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By Khashayar Behbanai
London, England

M.A.R v The United Kingdom (1997): This case may be of interest to all those who are concerned with immigration and human rights laws, and the changing views of certain European states towards the political and justice system of Iran.

On 16 January 1997, the European Commission of Human Rights (Council of Europe) held a hearing on the admissibility and merits of an application brought by an Iranian national, MAR, against the United Kingdom.

The case concerns the proposed expulsion of the applicant to Iran and raises issues under Articles 2,3,5 and 6 of the European Convention of Human Rights (ECHR).

To see the full text of the Articles of the ECHR go to:

http://www.hri.org/doc/ECHR50.html

The applicant left Iran illegally in December 1981. In March 1982 he was granted refugee status by the United Kingdom, the UNHCR having intervened in his favor. Subsequently, the applicant was convicted, once in 1983 and twice in 1985, of possession of drugs. After the last conviction he was recommended for deportation. The British Home Secretary, having consulted with the UNHCR, decided not to take any deportation action at that stage.

However, on 9 June 1988, the applicant was convicted of being involved in the supply of heroin, and was sentenced to 10 years imprisonment and was recommended for deportation on completion of his sentence. The UNHCR agreed that the circumstances warranted an application of Article 33(2) of the Geneva Convention pursuant to which the applicant would lose his protection against deportation.

The applicant was granted parole in March 1993 but was detained pending expulsion and in August 1993 the Home Secretary issued a deportation order. The Special Adjudicator and the Immigration Appeals Tribunal rejected the applicant's appeals, the latter concluding that any risk to the applicant on expulsion was outweighed by the risk to the public should the applicant remain in the United Kingdom. The Court of Appeal rejected a further appeal on 2 May 1995. The applicant has now appealed to the European Commission of Human Rights.

The following arguments have been placed before the Commission for consideration of the the merits of the application:

The applicants main compliant is that he runs a real risk on expulsion to Iran of treatment contrary to Articles 2 and 3 of the Convention. He submits that he has demonstrated this "real risk" by reference to various reports on the political situation and the judicial system in Iran and on the vigorous anti-drugs campaign pursued in Iran since 1989. He also emphasizes his acknowledged political activities in Iran (in support of the Mojahadin) prior to his leaving of Iran, his being granted refugee status on the basis of the UNHCR's intervention and his subsequent drugs convictions and considers that the cumulative effect of these and all his circumstances would result in his life being at risk.

Furthermore, the applicant argues that Articles 2 and 3 of the Convention are of an absolute nature. Accordingly, they do not allow for any balancing of the competing interests of the applicant and the community by the domestic authorities when deciding on his expulsion; once the real risk to the applicant of treatment contrary to those Articles is established (as he submits it has been), his expulsion would amount to a violation of those Articles.

Furthermore, and on the basis of his factual submissions in relation to Articles 2 and 3 of the Convention, the applicant submits that he runs a real risk on expulsion of a "flagrant denial" of the rights guaranteed by Articles 5 and 6 of the convention. Accordingly, the responsibility of the United Kingdom is engaged in respect of these Articles and his expulsion would also amount to a violation of those Articles.

The British Government contest the applicant's submissions although they accept the absolute nature of Articles 2 and 3 of the Convention. In the first place, the British Government refer to various reports on Iran, to other countries' experiences in expelling persons to Iran and to the domestic authorities' evaluation of the evidence presented by the applicant as to the risk to him if expelled. The British Government argue that the applicant has not demonstrated a real risk that his drugs convictions or his long absence from Iran as a political refugee would result in his being treated in a manner contrary to Articles2 and 3 of the Convention should he be expelled to Iran.

Secondly, and as regards the Articles 5 and 6 complaints, the British Government argue that those complaints do not engage the responsibility of the United Kingdom under the Convention. They submit that there is no evidence that the applicant would either be detained or tried in Iran in the manner in which he alleges. The British Government submit that Articles 5 and 6 do not have the absolute and fundamental character of Articles 2 and 3 and further that the British Government are not engaged in these circumstances where a contracting state is not cooperating in the criminal process with Iran (a non-Convention state).

Accordingly, the British Government submits that the applicant's expulsion to Iran would not amount to a violation of Articles 2, 3, 5 or 6 of the convention.

What will happen now?
The Commission will now consider the merits of the application and place itself at the disposal of the parties with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention (Article 28 para. 1 (b)). If it succeeds in effecting a friendly settlement, the Commission will make a Report to the Committee of Ministers of the Council of Europe, containing a brief statement of the facts and of the solution reached.

On the other hand, if a solution is not reached, the Commission will draw up a report on the facts and state its opinion as to whether the facts disclose a breach by the British Government of its obligations under the Convention. The Report will then be transmitted to the Committee of Ministers, which will decide the matter unless the case is referred to the European Court of Human Rights by the Commission or the Government of the United Kingdom.