AS TO THE ADMISSIBILITY OF

                      Application No. 20991/92

                      by M.S.

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

10 December 1992, the following members being present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 F. ERMACORA

                 G. SPERDUTI

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G. H. THUNE

           Sir   Basil HALL

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 Mr. H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 28 July 1992 by M.S.

against the United Kingdom and registered on 26 November 1992 under file

No. 20991/92;

      Having regard to the report provided for in Rule 47 of the Rules of

Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is an Indian national, born in 1950 and resident, for

the time being, in Birmingham.  He is represented before the Commission

by Messrs. Koutsoudi Sekhon & Company, Solicitors, London.

      The facts of the present case, as submitted by the applicant and

which may be deduced from documents lodged with the application, may be

summarised as follows:

      The applicant went to the United Kingdom for the first time on 9

June 1981.  He is a Sikh.  He went back to India on 25 April 1982 within

his then permitted stay in England.  However, he returned again to the

United Kingdom on 27 August 1984 and was granted leave for six months.

That leave was later extended until 27 August 1985.  On 16 August 1985,

within the time in which he was permitted to remain, he applied to the

Home Office for permission to remain as a preacher.  At that time he had

been offered employment by the Sikh Temple at Hitchin, Surrey, he being,

and having since aged 20 been, a preacher.  However, the Temple withdrew

the offer and eventually that application was dismissed in February 1987.

Since then he has remained in the United Kingdom without permission.

      On 6 August 1987 the Home Office sent a letter to the applicant's

solicitors inviting them to submit factors to militate against

deportation, which would normally result from the dismissal of an

application for leave to remain.  The solicitor replied that the

applicant wished to remain as a priest at the Sikh Temple in Birmingham.

An attempt to interview the applicant, however, proved to be unsuccessful

because he could not be found and on 29 April 1988 notice of intention

to deport was sent to the applicant's solicitors.  An appeal against that

decision was heard and dismissed by an Adjudicator on 7 February 1989.

Leave to appeal to the Immigration Appeal Tribunal was refused on 25 May

1989.  It is not suggested that there was anything wrong in the

proceedings to that date.  In accordance with the refusal of leave to

appeal, on 3 August 1989 a deportation order was made.  That was

subsequently suspended until a short time before 28 November 1990, on

which date the applicant for the first time made an application for

asylum which was refused by the Home Secretary on 6 February 1991 (the

refusal being confirmed on 28 March 1991) in the following terms:

      "You have applied for asylum in the United Kingdom on the grounds

      that you have a well-founded fear of persecution in India for

      reasons of race, religion, nationality, membership of a particular

      social group or political opinion.

      India has in recent years experienced considerable disorder which

      the authorities have had to take measures to control.  As a result

      of this disorder individuals of all groups have suffered.  However,

      the Secretary of State, having considered all the available

      evidence, does not consider Sikhs in India are a persecuted group

      who have a claim to refugee status under the 1951 United Nations

      Convention Relating to the Status of Refugees simply by virtue of

      their religion or national origins.

      Nevertheless the Secretary of State does consider individual

      applications for asylum to see whether they fall within the terms

      of the 1951 United Nations Convention.  This depends on the

      circumstances in the individual case.

      In support of your application you said at interview with an

      immigration officer on 28 November 1990 that you did not wish to

      return to India because you feared that your life would be at risk

      there and that your family had been harassed by local police about

      your whereabouts.  You said that you had been a member of the Sikh

      Youth Federation since 1983 and that you had been a preacher on

      behalf of the organisation.  You also said that a number of your

      associates in the SYF had been murdered.  Furthermore, you said that

      in 1979 you had been arrested after attending a demonstration,

      detained and released the same day.

      However, the Secretary of State has also taken into account that the

      SYF is not a proscribed organisation in India and that by your own

      account your involvement was at a low level.  You claim that in 1979

      you were arrested and detained.  However it is noted that this

      incident occurred before you joined the SYF and was a result of your

      attendance at a demonstration against the authorities for increasing

      bus fares and you were released on the same day.  It is also noted

      that you successfully gained leave to enter as a visitor in August

      1984 and despite your current claims that you left India to save

      your life, you did not claim a fear of return to India until removal

      directions for your deportation had been set in November 1990.

