Turkey’s role in international migration has changed. From a country of origin and/or transit,
The Law on Foreigners and International Protection of 2013
In 2013, Turkey enacted a new law entitled "Law No. 6458 on Foreigners and International Protection" ("LFIP"). The LFIP was drafted by the Ministry of Interior, in collaboration with various entities, such as international institutions, governmental and non-governmental organizations, human rights associations and academics. Its drafting stage took over three years. Provisions of the LFIP regarding the administrative structure and the appointment of personnel came into force on the date of publication of the Law in the Official Gazette, namely 11 April 2013. Additional provisions of the LFIP entered into force on 11 April 2014.
The LFIP was basically drafted in accordance with the EU’s migration and asylum law. However, in the preparation stage of the Law, account was also taken of the experiences of various other countries regarding their migration and asylum laws and practices as well as the structure of their agencies responsible for the implementation of such laws. It should be emphasized, however, that, among all the factors that were taken into consideration, the most important was the jurisprudence of the European Court of Human Rights (ECtHR). The enactment of the LFIP while dealing with the mass influx of Syrians was a bold step. Despite the fact that Turkey has faced a mass influx of Syrians since 2011 as well as other complex migration problems since the 1990s, Turkey has taken a human rights centered approach rather than a national security centered approach in the LFIP. The LFIP introduces new systems, principles and institutions in the field of migration and asylum in Turkey. So does related secondary legislation currently under preparation.
Basis of International Protection in Turkish Law
One of the primary sources of international protection is the 1951 Geneva Convention Relating to the Legal Status of Refugees and its additional Protocol of 1967. Both instruments were ratified by Turkey in 1961 and 1968, respectively. Turkey is, however, among the four countries that continue to maintain a geographical limitation to the applicability of the Convention. Hence, Turkey is not obligated to apply the 1951 Geneva Convention to refugees coming from outside Europe.
The second legal source of international protection is the LFIP. However, it is stated in the law that principles and procedures regarding implementation of this Law shall be determined by subsequent regulations. The general regulation for the implementation of overall provisions of the LFIP is currently under preparation. Three regulations, however, have already been put into practice. One of these regulations is the Regulation on the Establishment Operation and Supervision of Reception and Removal Centers, which has been in force since 22 April 2014. Another is the Regulation on Temporary Protection which has been in force since 22 November 2014. The discussions relating to removing bureaucratic and legal obstacles for the right to work of temporary protected people culminated in the implementation on 15 January 2016 of the Regulation on Work Permits of Foreigners under Temporary Protection.
Types of International Protection under Turkish Law
In addition to general refugee protection, "conditional refugee", "subsidiary protection" (also referred to as "additional protection", "secondary protection", "supplementary protection" or "complementary protection") and "temporary protection" have been adopted in the LFIP.
For a foreigner to be accepted as a refugee by Turkey, the following conditions must be satisfied:
the events leading to a foreigner’s refugee status must have taken place in Europe,
the foreigner applying for refugee status must fear being persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion,
the foreigner’s fear of persecution must be well-founded,
the foreigner applying for refugee status must be outside of his country,
the foreigner applying for refugee status must be unable to avail himself of the diplomatic protection of his country, or be unwilling to do so due to such fear.
Thus, under current Turkish legislation only foreigners coming from European countries and meeting the conditions set forth in article 1A(2) of the 1951 Geneva Convention can be granted refugee status. Under the LFIP, foreigners coming from non-European countries are not conventional refugees but "conditional refugees". Conditional refugees can be issued residence permits until finding a safe third country which will accept them as a refugee, e.g. in the framework of
According to a verdict by the ECtHR in 1999 Turkey's decision to limit the scope of application of the Geneva Refugee Convention to persons originating from a European country does not violate provisions laid down in the European Convention on Human Rights (EHCR). Therefore, Turkey may uphold this geographical limitation.
Subsidiary or complementary protection can be granted to a foreign or stateless person who cannot be designated as a refugee or conditional refugee but who, if he is sent back to his country of origin or residence, will be sentenced to death and will eventually be executed, or will be subject to torture, inhumane or humiliating punishment or treatment, or, in case of international or nationwide armed conflict, who is unable to avail himself of the protection of his country of origin or residence because he would face serious threat against his person due to indiscriminate violence, or is unwilling to avail himself to the protection of his country of origin due to such threat.
In order to be granted temporary protection foreigners:
must have been forced to leave their country in masses;
must be unable to return to the country they came from; and
must be in need of urgent and temporary protection.
