The information presented here are derived from Refugee Rights Turkey’s Country Report on Turkey from December 2015 published on AIDA – Asylum Information Database. We would like to express our gratitude for allowing us to share it here. See more at Asylum in Europe
Although Turkey was among the first signatories of the 1951 Refugee Convention, it became party to the Convention with a “geographical limitation”, which as per Article 1-B of the Convention gave state parties the option of limiting their obligations under the Convention to refugees originating from ‘European’ countries of origin.3 Although the “geographical limitation” option was dismantled by the 1967 New York Protocol to the Convention, state parties who had signed the Convention prior to 1967 retained the option of maintaining it.4 Today Turkey remains the only Council of Europe member state, which still maintains this “geographical limitation” policy. Accordingly, as far as refugees originating from ‘European’ countries of origin, Government of Turkey considers itself fully bound by the entire range of obligations towards refugees under 1951 Convention. However, as far as refugees originating from ‘non-European’ countries of origin, Turkey does not consider itself bound by the 1951 Convention obligations – with the exception of the “undertaking to cooperate with UNHCR” under Article 35 of the Convention and the non-refoulement principle protected by Article 33 of the Convention, which has since then acquired the status of customary international law. *
Turkey’s EU-inspired new Law on Foreigners and International Protection (LFIP) was adopted in April 2013 and fully came into force in April 2014. The LFIP for the first time introduced a legal concept of “temporary protection” in Turkish law and thereby provided the basic underpinning of a proper domestic law basis for Turkey’s de facto “temporary protection” practices in regards to refugees from Syria since March 2011.
Article 91 LFIP envisions the possibility of the implementation of a “temporary protection” regime, in situations of “mass influx” for refugees. The article however does not directly provide any elaboration regarding principles, content and procedures to be applied to persons concerned. Instead, it stipulates the adoption of a separate Board of Ministers Regulation on “temporary protection” to lay down the specifics and implementation framework of any such “temporary protection” practices to be carried out on the basis of Article 91.
While the LFIP itself fully came into force in April 2014, it was not until October 2014 that the Temporary Protection Regulation (TPR) was finally published. As such, the TPR came to constitute the main piece of domestic legislation that was now to govern and regulate Turkey’s existing de facto “temporary protection” practice that was already in place since 2011.*
Syrians and non-Syrians are populations of protection seekers and subject to two different sets of asylum rules and procedures. Non-Syrian protection seekers in Turkey are subject to the new “international protection” procedure administered by DGMM on the basis of the “Law on Foreigners and International Protection” (LFIP), which came into force in April 2014. As of 8 December 2015, a total of 134,140 persons were registered with DGMM in the framework of Turkey’s new “international protection” procedure.
The new Law lays down three forms of individual “international protection” status, as well as elaborating procedural rules and reception conditions for applicants. The newly created DGMM is responsible for registering and processing “international protection” applicants and for granting status pursuant to the criteria established by the Law. For reasons related to Turkey’s unique “geographical limitation” policy on the 1951 Refugee Convention, individual asylum seekers are also expected to file a second, parallel application with UNHCR Turkey, which carries out its own Mandate refugee status determination procedure (RSD) on the same persons and makes resettlement referrals from Turkey.*
The Law on Foreigners and International Protection (LFIP) provides 3 types of individual “international protection” status in accordance with Turkey’s “geographical limitation” policy on the 1951 Convention:
(1) Persons who fall within the refugee definition in Article of the 1951 Convention and come from a ‘European country of origin’ qualify for “refugee” status under LFIP, in full acknowledgment of Turkey’s obligations under the 1951 Convention. The Turkish legal status of “refugee” under LFIP should afford rights and entitlements in accordance with the requirements of the 1951 Convention, including the prospect of long-term legal integration in Turkey. Whereas;
(2) Persons who fall within the refugee definition in Article of the 1951 Convention but come from a so-called ‘non-European country of origin’, are instead offered “conditional refugee” status under LFIP. The “conditional refugee” status is a Turkish legal concept introduced by the LFIP for the purpose of differentiating in treatment between 1951 Convention-type refugees originating from ‘non-European’ states and those originating from ‘European’ states. The Turkish legal status of “conditional refugee” under LFIP affords to beneficiaries a set of rights and entitlements lesser to that granted to “refugee” status holders. Most importantly, “conditional refugee” status holders are not offered the prospect of long-term legal integration in Turkey and excluded from “family unification” rights.