      Having taken account of all the matters you have put forward in

      support of your application and of the other matters set out in a

      letter, the Secretary of State is not satisfied that you have a

      well-founded fear of persecution in India within the terms of the

      United Nations Convention Relating to the Status of Refugees and is

      therefore minded to refuse your application."

      The applicant applied for judicial review which was refused on 2

October 1991 on the grounds that there was no legal flaw in the Secretary

of State's decision, the decision being "plainly one which was the only

decision the Secretary of State could have made."  A renewed application

to the Court of Appeal for judicial review was  refused on 10 June 1992.

COMPLAINTS

      The applicant alleges that his imminent deportation to India would

be in breach of Article 3 of the Convention.  He makes the following

statement:

      "The applicant became involved in active politics against his

      Government, since he became a preacher at the age of 20, when he

      discovered ... the suppression of Sikhs in India.  He had preached

      the Sikh Religion in Talwandi, Bhutan District, Jallandar, Punjab

      and Delhi.

      During the summer 1978, a mass rally was held in the grounds of the

      Golden Temple in Amritsar, India, to celebrate an anniversary of the

      birth of Sikhism.  Sikh leaders made speeches and protests were made

      against the suppression upon the Sikhs by the Government.  The

      Indian Government suppressed the said rally by shooting at unarmed

      protesters.  Many Sikhs were killed including several leaders.  The

      applicant escaped death.  After seeing the unlawful killings of the

      Sikh people the applicant decided to fight for the liberation of the

      Sikhs.

      In about November 1979 a major demonstration was held in Punjab by

      the people against the unreasonable increase in bus fares in Punjab

      and also against the ill-treatment of the Sikhs by the Government.

      The Indian Government suppressed the said demonstration by shooting

      upon the demonstrators.  Many were killed; several were arrested and

      tortured.  The applicant was also arrested at the demonstration and

      was released on the same day.

      The applicant has known the Sikh Chief Sant Jarnail Singh

      Bhinderwala who resided at the Golden Temple in Amritsar, India,

      since 1977 and had delivered messages and news from the Sikh

      community of the United Kingdom on the applicant's return to India

      in 1981.  During his first visit to the United Kingdom the applicant

      also collected funds for the Sikh cause and made contact with the

      Sikh activists of the United Kingdom.

      The Sikh Chief Sant Jarnail Singh Bhinderwala was first arrested for

      murder, which was falsely framed against him.  He was later released

      as many protests were made by the people.  When the Indian

      Government troops stormed the Golden Temple of Amritsar in June 1984

      Chief Bhinderwala and many other Sikhs were killed.  Three close

      colleagues of the applicant were also killed and the applicant had

      to go into hiding to escape arrest, as many arrests followed after

      the storming of the sacred Golden Temple of the Sikhs.

      After his arrival in the United Kingdom the applicant has

      participated in many activities against the Indian Government.  He

      had attended political gatherings and meetings.  The applicant

      attended the Sikh Convention held in Wolverhampton from 27 September

      1990 until 3 October 1990.  His picture had appeared in the weekly

      newspaper called Awaza Quam which is a Punjab Weekly widely read in

      the United Kingdom and also in India, which was issued on 4 October

      1990.  That Convention was the 6th Convention of International Sikh

      Youths for the building of Independent Khalistan.

      The applicant also attended the Amnesty International meeting held

      at Exeter university on 11 November 1992 and participated in singing

      songs in praise of those fighting for human rights and for seeking

      independence for the Sikhs.

      As the applicant has participated in many Sikh meetings and

      gatherings and because publication of his pictures and activities

      were recorded in newspapers and letters, the Indian Government has

      full knowledge of his activities against them.  The High Court's

      refusal of the applicant's application for leave to apply for

      judicial review was also reported in The Birmingham Post dated 4

      October 1991.  The Indian Government now has full knowledge about

      the application for asylum in the United Kingdom.

