AS TO THE ADMISSIBILITY OF

                      Application No. 12268/86

                      by M.

                      against the United Kingdom

        The European Commission of Human Rights sitting in private

on 7 September 1988, the following members being present:

Present:

             MM.  C. A. NØRGAARD, President

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J. C. SOYER

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             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 11 July 1986

by M. against the United Kingdom and registered on 16 July 1986 under

file No. 12268/86;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having regard to the parties' written and oral submissions;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant, Mr.  M. is an Iranian national born in 1960.

He is represented in the proceedings before the Commission by David

Gray & Co., Solicitors, Newcastle-upon-Tyne. The application arises

out of a decision by the Secretary of State to deport the applicant to

Iran.  The facts of the case, which are not in dispute between the

parties unless otherwise indicated, may be summarised as follows:

        The applicant was admitted to the United Kingdom as a visitor

and subsequently a student in 1977.  Following the Iranian revolution

in 1979 he became a supporter of the Peoples Mojahedin and claims that

because of this the Iranian authorities prevented funds being sent to

him in England to continue his studies.  The Mojahedin supported the

overthrow of the Shah but broke with the Khomeini régime in 1981 and

has since urged the overthrow of the Iranian Government.

        Subsequently an extension of leave to remain in the United

Kingdom was refused.  An appeal to the Adjudicator against this

refusal was also refused as was an application for leave to appeal to

the Immigration Appeal Tribunal on 14 November 1980.  As from this

date the applicant became an overstayer.

        In 1982 he was sentenced to eight months' imprisonment with a

recommendation for deportation for four offences of dishonesty.  In

May 1983 he was also sentenced to five years imprisonment for a drugs

offence and again recommended for deportation.  The drug (28 grammes

of heroin) had been sent to another Iranian at a house where the

applicant was living and although it was accepted by the prosecution

that he was in no way involved with the act of importation he admitted

that following receipt he became aware of the contents and pleaded

guilty to the offence of "being knowingly concerned in the fraudulent

evasion of the prohibition on importation of a class A controlled drug

(heroin)".

        He appealed against sentence to the Court of Appeal which

reduced his sentence to three years.  The applicant claims that the

trial judge whilst recommending deportation accepted his fears of

returning to Iran and indicated that he would not have to return to

that country.

        The applicant was, in the meantime, interviewed in connection

with his application for asylum in 1982 but this was subsequently

refused.

        A formal deportation order was made against him on 31 October

1984 prior to the completion of his sentence.  No appeal lies against

the merits of the deportation order.  The applicant was, however, able

to appeal under Section 17 of the Immigration Act 1971 to an

Adjudicator against the destination of Iran.  This appeal was rejected

in May 1985 since the applicant was unable to find another country

willing to accept him.  An appeal to the Immigration Appeal Tribunal

against this decision was also unsuccessful.  He was released from

custody in May 1985 on bail.  Since his release he has continued his

previous political activities by way of distribution of leaflets,

attending meetings and political demonstrations organised by the People's

Mojahedin.

        Further applications for asylum were rejected by the Secretary

of State in November 1984 and, after a Member of Parliament had

intervened on the applicant's behalf, in September 1985.

        He was arrested on 1 July 1986 under the original deportation

order and released on 21 July 1986 pending further consideration of

his case by the Home Office.  The application for asylum was

reconsidered and the applicant was interviewed on 1 August 1986.  The

Home Secretary subsequently informed the applicant's solicitors in a

letter dated 26 November 1986 of his decision to maintain the refusal

to grant the asylum application.

        On 15 July 1988 the applicant's solicitor wrote to the Home

Office requesting that the applicant be granted exceptional leave to

remain in the United Kingdom.  The Home Office replied on 25 August

1988 stating that his application for asylum had been reconsidered but

that in view of the applicant's criminal record and immigration

history exceptional leave to remain was not justified.

Relevant domestic law and practice

        The United Kingdom is a party to the 1951 Convention relating

to the Status of Refugees and the 1967 Protocol to the Convention.

