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)