(3) Persons who do not fulfil the eligibility criteria for either “refugee” status or “conditional refugee” status under LFIP, who would however be subjected to death penalty or torture in country of origin if returned, or would be at “personalized risk of indiscriminate violence” due to situations or war or internal armed conflict, qualify for “subsidiary protection” status under LFIP. The Turkish legal status of “subsidiary protection” fully replicates the subsidiary protection eligibility definition provided by the EU Qualification Directive. Similar to the “conditional refugee” status holders, “subsidiary protection” beneficiaries receive a lesser set of rights and entitlements as compared to “refugee” status holders and are barred from long-term legal integration in Turkey. Notably however, unlike “conditional refugee” status holders, “subsidiary protection” beneficiaries are granted family unification rights in Turkey. *
As of 31 October 2015, there were a total of 235,901 non-Syrian refugees and asylum seekers registered with UNHCR, among which Iraqis (49%), Afghans (35%) and Iranians (10%) constituted the largest groups. On the DGMM-side of the ‘parallel procedures’ arrangement, as of 8 December 2015, a total of 134,140 persons were registered within the framework of Turkey’s “international protection” procedure.
The discrepancy between the UNHCR-registered caseload and DGMM-registered caseload begs explanation since the two procedures theoretically encompass the very same protection seekers, who are asked to register with both agencies. This discrepancy can be explained by three factors:
Firstly, the current practice on the ground is such that the vast majority of newly arrived asylum seekers first approach UNHCR. Following their registration with UNHCR Turkey, they are referred to a province where they are advised to initiate their “international protection” applications at the Provincial DGMM Directorate. Therefore, the actual initiation of the “international protection” request and the DGMM registration takes place after the UNHCR registration. In practice, not all persons who register with UNHCR actually report to their assigned province to initiate their procedures with DGMM. Specifically, it is understood that significant number of Iraqi and Afghan applicants with UNHCR choose not to proceed with the subsequent DGMM registration for a variety of reasons. Secondly, most Provincial DGMM Directorates are currently overburdened by the requirements and duties regarding the registration of “temporary protection” beneficiaries. This leads to delays in the actual completion of the DGMM registration of new “international protection” applicants. Thirdly, some of the Iraqi protection-seekers registered with UNHCR actually stay in Turkey on the basis of “humanitarian residence permits” in accordance with Article 46 of LFIP and therefore would not be reflected in the DGMM’s “international protection” case load as such.*
Article 73 LFIP defines “first country of asylum” as a country (a) “in which the applicant was previously recognised as a refugee and that he or she can still avail himself or herself of that protection” or (b) “or where he or she can still enjoy sufficient and effective protection including protection against refoulement”.
For a country to be considered a “safe third country”, the following conditions must apply: (a) The lives and freedoms of persons are not in danger on the basis of race, religion, nationality, membership to a particular social group or political opinion; (b) The principle of non-refoulement of persons to countries, in which they will be subject to torture, inhuman or degrading treatment or punishment, is implemented; (c) The applicant has an opportunity to apply for refugee status in the country, and in case he or she is granted refugee status by the country authorities, he or she has the possibility of obtaining protection in compliance with the 1951 Refugee Convention; (d) The applicant does not incur any risk of being subjected to serious harm.
