Removal and refoulement

Turkey

Country Report: Removal and refoulement Last updated: 30/11/20

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Independent

The derogation from the non-refoulement principle

 Applicants for international protection generally have the right to remain on the territory of Turkey throughout the procedure.[1] However, an exception to this rule was introduced by way of emergency decree in October 2016, providing that a deportation decision “may be taken at any time during the international protection proceedings” against an applicant for reasons of: (i) leadership, membership or support of a terrorist organisation or a benefit-oriented criminal group; (ii) threat to public order or public health; or (iii) relation to terrorist organisations defined by international institutions and organisations.[2] The reform was consolidated by Law No 7070 on 1 February 2018.

For foreigners who have been convicted of an offence, the Public Prosecutor shall request the opinion of the Ministry of Interior as to whether or not they should be removed from the country.[3]

The law effectively enables the deportation of asylum seekers, beneficiaries of international protection and beneficiaries of temporary protection (see Temporary Protection: Protection from Refoulement) on the aforementioned grounds which remain largely vague and could be interpreted widely.[4] The reform introduced by the Decree has been criticised for facilitating and exacerbating risks of arbitrary deportations jeopardising the life and safety of refugees.[5]

Cases of deportation under Article 54(1)(b), (d) and (k) LFIP continued in 2019.[6] Cases reported by lawyers refer to criminal investigations, even if they do not result in a conviction, followed by administrative detention for the purpose of removal (see Grounds for Detention).

Deportation on public order, public security and public health grounds is linked to the security restriction codes issued by DGMM, a practice still not governed by clear, publicly available criteria.[7] The implementation and regulation of these codes is not set out in the law but likely in internal circulars and instructions within the administration.

Since Istanbul Airport became the main airport in Istanbul the application process from the airport has improved and deportations from Sabiha Gökçen are now rare. In early 2019 there was a case of a deportation from Atatürk Airport in Istanbul (closed as of April 2019) of an Egyptian political opponent who is now reportedly imprisoned in Egypt.[8] A criminal case has been opened against officers who carried out the deportation.

Security-related codes such as “G89” for foreign terrorist fighters and “G87” for general security seem to still be applied, though only in specific parts of the country, such as Gaziantep.[9] The assessment of risks, conducted by the Risk Analysis Department as far as airports are concerned,[10] is made with reference to broad criteria and in practice may be based on the appearance or point of entry of the individual e.g. Turkish-Syrian border.[11] Intelligence from other countries often leads to the issuance of a security restriction code, even though the content and quality of intelligence vary depending on the issuing country.[12]

Security codes can be only appealed before the Administrative Court of Ankara, since they are issued by DGMM Headquarters. In appeals against the issuance of restriction codes, confidential documents submitted by DGMM are not available to the individual or his or her lawyer; they can only be accessed in person at the registry of the Administrative Court of Ankara.[13] The court generally leaves a wide margin of discretion to DGMM with regard to the issuance of codes. It has not taken a uniform approach to the scrutiny of codes, with some rulings annulling the issuance of codes for want of evidence and others upholding them.[14] In Izmir lawyers had some success in appealing codes due to procedural errors by the administration who at times have been unable to provide information on the legal basis for applying the code, or where there is a lack of legal notification or translation. In Izmir there is no specific profile of the people being assigned codes, anyone can be assigned a code, even Americans or Germans.[15]

In many cases,[16] Administrative Court rulings annulling the issuance of a security restriction code are later overturned by higher instance courts.[17] In a January 2019 ruling, the Constitutional Court declared lack of jurisdiction to rule on a complaint concerning the cancellation a code.[18]

Another problem is the lack of country-based information about returns so it is unclear, for example, how many returnees were Syrians or non-Syrians.[19]

Recent amendments to the LFIP allow for the travel costs for removal to be borne by the deportee. If the individual does not have sufficient money, the expense shall be borne by DGMM yet in the same article it states “money belonging to the foreigner, apart from the amount that is required to meet the basic needs identified by the Directorate General, will be recorded as income to the Treasury”.[20]

 

Appeal before the Administrative Court

 

Courts have clarified that the removal decision must be properly notified to the individual, either in writing or orally, and include information on appeal possibilities.[21] The appeal against a deportation decision is a remedy separate from remedies in the international protection procedure.[22] It now has automatic suspensive effect, following a review of the LFIP in reforms from December 2019, and the deletion of exceptions to the right to remain on the territory.[23]