This is reflected for deportation purposes in the Statement of Changes

in the Immigration Rules (HC 169) at paragraphs 153 and 165.

        Paragraph 153 reads:

        "Refugees

        Where a person is a refugee full account is to be

taken of the provisions of the Convention and Protocol

relating to the Status of Refugees.  Nothing in these rules

is to be construed as requiring action contrary to the

United Kingdom's obligations under these instruments."

   Paragraph 165 reads:

        "Asylum

        In accordance with the provisions of the Convention

and Protocol relating to the Status of Refugees, a

deportation order will not be made against a person if the

only country to which he can be removed is one to which he

is unwilling to go owing to well-founded fear of being

persecuted for reasons of race, religion, nationality,

membership of a particular group or political opinion."

        Article 1.A(2) of the 1951 Convention, as amended by the 1967

Protocol, reads, so far as is relevant:

        "... the term 'refugee' shall apply to any person who:

        (2)  owing to a well-founded fear of being persecuted

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

particular social group or political opinion, is outside the

country of his nationality and is unable or, owing to such

fear, is unwilling to avail himself of the protection of

that country ..."

Article 33 para. 1 of the Convention provides:

        "No contracting state shall expel or return a refugee

        in any manner whatsoever to the frontiers of territories

        where his life or freedom would be threatened on account

        of his race, religion, nationality, membership of a

        particular social group or political opinion."

Article 33 (2) of the Convention reads, so far as is relevant:

        "2.  The benefit of the present provision [Prohibition of

        Expulsion or Return (Refoulement)] may not, however, be

        claimed by a refugee ... who, having been convicted by a final

        judgment of a particularly serious crime, constitutes a danger

        to the community of that country."

         The power to give or vary leave to remain in the United

Kingdom is exercised by the Secretary of State in accordance with

section 4(1) of the Immigration Act 1971.  The application for asylum

in this case was treated as an application for leave to remain.  The

Secretary of State's power is discussed by the House of Lords in the

case of R. v.  Home Secretary, ex parte Bugdaycay and Others [1987] 2

WLR 606.  Lord Bridge held that challenge in the courts of the Home

Secretary's exercise of discretion was restricted to an investigation

of whether the Home Secretary had left out of account a factor that

should have been taken into account or took into account a factor he

should have ignored, or whether the decision is such that no authority

properly directing itself on the relevant law and acting reasonably

could have reached it (the "Wednesbury principles", based on

Associated Provincial Picture Houses Ltd. v.  Wednesbury Corporation

[1948] 1 KB 223).  Challenge would be by way of judicial review.

        The extent and effect of judicial review was demonstrated in

that case when it was held that the Home Secretary had failed to

appreciate a factor which he should have specifically dealt with.  This

failure was held to be fatal to the refusal of asylum.  Lord Bridge,

while acknowledging the limitations of Wednesbury principles,

explained that the courts will apply them extremely strictly against

the Home Secretary when a refusal of asylum is under review:

"Within those limitations the court must, I think, be entitled

to subject an administrative decision to the more rigorous

examination to ensure that it is in no way flawed, according

to the gravity of the issue which the decision determines.

The most fundamental of all human rights is the individual's

right to life and when an administrative decision under

challenge is said to be one which may put the applicant's life

at risk, the basis of the decision must surely call for the

most anxious scrutiny".

Lord Templeman added:

"In my opinion where the result of a flawed decision may

imperil life or liberty a special responsibility lies on the

court in the examination of the decision-making process."

        The order of the Secretary of State for the removal of the

applicant to Kenya was accordingly quashed.

        A court granting leave to an applicant to apply for judicial

reiew is empowered to direct that the decision which is subject to

review should be stayed until the court has made its decision.

COMPLAINTS

        The applicant complains that if he is sent back to Iran he

runs a strong risk of being executed in view of the attitude taken

by the Iranian authorities to persons involved in drug offences.  He

claims that he has also produced substantial evidence to the Home

Office of his involvement in political activities in the United

Kingdom against the Iranian regime, including participation in

meetings and public demonstrations.  He believes that his identity is

well known to the Iranian authorities and accordingly he fears

persecution as a result of those activities were he to return to Iran.

