Ukraine: New Country Guidance

Ukraine: New Country Guidance

Following a hiatus of 11 years, the Upper Tribunal has published Country Guidance in respect of asylum claims based upon draft evasion and prison conditions in Ukraine, in the shiny new case of VB and Another (draft evaders and prison conditions) Ukraine CG ²⁰¹⁷ UKUT 00079.

Given the massive upheaval in the country, it is a little surprising that it has taken so long for it to issue fresh CG but on the whole it is fair to say that it is not unhelpful.

The headnote is as follows:

1. At the current time it is not reasonably likely that a draft-evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act, although if a draft-evader did face prosecution proceedings the Criminal Code of Ukraine does provide, in Articles 335, 336 and 409, for a prison sentence for such an offence. It would be a matter for any Tribunal to consider, in the light of developing evidence, whether there were aggravating matters which might lead to imposition of an immediate custodial sentence, rather than a suspended sentence or the matter proceeding as an administrative offence and a fine being sought by a prosecutor.
2. There is a real risk of anyone being returned to Ukraine as a convicted criminal sentenced to a term of imprisonment in that country being detained on arrival, although anyone convicted in absentia would probably be entitled thereafter to a retrial in accordance with Article 412 of the Criminal Procedure Code of Ukraine.
3. 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.

In a comprehensive judgment, the UT takes issue with the conclusions of the Home Office’s CIG, wherein the Secretary of State concluded that whilst a US State Department Report concluded that “prison and detention centre conditions remained poor, did not meet international standards, and at times posed a serious threat to life and health of prisoners. Poor sanitation, abuse, and lack of adequate light, food, and medical care were persistent problems” this evidence did not apparently demonstrate conditions that were sufficiently “systematically inhumane” so as to engage Article 3 ECHR.

Unsurprisingly, the UT concluded that the conditions in Ukrainian prisons do pose a real risk of breaches of Article 3 ECHR.

On the issue of the risk of a prison sentence for draft evasion, the CG is less helpful, concluding as it does that the evidence does not currently support the proposition that, in general, prison is a realistic prospect for draft evaders. The UT does acknowledge that the situation is something of a moving feast, however, and leaves open the door to “developing evidence” that might justify a departure from the general rule in particular cases.

All in all, the CG is a mixed bag but is to be cautiously welcomed for its rebuttal of the position of the CIG on the issue of prison conditions.

Dafydd Paxton 12th April 2017