However, removal decisions must be appealed before the Administrative Court within seven days of notification.[24] Lawyers say it is extremely difficult to gather all the information and write an appeal in seven days particularly if the case needs translation work or there are difficulties accessing a client in detention. This short time limit has a negative affect both on access to justice and the quality of the lawyer-client relationship. [25]

On the other hand, because the appeal now stops the deportation and practice is in conformity with the law, lawyers no longer need to apply to the Constitutional Court to stop deportations. Lawyers now only need to apply when an administrative body unlawfully deports their client or to secure a possible application to ECtHR.[26]

Since first instance Administrative Court decisions are not shared with the public in Turkey, it is difficult for experts and lawyers to assess the effectiveness and quality of judicial review. In the past there was no uniform application of the non-refoulement principle in Administrative Court reviews of deportation decisions. Even where the execution of removal was suspended by Administrative Courts, compliance with court orders was reported to be arbitrary and dependent upon the individual police officers in question. It is still too early to assess the impact of the new regulation, but the following cases illustrate developments in 2019.

There was a positive decision from the Van 1st Administrative Court concerning the deportation of a Christian Iranian in 2019. The grounds for the positive decision were the submission of translated evidence from the criminal court case of the applicant from Iran. The applicant was caught in Van without ID and sent to the removal centre to be deported. His application for international protection was not accepted by the removal centre management without a cover letter from his lawyer. The client was told that the accelerated procedure would be applied but did not receive a reply from Van PDMM for 11 months during which time he was in detention. His application was accepted only after the positive judgement of the Van 1st Administrative Court cancelling the deportation decision. His lawyer was not notified about his release from the removal centre. After three applications for his release from the removal centre which were all rejected without any legal grounds, he was released on the grounds that ‘the detention period was long enough’ and obliged to give his signature weekly in Van. Once he was registered in Van and received international protection, he applied for family reunification.[27]

In an important case in Izmir, an appeal was accepted based on a need to undertake a careful assessment as per Article 55(2) of the LFIP. The potential returnee was from Mali although the government claimed he was lying and actually from Cameroon, which was a ground for deportation. The court ruled there was not enough due diligence and a lack of assessment to find out the returnee’s real name and nationality so the deportation should be cancelled. The assessment of nationality was not carried out in an effective way as required by Article 55(2) LFIP.[28]

Lawyers in Van, Izmir and Antakya expressed serious concerns about clients being forced to sign voluntary return forms.

Deportations are executed from Van either to deportees’ own countries if they are from Iran or Afghanistan or to another safe country. Clients who signed voluntary return forms have been deported to Armenia.[29]

In the removal centre in Van, there are leaflets and advertisements on voluntary return but no information about international protection or legal aid. Lawyers thus assume that the system is return-oriented. Clients were often deported even after lodging an appeal. There were allegations that potential returnees were given wrong or fraudulent information to make them sign the voluntary return document. In most cases, signatures are taken without the presence of a lawyer. Out of three cases of voluntary return forms assessed by a lawyer in Van, none of them were really ‘voluntary’. In one case, two Iranians signed the form because they did not want to stay in the removal centre. In another case, a client with a long-term residence permit in Turkey was caught in Bodrum by the police while he was on holiday with his friend. When the police found a plastic boat in his car they assumed that he wanted to leave Turkey illegally.[30] He was sent to the removal centre to be deported to Iran. He is now in Iran but wants to come back to Turkey. However, there is a code on his name and a ban to enter Turkey for 18 months.[31]

There have been returns from the Izmir removal centre which were also judged not to be ‘voluntary’. People reported they were forced to sign the forms by threat or were given the wrong information.[32] There were also allegations that an illiterate Syrian had his finger broken while forcing him to put his fingerprint on the form. ‘Real’ voluntary returns took longer. For instance, a voluntary return of a Pakistani refugee took three months. [33]

In 2019, in Antakya lawyers identified voluntary return forms and unlawful signatures as major issues. In one case a young Syrian woman was a plaintiff in a criminal case of sexual assault but was also questioned by the prosecutor regarding a drug related case. Right after the questioning she was transferred to 500 Konutlar police station because she had signed a voluntary return form without knowing the content of the document. On 14 December 2019 a lawsuit was filed to stop the deportation before the Administrative Court.[34] However, in between, she was forcibly deported. The lawyer tried to stop the deportation by calling politicians, NGOs and emailing DGMM saying that the client had changed her mind and she did not want to go back to Syria. The lawyer also obtained a written statement from the client that she had changed her mind and did not want to return to Syria. Although the migration officer assured the lawyer that she would not be deported, the family notified the lawyer that she had already been deported to the Syrian border alone.