He invokes Article 3 of the Convention.

        He further complains with reference to Application No. 9856/82

(Kandiah v. the United Kingdom, Dec. 14.5.87 to be published in D.R.)

that he has not had the opportunity to have his deportation and fear

of persecution judicially considered.  He adopts for purposes of his

application the arguments that have been developed by the applicant in

respect of Article 13 in the Kandiah case.

        PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on the 11 July 1986 and

registered on the 16 July 1986.  The application was considered by the

Commission on the 18 July 1986 when it was decided to request

information from the respondent Government pursuant to Rule 42 (2)(a)

of the Rules of Procedure.

        The respondent Government undertook by letter dated

23 July 1986 not to remove the applicant from the United Kingdom

without informing the Commission in advance.

        After an extension of the time-limit which had been granted

the information was submitted on the 12 November 1986 and communicated

to the applicant's legal advisors for their comments.  These were

received on 29 December 1986.

        The Commission further considered the application on

14 July 1987 and decided to communicate it to the respondent

Government for observations on the admissibility and merits of the

complaints.  These observations were submitted on 28 October 1987.

The applicant's observations in reply were forwarded on

3 February 1988.

        The Commission next considered the application on 12 May 1988

and decided to invite the parties to a hearing on the admissibility

and merits of the application insofar as it raised issues under

Articles 3 and 13 of the Convention.

        The applicant was subsequently granted legal aid by the

President of the Commission on 19 August 1988.

        The hearing before the Commission was held on

7 September 1988.  The parties were represented as follows:

-   for the respondent

    Government:             Mr.  M. C. Wood, Foreign and Commonwealth

                                            Office, Agent

                            Mr.  M. Baker,   Counsel

                            Mr.  J. Eadie,   Counsel

                            Mr.  S. Bramley, Home Office, Adviser

                            Mr.  S. Spence,  Home Office, Adviser

-   for the applicant:      Mr.  D. Gray, solicitor

        SUBMISSIONS OF THE PARTIES

        Respondent Government

AS TO FACT

A.      Fear of Execution in Iran

        The applicant was interviewed at the Home Office in respect of

his fears of persecution on the 19 August 1986.  At his interview he

made it clear that he did not fear execution in Iran because of his

conviction for drug smuggling but rather because of his political

activities with the Mojahedin in the United Kingdom.  He stated that

he believed his conviction had been reported in the local press in

Manchester and that it would probably have been noted by the Iranian

Consulate in Manchester.   The Government accept that it is possible

that the Iranian authorities are aware of his conviction for smuggling

drugs.  However, they are not aware of any evidence to suggest that

any Iranian who has been convicted of a drugs offence abroad has ever

been executed in Iran on his return on the strength of that

conviction.

B.      The extent of the applicant's political activities when

        resident in the United Kingdom.

        The applicant was not politically active in Iran.  His

political activities have all taken place in the United Kingdom.

After the Iranian revolution in 1979 he became a supporter of the

Mojahedin.  He read their literature and heard tapes of speeches by

their leader Majoudrajavi.  He stated that he had been on five or six

major demonstrations between 1979 and 1982.  During this period he

attended pickets, collected money on behalf of the Mojahedin and

assisted in setting up their meetings.  He did not organise these

meetings or speak at them.

.PA:12268/87

        Between 1983 - 84 there was no political activity because of

his prison sentence.  Since being released from prison he has been

involved in the Muslim students' society (the student wing of the

Mojahedin) at Middlesborough Polytechnic.  He has brought videos and

tapes of speeches to meetings but he is not a member of the Mojahedin

because they have no members as such outside Iran - only supporters.

The applicant holds no official position in the Muslim students'

society.  He appears not to have spoken at meetings.  He is, however,

knowledgable about the beliefs and organisation of the Mojahedin.

