Yurdurgal Ay Loses In Court Of Appeal - judges say "need for a strong immigration policy" outweighs the welfare of the children.

     Beriwan 14, Newroz 3, Dilovan 12 and Medya 8 are spending their 351st day in detention.

Posted Wednesday 2nd June 2003

     Lord Justice Woolfe's judgement was long, as the hearing dealt with complex technical legal issues, but the conclusion was concise: he and the other two judges agreed that the Home Secretary was entitled to give more weight to the need for a strong immigration policy than to the welfare of the children. He therefore dismissed the appeal. He also refused permission to appeal to the House of Lords, but Mrs Ay's lawyers can petition the House of Lords directly for permission to appeal to them, and her barristers are confident that they have grounds to do so.

     The family will not now be removed on Tuesday 8 July. The judges agreed to issue any necessary order to stop the Home Office removing the family before the question of an appeal to the Lords is settled, as long as the petition is put in promptly by the lawyers. The judges took this step after the Home Office declined to give their usual undertaking not to remove while the question of a further appeal is dealt with, saying that the Home Secretary is concerned that the children should not be held in suspense any longer than necessary, ie he wishes to deport them as soon as possible.

    We are very disappointed at the decision, on several levels. First, it is by no means self-evident that what is called a "strong immigration policy" is actually necessary at all, as has been eloquently argued by writers such as Teresa Hayter in her book "Open Borders".

     Second, as Mrs Ay's barrister pointed out, the Dublin Convention (which affects cases such as Mrs Ay where the person seeking asylum has previously been in another EU member state) is flexible enough to allow exceptions, so the Home Secretary was not in fact bound to say that part of his reasoning for rejecting Mrs Ay's claim for protection is that Germany must finally determine Mrs Ay's case.

    Thirdly, in his judgement Lord Justice Woolfe read out much of the two fairly detailed medical reports on the children. One of the doctors said firmly that not only was remaining in England the best option for the children, but in his view the middle two in particular would not recover from being sent to Germany. When these medical reports were presented, the Home Office queried some of it, but produced no counter evidence. But Lord Justice Woolfe then stated that he agreed with Mr Justice Hooper (who heard the matter at any earlier stage) in believing that "the effect of further disturbance on the children [of return to Germany] would not be serious or grave. It would be one which would have an effect for a relatively confined period".

    He did not explain why he formed this view, or what he thought was wrong with the medical evidence, or how he could make this prediction without taking into consideration the fact that if the children are sent to Germany, in reality they will be faced with either almost immediate removal to Turkey (most likely) or a period of further fear and uncertainty, again almost certainly followed by removal to Turkey.

    Lastly, this case highlights the difficulty of trying to defend asylum seekers now. Because the Home Secretary has used the provisions of recent legislation to certify her case, Mrs Ay cannot get a full hearing of her case in front of a court, her lawyers can only argue around technical legal issues to do with the way the law has been implemented. So the Home Office is free to comment on her "immigration history" from their perspective, but she cannot reply (even if she were present, and not locked up in Dungavel) by explaining to the court why she and her husband left Turkey in 1988, or why they felt forced to come to England after being refused protection, as many Turkish Kurds were at that time, in Germany. Nor can she and the four children come to court and explain for themselves why they are afraid of being sent to Germany and on to Turkey. Nobody is in a position even to explain such things as the fact that the children's names are Kurdish. Lord Justice Woolfe at one stage referred to the children by name: Beriwan, Newroz, Dilowan and Medya. Probably he and his colleagues are not even aware that the children's names alone could cause problems for them in Turkey because for practical purposes the use of Kurdish names is forbidden.

     Please raise the case with your MP, and ask him or her to help Chris Pond, MP for Gravesham, the family's own MP, try to persuade the Home Secretary to change his mind and let them stay.

     Please write quoting HO Ref APX/99/953 to Home Secretary David Blunkett or the Minister for Nationality and Immigration, Beverley Hughes, at the Home Office, 50 Queen Anne's Gate, London SW1H 9AT or fax them on 0207 273 3965, asking the Home Secretary to exercise his discretion and allow the Ay family to stay here on compassionate grounds.

     Please also send a copy to your own MP, asking him to contact Chris Pond, the Ay family's own MP, to offer help in persuading the Home Secretary to let the family stay.

Background:
     Yurdurgal Ay, a Kurdish woman from Turkey, and her four children, Beriwan (14), Newroz (12), Medya (7) and Dilovan (11), are fighting deportation from Britain. Her husband Salih Ay was sent back to Germany, supposedly a "safe" country, last year. On 11th May 2002 German officials deported him to Istanbul. Since then there has been no news, and Mrs Ay is very worried about what has happened to him. It is almost certain that if Mrs Ay and the children are sent back to Germany they will then be sent on to Turkey.

http://www.ncadc.org.uk/letters/newszine33/ay.html

You can contact the campaign:
Ay Family Campaign
c/o National Coalition of Anti-Deportation Campaigns
131 Camberwell Rd
London SE5 OHF
tel: 0207 701 5197,
phone Haringey Kurdish Community Centre on 0208 880 1804.