Successful appeal against refusal of asylum claim in the UK

Immigration lawyer, Oksana Demyanchuk (OISC Level 3) successfully handled the appeal case of the client, whose asylum claim was refused. The Appellant, a Ukrainian national, was subject to mobilisation and was summoned to join military service in Ukraine to participate in the Russia-Ukraine war while he was in the United Kingdom.

The Appellant arrived to the UK in 2014. After being subjected to removal to Ukraine, the Appellant claimed asylum due to his fears of returning to Ukraine and facing potential imprisonment for evasion of joining the military service. He also feared persecution for his previous political activity, which is currently viewed by the Ukrainian authorities as “associated with the former pro-Russian regime”.

The asylum claim was refused by the Home Office on the following grounds:

  1. Firstly, the Home Office did not accept that the Appellant was of interest to the Ukrainian authorities due to his political activities, thus placing the Appellant outside the jurisdiction of the Refugee Convention 1951.
  2. Secondly, the Home Office was not convinced that the Appellant’s evasion from military was persecutory.
  3. Thirdly, the Home Office also argued that the Appellant was aware of his illegal status in the UK, and that he delayed claiming asylum for 2 years whilst being in the UK and this fact damaged his creditability.
  4. Finally, the Home Office dismissed the argument that the Appellant’s religion could not result in him being persecuted by the Ukrainian authorities.

Basis for Asylum Claim

Whilst relying on the objective evidence in regard to the Russian – Ukrainian military conflict and the aggravating attitude of the Ukrainian regime to the ex-members of a political party with a pro-Russian ideology, the Judge was convinced that the Appellant was subjected to an immediate custodial sentence in Ukraine.

In addition, with reference to the VB Case, particularly that there was a real risk that the conditions of detention and imprisonment would subject the Appellant to be detained and imprisoned upon returning to Ukraine, the Judge allowed the appeal under the Article 3 of the European Convention on Human Rights (ECHR).

In regard to the Home Office’s argument that the Appellant delayed claiming asylum for 2 years whilst being in the UK, the Judge accepted that the delay was caused by the Appellant’s sincere belief and hope that the situation in Ukraine would improve and he would not be searched for by the military prosecutors or police.

The fact that the client completed his military service in Ukraine in 1997-98 and received his military call-up papers in 2014 proved his military duty and potential persecution for the draft evasion.

Finally, the Judge also acknowledged that the Appellant would face difficulties in Ukraine due to his participation and membership in the Russian Orthodox Church, which was different to Kyiv Patriarchate and was not appreciated in Ukraine during the war time.

In the circumstances, as the case law holds that prison conditions are such to breach Article 3 ECHR and in the light of the fact that I accept [the Appellant’s] claim that the prosecution could be motivated by politics in view of the background evidence … I find that he has demonstrated that he has a well-founded fear of prosecution for a Convention reason.

On the above stated basis, the appeal was allowed under the Articles 3 and 8 of ECHR.  

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