Article 26 - Domestic remedies

        The Government wrote to the applicant's solicitor on

26 November 1986 and 25 August 1985, refusing asylum.  It is possible

to apply for leave to move for judicial review within three months of

the latest decision or out of time provided he can explain the earlier

delay.

        Bugdaycay (loc. cit.) and subsequent cases (Sivakumaran and

Others, [1985] 1 ALL ER 193;  Selladurai Jeyakumaran, decision of the

Divisional Court, 28 June 1985;  Veraj Mendis, decision of the Court of

Appeal, June 1988; Yemoh, decision of the Divisional Court, July 1988)

demonstrate that, although the courts are not prepared to dispute a

decision by the Secretary of State that a deportee will not be

persecuted in a given country provided the decision has been properly

taken, the courts are prepared to quash a refusal of asylum.  They

will do so if there is any suggestion that all factors urged on behalf

of the applicant have not been genuinely and seriously considered.

The courts are not in a position to override the decision which rests

upon an informed estimation of the political affairs of a foreign

country.  However, if as in Bugdaycay, the Home Secretary fails to pay

any, or sufficient, attention to a salient fact about the country to

which an intended deportee is to be sent, the courts will act.

        Similarly, in Yemoh, the Secretary of State refused asylum to

a Ghanaian whose account of arbitrary arrest and maltreament he did

not accept as credible because of a lack of objective medical evidence

to support it and because of the ease with which the victim had been

allowed to leave his native country.  After a close examination of

these reasons, Mr.  Justice Hutchison decided that they did not justify

the conclusion which the Secretary of State had reached and quashed

the decision.

        It might be argued that the 1951 Convention is qualified by

Article 33 (2) which disapplied the Convention's protection from

those, like the applicant, whom the Government deemed a serious danger

to society and to have been convicted of serious crime.  Article 3 of

the European Convention is not so qualified.  However, it is clear

that the courts would consider the applicant's arguments on this

point, provided he was able to satisfy them that he had a genuinely

well founded fear of persecution in Iran.

        The applicant justifies his omission to seek judicial

review by claiming that domestic law only permits a challenge to the

decision-making process and not to the merits of the decision.  The

Government, however, point out that the phrase "the merits of the

decision" means no more than that element of the decision which

remains when all irrelevant factors have been set to one side, and all

relevant factors have been fully, properly, and fairly taken into

account.

12268/87

        Furthermore, it would  be open to the applicant to raise many

of the points that he raises before the Commission in judicial review

proceedings.  For example he could raise (1) the fact that he has

committed no criminal offence and has not been involved in drug abuse

since his release from prison;  (2) his claim that the Government

ought to have interviewed his parents about his fears of perscution

when they came to the United Kingdom;  (3) his claim that in view of

the evidence supporting his fear of persecution the Secretary of State

should have found it likely that the applicant would be exposed to

inhuman or degrading treatment if returned to Iran.

        Finally the Government point out that a court granting leave

to an applicant to apply for judicial review is empowered to direct

that the decision which is subject to review should be stayed until

the court has finally made its decision.

Article 3 of the Convention

        The Government reserve their position on the principle that

deportation may in exceptional circumstances raise an issue under

Article 3.  They contend that the Commission has never formulated a

satisfactory rationale for this principle nor has it ever been

scrutinised by the Court.

        The Government treat the applicant's complaint under Article 3

as a claim that his case involves exceptional circumstances that his

deportation to Iran would constitute inhuman treatment.  In this

regard the Government point out that the applicant has had various

applications for asylum carefully considered by the Home Secretary and

rejected in June 1982, in October 1984, September 1985 and August

1986.  The conclusion reached after his interview in August 1986 was

that, quite apart from the question of menace posed by the applicant

to the community (although this was taken into account), the applicant

had failed to establish a well founded fear of persecution or that he

would suffer inhuman treatment if he were returned to Iran.

        It is clear that any fear that the applicant has of

deportation to Iran is based on political persecution.  He has made it

clear at his interview that he was not concerned about his drugs

conviction.  The applicant's solicitor has accepted in a letter to the

Commission dated 16 December 1986 that there is no "no evidence of

persons convicted outside Iran of drugs offences being executed on

their return to Iran".