      If the applicant were to return to India under the present

      circumstances, he would be arrested, tortured, thrown into prison

      and his life and liberty will be in grave danger.  He will be

      severely persecuted for his past and present political activities

      against the Government of India."

      The applicant also alleges that the refusal of his application for

judicial review constituted violations of Articles 6 and 13 of the

Convention.

THE LAW

1.    The applicant has complained that the refusal to grant him asylum

in the United Kingdom and the decision to send him back to India, where

he claims to face a real risk of persecution and torture, constitute a

breach of Article 3 (Art. 3) of the Convention, which provides as

follows:

      "No one shall be subjected to torture or to inhuman or

      degrading treatment or punishment."

      The Commission recalls the constant case-law of the Convention

organs "that expulsion by a Contracting State of an asylum seeker may

give rise to an issue under Article 3 (Art. 3), and hence engage the

responsibility of that State under the Convention, where substantial

grounds have been shown for believing that the person concerned faced a

real risk of being subjected to torture or to inhuman or degrading

treatment or punishment in the country to which he was returned" (Eur.

Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A

no. 215, p. 34, para. 103).

      The Commission's assessment of the risk of ill-treatment to which

the applicant may be exposed must be made in the light of all the

material placed before it.  This assessment must be a rigorous one in

view of the absolute character of Article 3 (Art. 3) of the Convention

(ibid., p. 36, paras. 107-108).

      The Commission notes that the British asylum authorities have

considered the applicant's claims carefully, but have concluded that they

are without substance.  The Commission observes that the applicant spent

several years in the United Kingdom (1984 to 1990) without applying for

asylum, only doing so when actually threatened with deportation for

overstaying.  On the basis of the material submitted by the applicant,

the Commission has no reason to doubt the view of the Secretary of State

that the applicant is not a prominent Sikh activist

or militant who is wanted by the India Government or would run a real

risk of serious ill-treatment or persecution if he were returned to

India.

      The Commission therefore concludes that this aspect of the

applicant's complaint is manifestly ill-founded, within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2.    The applicant has next complained that the refusal of his

applications for judicial review of the Secretary of State's decision

constituted a breach of his right to a fair hearing before an impartial

tribunal in the determination of civil rights and obligations or a

criminal charge.

      However questions of political asylum give rise neither to a

determination of civil rights and obligations nor a criminal charge (cf.

mutatis mutandis No. 8118/77, Dec. 19.3.81, D.R. 25 p. 105 and No.

12364/86, Dec. 17.10.86, D.R. 50 p. 280).

      It follows that this aspect of the case is incompatible ratione

materiae with the provisions of the Convention, pursuant to Article 27

para. 2 (Art. 27-2) of the Convention.

3.    Finally, the applicant has complained that he had no effective

domestic remedy for his Articles 3 and 6 (Art. 3, 6) complaints, contrary

to Article 13 (Art. 13) of the Convention, which reads as follows:

      "Everyone whose rights and freedoms as set forth in this Convention

      are violated shall have an effective remedy before a

      nationalauthority notwithstanding that the

           violation has beencommitted

                       by persons acting in an

                      official capacity."

      However, according to the constant case-law of the Convention

organs, "Article 13 (Art. 13) cannot reasonably be interpreted so as to

require a remedy in domestic law in respect of any supposed grievance

under the Convention that an individual may have, no matter how

unmeritorious his complaint may be: the grievance must be an arguable one

in terms of the Convention" (Eur. Court H.R., Boyle and Rice judgment of

27 April 1988, Series A no. 131, p. 23, para. 52).

      The Commission has found the applicant's substantive complaints

under Articles 3 and 6 (Art. 3, 6) of the Convention to be manifestly

ill-founded and incompatible ratione materiae, respectively.  In the

light of the reasons for these decisions, it also finds that the

applicant has no arguable claims under Articles 3 and 6 (Art. 3, 6)

warranting an effective domestic remedy pursuant to Article 13 (Art. 13)

of the Convention.  It follows that this aspect of the case is also

manifestly ill-founded, within the meaning of Article 27 para. 2 (Art.

27-2) of the Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission            President of the Commission

      (H.C. KRÜGER)                         (C.A. NØRGAARD)