CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 septembre 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)