        In this respect the Government do not accept that there is any

objective evidence which establishes that the Iranian authorities

would actively be concerned about a drugs offence committed outside

their jurisdiction or that they would be likely to punish for a second

time a person who had already been convicted or that they would

execute him.

        As regards the applicant's political activities, it is clear

from the facts as found by the Government at the interview with the

applicant that such activities commenced some years after he left

Iran and that they were peripheral in nature.   It suggests to the

Government that his political beliefs are doubtful and are not such as

would attract punishment under the Iranian penal system.  He is not a

political organiser but merely a supporter of a political party.

12268/87

        The Government note that the applicant's credibility has been

called into question by various inconsistencies and discrepancies in

his version of events.  Thus when interviewed by his solicitor in

February 1982 he said that he had been a member of the Mojahedin "for

about a year" whereas at his interview in August 1981 he claimed that

he first began attending demonstrations in 1974.  Similarly in 1982 he

told his solicitor he had taken part in two demonstrations in 1981

whereas by 1986 he claims to have been to most major demonstrations.

Also in 1982 he claimed that his father had never been involved in

politics but later he claimed that his father had been a passive

supporter of the Shah and that he had been dispossessed of certain

properties.  Finally, the applicant initially claimed to be a member

of the Mojahedin although in later interviews it appeared that he was

only a supporter.

        To the above discrepancies must be added the fact of his

criminal record which includes offences of dishonesty.  It is

submitted that the evidence gives a clear indication of the

applicant's propensity to distort and exaggerate the truth for his own

ends.

        It is also submitted that, when considering the applicant's

complaint, careful investigation of the character and immigration

history of the applicant is called for.  Although Article 3 is

absolute and unqualified on its face, the proportionality of

Government decisions is a relevant factor in assessing whether they

fall into the exceptional category of inhuman treatment.  In the

present case, the applicant has committed a number of serious criminal

offences while in the United Kingdom which were taken into account by

the Secretary of State in refusing him asylum as permitted by Article

33 (2) of the 1951 Convention.  Most seriously he has been concerned in

evading the prohibition on the importation of heroin.  The period of

imprisonment the applicant ultimately received for this offence, three

years, indicates that this was no mere technical infringement.  The

applicant is also an overstayer.  It was not until after his first

convictions, for overstaying and handling stolen goods, that he

applied in June 1982 for asylum.  This was despite his claim to have

become a supporter of the Mojahedin in 1979 after the overthrow of the

Shah.  Yet he did not feel it necessary to apply for asylum until after

his recommendation for deportation which followed his conviction for

overstaying.

         Finally, it is submitted that, bearing in mind the vagueness

of the applicant's involvement with political activists hostile to the

Government of Iran and the menaces that he, as a convicted criminal

and participator in offences connected with the importation of heroin

poses to the community, the proposed deportation of the applicant is

not in the exceptional category which could be described as inhuman.

Further, the decision was taken after full and anxious consideration

of all factors and an exhaustive interview with the applicant in the

company of his solicitor.  No clear evidence has been provided which

points to a serious risk of this applicant's suffering inhuman

treament if he were returned to Iran.

12268/87

Article 13 of the Convention

        It is open to the applicant to apply to the court for leave to

move for judicial review on the basis of many of the claims that the

applicant seeks to raise before the Commission.  If the court accepts

that the applicant has any prospects at all of success, the Court will

order that the application for review has suspensive effect upon the

deportation procedure until final determination of the application.

If an application for judicial review were successful the court would

probably quash the refusal of asylum and order that the asylum

application be reconsidered in the light of particular factors set out

in the judgment.  It is most likely in these circumstances that the

application for asylum would be upheld after reconsideration.

        It is accepted that the principles which an English court will

consider upon such an application are not identical to those which

will exercise the Commission in its consideration of an Article 3

complaint.  This is because an English court will be guided by the

provisions of the 1951 Convention on Refugees and the 1967 Protocol.

