was in those circumstances that it resumed before me, on a face-to-face basis at Field House, on 20 May 2021, following a delay caused by the pandemic.
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The appellant arrived in the United Kingdom on a visitor’s visa in September 2006. He overstayed and subsequently came to the attention of the Secretary of State, who placed him on reporting conditions which persisted for a considerable period. On 30 November 2016, advised by the same solicitors through which he was later to make this asylum claim, the appellant applied to the Secretary of State for leave to remain on grounds of his human rights. That application was refused and certified as “clearly unfounded” on 13 February 2017. On 23 March 2017, the appellant claimed asylum. A screening interview took place on 29 March 2017, and a substantive interview was conducted on 16 August 2017. The claim was refused on 27 September 2017 and it is that refusal decision the appellant now appeals against in these proceedings.
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The appellant claims that a postman delivered two military call-up notices to his mother’s home in Ukraine on 25 February 2016 and 31 March 2016, requiring him to attend appointments in order to be enlisted for compulsory military service. The appellant was in this country at the time, without a passport (which he claims to have lost at an early point during his residence here), and was unable to return to Ukraine to perform his service. In any event, he did not want to; he knew of people who had returned from the frontline in the conflict with the Russia-backed groups with mental illnesses from the trauma they had experienced. He was afraid for his life in his likely role as a sapper.
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As a result of failing to report to the military commissariat, the appellant was prosecuted and tried in absentia, he claims. He was sentenced to four years’ imprisonment and has not been able to appeal due to being in this country following advice his mother received from a local solicitor that he had no case. The basis of the appellant’s Article 3 claim is that he will be imprisoned upon his return to Ukraine and detained in conditions which would not comply with the requirements of Article 3 of the ECHR. He no longer maintains that he would be entitled to refugee status on account of being required to perform compulsory military service.
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The respondent’s case, as set out in the RFRL, and as developed by Mr Lindsay before me, is that the documents relied upon by the appellant to demonstrate that he has been called for military service and tried in his absence are not reliable. Even if they were genuine, fraudulently-obtained genuine documents are prevalent in Ukraine. The background materials and relevant country guidance suggest that, absent some special factor, prosecution for draft evasion is highly unlikely, still less is a sentence of four years’ imprisonment reasonably likely to have been imposed. I am invited to reject the appellant’s case that he received call-up notices in his absence and find that he was not tried in absentia.
Legal framework
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Article 3 of the European Convention on Human Rights provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
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In VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 00079 (IAC), this tribunal held, at paragraph 3 of the Headnote:
“There is a real risk that the conditions of detention and imprisonment in Ukraine would subject a person returned to be detained or imprisoned to a breach of Article 3 ECHR.”
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The appellant bears the burden of proof to establish his case to the lower standard. He must demonstrate that he faces a real risk of substantial harm.
Documentary evidence
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In the course of the two substantive hearings before the First-tier Tribunal, these proceedings have generated a number of materials, many of which overlap. The appellant relied on the bundle prepared for the First-tier Tribunal, a supplementary bundle, plus three expert reports from Professor Mark Galeotti. At the hearing, the appellant provided original copies of the summonses he claims to have received in Ukraine, an original version of the Ukrainian court judgment, plus the envelope they were said to have been provided in by his mother from Ukraine.
The hearing
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The appellant participated in the hearing in Ukrainian through an interpreter. At the outset, I clarified that the appellant and interpreter could understand one another.
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The appellant gave evidence and adopted his statement dated 26 October 2017, prepared for the first appeal before the First-tier Tribunal. That statement is in identical terms to the one he signed for the second First-tier Tribunal appeal. He was cross-examined. I do not propose to set out the entirety of the appellant’s evidence in this decision; I will do so to the extent necessary to reach and give reasons for my discussion.
Discussion
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I reached the following findings having considered the entirety of the evidence in the round, to the lower standard.
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By way of a preliminary matter, as Ms Nnamani realistically accepted, the appellant’s claim does not engage the 1951 Geneva Convention. Ms Nnamani explained that, in light of the findings of PK and OS (basic rules of human conduct) Ukraine CG [2020] UKUT 314 (IAC), the appellant no longer considers his asylum claim to engage the 1951 Convention and does not pursue it. This appeal is therefore dismissed on asylum grounds. I turn to Article 3.
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The appellant’s Article 3 case turns primarily on whether I accept the two central planks of the his case: first, whether he received call-up papers, and secondly, whether I accept that he has been sentenced to a term of four years’ imprisonment in his absence. If it is reasonably likely that the appellant has been sentenced to four years’ imprisonment, pursuant to VB it is reasonably likely that he would be subject to the non-Article 3 compliant detention conditions in Ukraine, although he may be entitled to a retrial.
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It is necessary to consider the background materials and country...
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