Does an appointment by the Ministry of Foreign Affairs to a position at an embassy grant the right to deferment from mobilization: the position of the appellate court

The Fifth Administrative Court of Appeal considered an appeal against the decision of the Odesa District Administrative Court, which denied the claim to cancel the orders of the territorial recruitment center and the military unit regarding conscription for military service during mobilization, removal from military registration, and enrollment in the personnel lists of the military unit. The appellate court upheld the decision of the first instance court, concluding that at the time the disputed orders were issued, the plaintiff had not acquired the right to deferment from conscription.

Essence of the case

The plaintiff challenged the order of the territorial recruitment center dated August 27, 2025, regarding conscription for military service during mobilization, the order on his removal from military registration, as well as the order of the military unit commander on arrival at the military unit, enrollment in the personnel lists, registration for all types of support, and appointment to the position of cadet of the training unit.

The claim was motivated by the fact that the plaintiff was appointed by the order of the Ministry of Foreign Affairs of Ukraine to the position of head of household with the duties of a driver of motor vehicles at the Embassy of Ukraine in the Arab Republic of Egypt. In his opinion, due to being sent on a long-term official business trip, he was subject to reservation and had the right to deferment from conscription in accordance with the Law of Ukraine "On Mobilization Preparation and Mobilization."

To support his position, the plaintiff noted that the Embassy of Ukraine in the Arab Republic of Egypt had already contacted the territorial recruitment center in July 2025 with a letter informing about his upcoming assignment to the diplomatic institution and the existence of grounds for deferment. In addition, copies of the MFA appointment order, service passport, travel documents, and other documents that, according to the plaintiff, confirmed his right to reservation were submitted to the territorial recruitment center.

The Odesa District Administrative Court denied the claim. Disagreeing with this decision, the plaintiff filed an appeal, arguing that at the time of the disputed legal relations, the territorial recruitment center had all the necessary information and documents to verify the grounds for granting him deferment but did not conduct a proper check and unjustifiably decided on mobilization.

During the appellate review, the court requested additional documents and explanations from the Ministry of Foreign Affairs of Ukraine regarding the plaintiff's appointment, the reservation procedure, and correspondence between the diplomatic institution and the territorial recruitment center.

The Ministry of Foreign Affairs reported that although the plaintiff was appointed to the relevant position with the start date of duties on September 8, 2025, he did not arrive to familiarize himself with the appointment order, did not receive a service passport, and in fact did not begin performing official duties at the foreign diplomatic institution. Therefore, the Ministry did not initiate the reservation procedure according to the Procedure approved by the Cabinet of Ministers of Ukraine Resolution No. 76. Subsequently, the appointment order was canceled.

Position and conclusions of the court

The appellate court noted that according to Article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization," only conscripts who are reserved in the manner prescribed by law and are on special military registration are exempt from conscription during mobilization.

The court emphasized that according to Article 25 of this Law and the reservation Procedure approved by the Cabinet of Ministers of Ukraine Resolution No. 76, the right to deferment is derivative of the completed reservation procedure. It is the employer who must carry out the actions to reserve the conscripted person, after which the person acquires the right to deferment from conscription.

The panel of judges agreed with the first instance court's conclusion that at the time the disputed orders were issued, the plaintiff had not yet begun performing official duties at the Embassy of Ukraine in the Arab Republic of Egypt, and the Ministry of Foreign Affairs had not carried out the reservation procedure in accordance with Procedure No. 76.

The court established that the Ministry of Foreign Affairs order provided for the start of official duties only from September 8, 2025. It was only from this date that the Ministry could begin the reservation procedure. Until that moment, the plaintiff only had a planned appointment to the position but was not actually working at the foreign diplomatic institution.

The appellate court stressed that a future appointment to a position or the possibility of being reserved in the future does not create the right to deferment from mobilization. Such a right arises only after the employer completes the reservation procedure in accordance with the requirements of Procedure No. 76.

The panel of judges also took into account that the Ministry of Foreign Affairs appointment order for the plaintiff was subsequently canceled because he did not arrive to familiarize himself with the order and did not begin performing official duties. This additionally confirms that at the time of the court appeal, the appointment was not actually realized, and the Ministry had no grounds to carry out the reservation.

Under these circumstances, in case No. 420/39726/25, the appellate court concluded that at the time the territorial recruitment center and the military unit issued the disputed orders, the plaintiff had not acquired the right to deferment from conscription during mobilization, and therefore there are no grounds to recognize these orders as unlawful.

The appeal was dismissed, and the decision of the Odesa District Administrative Court was left unchanged.

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