This is not of course fatal to the Government's case in Article 13.

The test is whether the courts are capable of providing an effective

remedy.

        The Government therefore submit that the English courts do

provide such a remedy and that this complaint is manifestly

ill-founded.

        The Applicant

As to Fact

        The applicant was interviewed by the Home Office on the

19 August 1986 and gave a very detailed account of his political

activities in the United Kingdom prior to his arrest for the drugs

offence.  He also gave details of difficulties that he had at that

time in connection with the application for the renewal of his Iranian

passport due, he claims, to the Iranian authority's knowledge of his

political activities at that time.  His drug conviction was known to

the Iranian authorities through publicity at the time of his trial and

because the fellow Iranian prisoner serving a sentence for terrorist

offences was regularly visited by Iranian Consular officials whose

discussions with the prisoner made it clear that they were aware of

the applicant's conviction as well as his political sympathies.

        Moreover, he would have come to the notice of the Iranian

authorities via persons with whom he associated in Manchester who were

known to the Iranian Consulate or via the publicity associated with a

hunger strike when he was in prison or consulate "spies" who regularly

attended dissident meetings.  He also refers to an incident when the

Iranaian Consulate wrote to the Home Office (3 March 1983) seeking

information concerning the applicant's whereabouts on the pretext that

his parents were concerned about him.  He claims that his parents had

never approached the Iranian embassy with such a request and that this

fact could have been clarified if the Home Office had agreed to

interview his parents when they came to the United Kingdom to make

representations to the Government.

12268/87

        The Government accept that the applicant was knowledgeable

about the Mojahedin.  On the evidence available any person who is

known by the Iranian authorities to be associated with the Mojahedin

would be seriously at risk were they to return to Iran at the present

time.  The evidence of such persecution is well-documented and it is

not unreasonable to infer that his association would inevitably lead

to persecution.  At his interview in August 1986 the applicant

explained how the Mojahedin is organised and the fact that supporters

are not formal members.  What is significant, however, is the fact

that the supporters involve themselves in activities against the present

Khomeni Government.  It is those activities which cause them to be

identified by the Iranian authorities and render them liable to

persecution.  The applicant states that offenders inside Iran have

been executed and publicly humiliated and that there is overwhelmning

evidence - recently well-documented in a Granada television "World in

Action" programme - of persons who have been politically active

against the Iranian regime in the United Kingdom returning to Iran

and being executed.  Since the United Kingdom Government would appear

to accept on balance that the Iranian authorities are likely to know

about his political activities and the nature of his criminal

conviction and in view of the evidence which is available relating to

drugs offenders the applicant's fear of persecution is a real one.

        Article 26  - Domestic Remedies

        The applicant points out that the Bugdaycay decision (loc.

cit.) referred to by the respondent Government was handed down after

the date of the application to the Commission by the applicant.  Had

there not been an application to the Commission, the Secretary of

State would have made no further enquiries.  The applicant complains

specifically about the deportation order signed by the Secretary of

State in respect of which there is no further appeal.

        The applicant does not accept that a remedy was available to

him in the light of the Bugdaycay decision.  The case of Bugdaycay

dealt with applicants who were considered to be "illegal entrants"

which distinguishes it from the applicant's case.  Secondly, in the

Bugdaycay case the Government had accepted that the applicant did

qualify as a refugee from Uganda.  Thirdly, it illustrates that

judicial review is not a means of reviewing the merits of an

application for asylum but simply reviewing the criteria and

procedures followed by the Secretary of State in considering an

application for asylum.  As Lord Bridge stated :

"I approached the question raised by the challenge to the

Secretary of State's decision on the basis of the law stated

earlier in this opinion, viz. that the resolution of any

issue of fact and the exercise of any discretion in relation

to an application for asylum as a refugee lie exclusively

within the jurisdiction of the Secretary of State subject only

to the Court's power of review"

        The applicant maintains in the light of the Bugdaycay case

that an application for judicial review made at the time of the

original deportation order in 1982 may have had some success given the

failure at that time of the United Kingdom Government to interview the

applicant.  This should not, however, prejudice the present

application because (a) as noted by Lord Bridge the question was

12268/87

raised for the first time in the Bugdaycay case and (b) the only

remedy that would have been available in the event of a successful

application for judicial review was to direct the Secretary of State

to make further enquiries which, of course, is what happened in the

interview on 1 August 1986.

