Permission to appeal granted: PK precedent

Permission to appeal has been granted by the Court of Appeal against the Country Guidance decision of PK (Draft evader; punishment; minimum severity) Ukraine [2018] UKUT 241 (IAC).
In PK (Ukraine), the Upper Tribunal held that where an Appellant would be punished for refusing to undertake military service in which they may be forced to engage in acts contrary to basic rules of human conduct, the punishment must reach a minimum threshold of severity in order to result in a successful asylum claim. In this case, it was found that the Appellant would most likely face a fine by way of punishment. It was held that a fine would not meet the minimum threshold of severity.
The judgment in PK (Ukraine) is contrary to several authorities, most notably the House of Lords’ judgment in Sepet & Anor, R (on the application of) v Secretary of State for the Home Department [2003], in which it was held that where a person would be punished for refusing to engage in acts contrary to international humanitarian law, this will be sufficient for a successful asylum claim. No minimum threshold of severity was specified.
The Home Office’s own guidance reflects the ruling in Sepet. The guidance states that a requirement to undergo compulsory military service – or punishment for failing to complete this duty – may constitute persecution where military service would involve acts, with which the person may be associated, which are contrary to the basic rules of human conduct. 
The Court of Appeal has granted permission to appeal against the decision in PK(Ukraine) on the basis that the following issues raise important points of principle or practice:
(i) whether punishment for draft evasion must reach a minimum severity.
(ii) the relevance of the Home Office’s guidance, which reflects the ruling in Sepet and does not go any further to impose a minimum severity threshold.
The Court of Appeal found that it is arguable that the Upper Tribunal failed to consider these issues adequately.
Ruslan Kosarenko
Senior Partner

UK Immigration & Legal Assistance

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