United Kingdom - VB and Another (draft evaders and prison conditions) Ukraine Country Guidance, 1 March 2017
| Country of Decision: | United Kingdom |
| Country of applicant: | Ukraine |
| Court name: | Upper Tribunal, Immigration and Asylum Chamber |
| Date of decision: | 01-03-2017 |
| Citation: | [2017] UKUT 79 (IAC) |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
It is not reasonably likely that a draft-evader would face criminal/administrative proceedings in Ukraine but there is a real risk that a person sentenced to imprisonment in Ukraine would be detained on arrival there and that detention conditions would breach Article 3 ECHR.
Facts:
VB and IS both entered the UK from Ukraine in an irregular manner and were convicted in their absence for failing to do military service. Both were refused asylum, had their appeals dismissed by the First-tier Tribunal and appealed to the Upper Tribunal.
Decision & reasoning:
- At the current time it is not reasonably likely that a draft-evader would face criminal or administrative proceedings in Ukraine although the Criminal Code of Ukraine does provide for a prison sentence for such an offence. It would be a matter for any Tribunal to consider, in the light of the developing evidence, whether there were aggravating matters which might lead to the 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.
- 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 his/her absence would probably be entitled to a retrial.
- There is a real risk that the conditions of detention and imprisonment in Ukraine would subject a person to a breach of Article 3 ECHR.
- There has been no significant or durable change in the conditions of detention since PS (prison conditions; military service) Ukraine Country Guidance [2006] UKAIT 00016. The Upper Tribunal relied upon a number of reports, the fact that Ukraine denied the United Nations Subcommittee on Prevention of Torture access to detention facilities in May 2016, and information put into the public domain by the Ukrainian Parliamentary Commissioner for Human Rights (the Ombudsman), Ms Valeriya Lutkovska, in September 2016. It noted that detention prior to sentence is mainly in a set of establishments known as SIZOs. In the SIZOs, the required Article 3 ECHR compliant standard of basic space (3 square metres per detainee in multi-occupancy accommodation) is regularly not met: the Ukrainian national standard is 2.5 square metres and even this is not being met. Further issues are: no windows, damp, dangerous electrical fittings, insufficient ventilation, lack of sanitation and access to drinking water, no night-lighting so lighting kept on continually, overcrowding, inadequate numbers of health care professionals, lack of meaningful out-of-cell activity for remand prisoners, and a high death rate. The combined evidence of a lack of space, poor material conditions and lack of meaningful out-of-cell activity poses a real risk of inhuman and degrading treatment. Furthermore, there is evidence that, in the SIZOs, the authorities use inmates (‘duty prisoners’) to ill-treat other inmates and the lack of sustained evidence of corrective action in relation to these allegations poses a real risk of ill-treatment.
Outcome:
Decisions of the First-tier Tribunal set aside on the basis of an error of law and remade, allowing both appeals on Article 3 ECHR grounds. Anonymity order made.
Subsequent proceedings:
The case has not been the subject of a further appeal by the Home Office. Although it remains extant country guidance on prison conditions in Ukraine, the Upper Tribunal has recently heard another case on draft evasion / punishment, which may potentially affect the country guidance. The tribunal has yet to decide on the case, as of September 2020.
Observations/comments:
This case summary was written by Alice Winstanley, an LLM student at Queen Mary University, London.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Jones v UK, Application No 30900/02, 9 September 2003 |
| Mursic v Croatia, Application No 7334/13, 20 October 2016 |
| ECtHR - Poltoratskiy v Ukraine, Application No 38812/97, 29 April 2003 |
| ECtHR - Truten v Ukraine, Application No 18041/08, 23 June 2016 |
| ECtHR - Yakovenko v Ukraine, Application No 15825/06, 25 October 2007 |
| ECtHR - Andrey Yakovenko v Ukraine, Application No 63727/11, 13 March 2014 |
| ECtHR - Yarovenko v Ukraine, Application No 24710/06, 6 October 2016 |
Other sources:
Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269)
Article 210 Administrative Code of Ukraine
Articles 69, 335, 336, 337 and 409 Criminal Code of Ukraine
Article 412 Criminal Procedure Code of Ukraine
Australian Refugee Tribunal Country Advice on Ukraine, 11 December 2009
Council of Europe Annual Penal Statistics Survey 2014, 23 December 2015
Council of Europe, European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT): report to the Ukrainian government on the visit to Ukraine carried out by the CPT from 9 to 21 October 2013, 29 April 2014
Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT): report to the Ukrainian government on the visit to Ukraine carried out by the CPT from 9 to 16 September 2014, 29 April 2015
Foreign and Commonwealth Office letter, 20 September 2016
Home Office Country Information and Guidance Ukraine: Military Service, September 2016
Home Office Country Information and Guidance Ukraine: Prison Conditions, January 2016
Professor William Bowring’s Expert’s Report
The Guardian, ‘Ukraine: Draft Dodgers face jail as Kiev struggles to find new fighters’, 10 February 2015
Ukrainian Helsinki Human Rights Union ‘Prisoner’s Rights’ (sic) report, 25 April 2016
UNHCR International Protection Considerations related to developments in Ukraine – Update II, January 2015
UNHCR International Protection Considerations related to developments in Ukraine – Update III, September 2015
UN Human Rights Commissioner’s Report on the human rights situation in Ukraine 16 May to 15 August 2016, 15 September 2016
US State Department Report- Human Rights Practices for 2015, April 2016