        Finally, it is conceded that the interview on 1 August 1986

covered all relevant points.  It is therefore unlikely that judicial

review of the decision taken to maintain the refusal to grant asylum

would in this case be open for challenge on the principles developed

by the House of Lords

        Article 3 of the Convention

        The applicant refers to the documentary evidence submitted

with the Government's observations and in particular the letter from

the applicant's sister dated 13 June 1985 and the letter dated

7 January 1986 from the President of the Teeside Polytechnic Students

Union both of which strongly indicate the risks the applicant would be

subject to were he to return to Iran under the present Government.

The applicant also contests the Government's claim that he is not

concerned about his drug conviction.  As was indicated by his

solicitor following the interview in August 1986, he was most

concerned about the drug situation in particular because of the fact

that the Iranian Government was publicly hanging persons convicted of

drugs offences.  In the interview the applicant confirmed that his

fellow inmate in Frankland Prison - apparently an Iranian terrorist

serving a long sentence- will have passed on information about the

applicant to the Iranian authorities who regularly visited him there.

It is also clear from the evidence referred to above that he will have

come to the notice of the Iranian authorities.

       Nor can it be a criticism of the applicant that he had not

made an earlier application for asylum.  It should be common knowledge

that people will be reluctant to make applications for asylum if they

can remain in the country on some other basis.  The applicant, like

many Iranians, would wish to return to Iran when the situation improves

and delayed making an application for asylum until it was absolutely

necessary.  Moreover, this view was accepted by Lord Bridge in the

Bugdaycay case when dealing with the failure of the Ugandan applicant

to claim political asylum on his arrival in the United Kingdom

which he entered as a visitor.

        With respect to the Government's submissions that the

applicant's activities are peripheral, it is explained that since he

came to the United Kingdom before the revolution it is not surprising

that he was not active in Iran and like many Iranians only became

actively involved when doubts arose concerning the activites of the

revolutionary Government in the years following the revolution.  The

applicant's detailed responses to the political ideology and

activities of the Peoples' Mojahedin showed a sound knowledge of the

organisation and the evidence submitted by the Teesside Polytechnic

Students' Union corroborated his accounts of active involvement and

the fact that he was known to the Iranian authorities.

12268/87

        As regards his criminal convictions the applicant contends that

no evidence has been submitted that he represents a danger to the

community.  He states, in particular, that it was only in the oral

proceedings before the Commission on 7 September 1988 that he learnt

that the Secretary of State's refusal of asylum was also based on

Article 33 (2) of the 1957 Convention i.e. that he had been convicted

of a particularly serious crime.  The letters he had received based

the reasons for the decision entirely on a rejection of the

applicant's claim that he faced persecution.  He submits, in any

event, that Article 3 of the European Convention on Human Rights is

unqualified and that no account should be taken of the applicant's

convictions in assessing whether he is likely to be persecuted in

Iran.  Finally, he points out that since his release from prison in

1985 he has committed no further offences or come to adverse notice in

any way.

Article 13 of the Convention

        It is submitted that the ability to challenge by way of

judicial review the decisions of the Secretary of State can in no way

be compared to the independent consideration of the merits of a

person's application which is afforded by an independent appeals

procedure.  This provision requires that the person shall have an

effective remedy and the history of the manner in which representations

made by the applicant have been dealt with by the Secretary of State

indicates that no effective remedy was provided in this case.