Turkey provides temporary protection to those Syrians who fled the armed conflict between the opposition forces and the Syrian military, or who are at serious risk of becoming victims of widespread violence or systematic and general human rights violations. Under current Turkish law they cannot be recognized as refugees not only due to the above mentioned geographical limitation to the Geneva Refugee Convention but also due to arriving in Turkey in masses.
Central Actors Guiding International Protection
The LFIP reshaped the administrative structure of migration affairs. All duties and powers of the foreigners’ offices formerly within the police departments passed to the Directorate General for Migration Management ("DGMM"), one of the directorates general within the headquarters of the Ministry of Interior. The DGMM is going to set up migration counselor's or migration attaché’s offices in certain Turkish embassies abroad. Turkey consists of 81 cities each administered by a "governorate". The DGMM also has provincial offices within the governorates of the 81 cities and district offices in 147 districts. All governorates are considered to be provincial branches of the Ministry of Interior. The LFIP stipulates that international protection applications shall be filed in person at a Provincial Directorate of Migration Management office under the governorate. The final decision, however, is made by the DGMM.
Accommodation of Applicants for and Persons Benefiting from International Protection
The LFIP lays down basic principles for the establishment and operation of reception, removal and accommodation centers. A regulation of 22 October 2014 provides detailed information on procedures and principles related to the establishment, management, operation and supervision of these three types of asylum seeker related centers. Accordingly, reception and accommodation centers are setup to provide accommodation, food, health, social and other needs of the applicant and beneficiary of international protection. Foreigners who are expelled and placed under administrative detention shall be accommodated in removal centers. Temporary centers can be established in extraordinary and urgent circumstances to function either as reception and accommodation centers or removal centers. A typical example of a temporary center is a camp for temporary protected Syrians.
For reasons of public security conditional refugees and beneficiaries of subsidiary protection status may be obliged by the DGMM to reside in a designated province, and to report in using determined procedures and at set intervals. Their place of residence is registered in the address registration system and the information is passed on to the respective Provincial Directorate of Migration Management.
Rights Acknowledged an Applicant or a Beneficiary of International Protection
An applicant or a beneficiary of international protection and his or her family members shall have access to primary and secondary education services. Those applicants or beneficiaries of international protection in need may be granted access to social assistance and services. They also have access to a broad range of health services. Access to employment is possible when beneficiaries of international protection including Syrians get a work permit from the Ministry of Employment and Social Security. In order to accelerate the employment of temporary protected people, particularly the Syrians, a specific regulation is made. The Regulation on Work Permits of Foreigners under Temporary Protection has been in force since 15 January 2016 and provides an opportunity to temporary protected people to work in farms and lands without work permits. An applicant who is identified as being in need may be provided with pocket money in accordance with procedures and principles to be determined by the Ministry of Interior upon approval of the Ministry of Finance. For example, all Syrians living in camps are provided pocket money.
In addition to the EU, certain human rights and asylum organizations as well as some academics criticize the LFIP as it maintains the geographical limitation to the application of the Geneva Refugee Convention. However, lifting the geographical limitation is one of the preconditions that Turkey must fulfill before accession to the EU. Although Turkey is currently negotiating with the EU to lift the geographical limitation provision, it seems that Turkey intends to maintain the geographical limitation for the time being. One of the reasons for this decision is certainly that Turkey, being at the crossroads of Asia, Europe and Africa, has become the world's primary host country of people seeking protection. Other reasons are on-the-ground geographical realities at the land borders, ineffective coastline border management, security problems arising from terrorism, limited financial sources to conduct an effective migration management, ongoing political conflicts and wars in neighboring countries, difficulties coping with the mass influx from neighboring countries, and the lack of readmission agreements with countries in the Middle East, Asia and Africa. Turkey may lift the geographical limitation depending on whether there can be effective burden sharing at the international level, whether readmission agreements with Middle Eastern, Asian and African countries can be concluded, and depending on progress made with regard to Turkey’s negotiations for accession to the EU.
Turkey has made significant progress in migration and asylum matters by enacting the LFIP. Before implementing the LFIP there was no sufficient legal framework regulating asylum-related issues. An important point is that Turkey made this progress while dealing with the mass influx of Syrians. Currently, Turkey hosts more than 2.7 million Syrians who fled their country of origin. The LFIP and related secondary legislation introduce new systems and institutions in the field of migration and asylum. Even human rights associations have complimented on the law for its human rights-centered approach.