For a country to be considered a “safe third country” for an applicant, an individual evaluation must be carried out, and due consideration must be given to “whether the existing links between the applicant and the third country are of a nature that would make the applicant’s return to that country reasonable.”*
According to Article 70(1) LFIP, the applicant shall be informed during registration on the procedures which are to be followed throughout the processing of his or her application as well as their rights and obligations. However the mentioned article does not specify the ways of informing the applicant.
The Temporary Protection Regulation (TPR) also has a provision on informing the applicant upon registration. According to the Article 19(5) TPR, an applicant shall be informed on the process related to temporary protection, their rights and obligations and other issues in a language they can understand. This article also mentions that leaflets and documents may be drawn up for dissemination of information when necessary. While there is no information leaflet available yet to applicants under the LFIP, there is a short “Registry Information Leaflet” for the Syrian nationals provided on the website of DGMM.
Applicants’ access to UNHCR is guaranteed under Article 68(8) and Article 59(1)(c) LFIP. These two provisions mainly focus on the access of applicants to UNHCR from detention and removal centres.
Applicants’ access to NGOs are guaranteed under the Article 81 LFIP, entitled “Legal services and counselling”. While an applicant or a beneficiary of international protection is entitled to benefit from legal counselling provided by NGOs under this article, there is no clear definition of the procedure followed, however. Since the implementation of the LFIP in the practice is a recent development, there is no independent report yet on access to NGOs or UNHCR.*
The new Law on Foreigners and International Protection (LFIP) created a brand new, civilian Directorate General of Migration Management (DGMM) mandated to take charge of migration and asylum. This new agency is currently still in the process of establishing full operational command on the asylum case load and building a full-fledged new asylum system from scratch.
The Agency is organised in terms of 12 Departments, one of which is the Department of International Protection, the subcomponent of DGMM in charge of registering and deciding on applications for international protection. On the other hand, the Department of Foreigners is in charge of all processing and status decisions concerning the treatment of various categories of legal and irregular migrants that do not fall within the scope of international protection, including removal procedures and administrative detention of foreign nationals for the purpose of removal. As such, decisions on admission to territory and legal stay on territory and international protection eligibility determinations are mandated to different departments within one unified agency in DGMM.*
AFAD is one of the institutions that implements principles and procedures for the of the temporary protection along with DGMM.
The Turkish Government’s Disaster and Relief Agency (AFAD) is in charge of building and managing the camps that are used to accommodate “temporary protection” beneficiaries. Furthermore, Article 26 TPR designates AFAD as the ‘coordinating agency’ with regard to the delivery of services and entitlements by relevant Ministries and Government agencies to “temporary protection” beneficiaries, including those in the fields of healthcare, education, access to labour market, social benefits and assistance and interpretation. The 18 December 2014 dated AFAD Circular on the Administration of Services for Temporary Protection Beneficiaries provides further guidance on the specifics of services and entitlements to be delivered in each field.*
As the Government of Turkey finally adopted the LFIP in April 2013 and made a commitment to build a full-fledged national asylum system from scratch and created – in DGMM – a specialised new Government agency for this purpose, UNHCR Turkey stepped up its focus on supporting Turkey’s asylum capacity-building efforts while preparing to retreat to a more ‘complementary’ role in the context of the new “international protection” procedure provided by the LFIP. Indeed, the LFIP firmly establishes DGMM as the agency designated to process and decide asylum applications in Turkey and does not grant UNHCR a role as decision maker.
At present, while the DGMM is gradually taking control of the “international protection” case load and taking steps towards the full implementation of the provisions of LFIP, UNHCR is also reconsidering the organization and priorities of its Mandate RSD operation in Turkey in conjunction with the emerging new Government procedure. There are ongoing discussions regarding the future modalities of the cooperation arrangement between the two agencies – subject to the understanding that the new “international protection” procedure is the only legally binding asylum procedure in Turkey and DGMM is keen to gradually assert itself as the sole decision maker on asylum applications. That said, in the foreseeable future UNHCR will continue to identify and submit selected cases for resettlement.*