        The attitude of the Government is exemplified in the letter

dated 11 March 1986 by the Secretary of State confirming his decision

not to defer removal arrangements pending an application to the

Commission.  The letters from the applicant's solicitor repeatedly

requesting this course of action and interviews with the applicant's

parents and himself were dismissed out of hand.  The application

for asylum has at no time been independently considered outside the

context of his criminal convictions.  Moreover, it is now evident that

the application for asylum was prefaced by and considered in the

context of his criminal behaviour.  This meant that at no time were

the merits of the application given full and independent consideration

by the Government.  Failure to provide independent judicial machinery

for considering an application for asylum renders the Government in

breach of Article 13.

THE LAW

        The applicant complains under Article 3 (Art. 3) of the

Convention of the decision of the United Kingdom authorities to deport

him to Iran. He claims that if he is sent back to Iran he runs the

risk of persecution because of his political activities in the United

Kingdom and his conviction for a drug-related  offence.  He further

complains under Article 13 (Art. 13) of the Convention that United

Kingdom law does not afford him an effective remedy in respect of this

complaint under Article 3 (Art. 3).

        The respondent Government contend with reference to recent

United Kingdom court decisions that it would have been open to the

applicant to seek judicial review of the Secretary of State's refusal

to grant him asylum.  The Government further submit that it would

still be open to the applicant to bring such proceedings in respect of

the most recent refusal of asylum by the Secretary of State.  It is

submitted, therefore, that the complaint should be rejected for

failure to exhaust domestic remedies.

        Article 26 (Art. 26) of the Convention provides as follows:

"The Commission may only deal with the matter after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law, and within a period of six

months from the date on which the final decision was taken."

        The Commission recalls that this provision requires exhaustion

of remedies which relate to the breach alleged and are at the same

time available and sufficient (see Eur.  Court H.R., Van Oosterwijck

judgment of 6 November 1986, Series A No. 40, p. 13, para. 27).  In

addition the Commission has consistently held that the mere existence

of doubts as to the prospects of success does not absolve an applicant

from exhausting a given remedy (see Nos. 5577-5583/72, Dec. of

15.12.75, D.R. 4, p. 72 with further references.).

        In the present case the Commission notes that it is possible

under United Kingdom law for the Secretary of State's refusal of

asylum to be quashed on the grounds that he had left out of account a

factor that should have been taken into account or took into account a

factor he should have ignored or that the decision is such that no

authority properly directing itself on the relevant law and acting

reasonably could have reached it (R. v.  Home Secretary, ex parte

Bugdaycay and Others [1987] 2 W.L.R. 606).

        Moreover the House of Lords has indicated that the courts will

apply the above principles extremely strictly against the Home

Secretary when a refusal of asylum is under review since the right to

life may be at stake (see above "Domestic law and practice", dicta of

Lord Bridge and Lord Templemore in Bugdaycay, loc. cit.).  It is also

clear that, in practice, if the court grants leave to apply for

judicial review, the deportation will be stayed until the outcome of

the proceedings.

        The applicant submits that the remedy of judicial review is

not effective in his case since the courts will not substitute their

view of the merits of the asylum decision for that of the Secretary of

State and limit their examination to the decision-making process.  The

applicant contends that his complaint is directed to the merits of the

Secretary of State's decision to refuse asylum and not to the manner

in which he took this decision.

        The Commission considers that the applicant is required under

Article 26 (Art. 26) to have recourse to those remedies which would be

adequate and effective to redress his complaints under the Convention.

In this respect the Commission notes that the proceedings for

judicial review which, according to the submissions of the respondent

Government would still be open to him, would enable the applicant to

seek to quash the Secretary of State's refusal of asylum with

reference to many of the claims that the applicant makes to the

Commission in the context of his complaint under Article 3 (Art. 3) of

the Convention.  Some of these claims criticise the exercise of

discretion by the Secretary of State in reaching his decisions on

asylum and thus provide a possible basis on which proceedings for

judicial review can be grounded.  In the Commission's opinion such a

remedy would have to be tried before the Commission could examine the

applicant's complaints, no evidence having been submitted which

indicates that in the circumstances of this case the remedy is

inadequate or ineffective.

        The Commission concludes that the applicant has failed to

exhaust domestic remedies as required by this provision and that his

application must be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission         President of the Commission

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