Julian Norman, led by Anthony Metzer QC from Goldsmith Chambers, successful in Court of Appeal case of PK (Ukraine)

28 October 2019

In PK (Ukraine) v The Secretary of State for the Home Department [2019] EWCA Civ 1756, the Court of Appeal allowed the appeal against the Upper Tribunal decision in PK (Draft evader; punishment; minimum severity) Ukraine [2018] UKUT 241 (IAC).

The Appellant is a draft evader from Ukraine, whose objections to being mobilised include that the Ukrainian Armed Forces are now participating in breaches of international humanitarian law. The Upper Tribunal had determined that punishment for refusing to serve in such circumstances must itself reach a threshold of minimum severity, while the Appellant argued that requirement to serve in a military committing abuses, compelled by criminal sanction, was itself persecutory.

Sir Rupert Jackson, with whom Patten LJ and Asplin LJ agreed, said that "The question whether a draft evader facing a non-custodial punishment for failing to serve in an army which regularly commits acts contrary to IHL is entitled to refugee status, is one of overarching importance." The Upper Tribunal had not considered it because they had regarded it as academic. The appeal was allowed and the case remitted to the Upper Tribunal.