In another case a man was involved in an affair with a Turkish woman who complained to the prosecutor’s office about online harassment. The client was questioned by the police and sent to 500 Konutlar police station because he had signed a voluntary return form. The lawyer took a statement that he had changed his mind and did not want to voluntarily return anymore. The migration officer rejected the statement and the client was returned to Syria. In a third case a Syrian woman with five children was transferred to the removal centre on the grounds of having double registration. She was allegedly forced to sign a voluntary return form but the police officer realised that she belonged to a vulnerable group and could not be voluntarily returned without her family. She was released by the decision of Hatay governorate[35] although her temporary protection had not been re-activated at the time of writing.[36]

Article 60(a) LFIP on assisted voluntary return was amended in December 2019 to add that in-kind or cash support can be provided to persons deemed appropriate by the DGMM in cases of voluntary return to their country of origin.[37]

 

The complaint procedure before the Constitutional Court

 

An individual complaints procedure is available before the Constitutional Court, which is styled after the individual complaints procedure of the European Court of Human Rights (ECtHR) and is partially aimed at reducing the high number of complaints against Turkey at the ECtHR. Persons can file an individual complaint with the Constitutional Court on claims of a violation of “any of the fundamental rights and liberties provided by the Turkish Constitution and safeguarded by the ECHR and its Protocols” within 30 days of the exhaustion of all existing administrative and judicial remedies.[38]

While individual complaints to the Constitutional Court do not carry suspensive effect, an urgent interim measure can be requested by the applicants as per Article 73 of the Rules of Court on account of “serious risk on the applicant’s life, physical and moral integrity”. This urgent application procedure by the Constitutional Court, in situations of imminent risk of deportation where the person concerned alleges a risk to his or her life or risk of torture if returned, is similar in nature to the Rule 39 procedure of the ECtHR.

Although the individual complaint procedure at Turkey’s Constitutional Court does not have automatic suspensive effect and a separate interim measure request must be filed and decided by the Court on a case by case basis, the ECtHR found in Sakkal and Fares v. Turkey that this procedure constituted an effective remedy, taking into consideration case law from the Constitutional Court which has halted deportations from Turkey. The first interim measure was given in 2014 in a case of an Algerian political dissident who had been tortured and imprisoned due to his political opinions.[39] In practice, the Constitutional Court seems to grant interim measures on different issues such as access to a lawyer or prevention of refoulement.[40]

After the entry into force of Emergency Decree No 676, the only effective recourse for preventing removal was a complaint before the Constitutional Court together with a request for interim measures. This changed in 2019. The Court had delivered a pilot judgment in the case of Y.T. on 12 June 2018, launching a pilot procedure to examine whether requests for interim measures stemmed from a structural problem to protection from refoulement and, if so, what measures should be taken.[41] In its decision published in July 2019,[42] the Court said that Articles 53(3) and 54 of LFIP should be revised and that appeals against removal should have suspensive effect, especially where deportation could create a structural problem and severe human rights violations. The Court gave the authorities one year to make the necessary legal changes otherwise the Court would examine all applications filed requesting an interim measure to stop deportations in substance. According to the Court, there were 1,545 such applications between 29 October 2016 and 8 April 2019. The Court also accepted the request of the applicant to not be deported and awarded compensation and legal fees. A legal amendment to these and other articles of the LFIP was made in December 2019.[43]

Some lawyers still apply to the Constitutional Court when an administrative body unlawfully deports their client or to secure a possible application to ECtHR.[44]

Where the Constitutional Court grants interim measures, it is up to the legal representative of the applicant to transmit the order to the PDMM so as to prevent the execution of the removal decision.[45] There have been cases where deportations took place due to the failure of lawyers to inform the PDMM of existing interim measures.

 


[1] Article 80(1)(e) LFIP.

[2] Article 54(2) LFIP, as amended by Article 36 Emergency Decree 676 of 29 October 2016. The provision cites Article 54(1)(b), (d) and (k) LFIP, the latter inserted by Emergency Decree 676.

[3]  Article 77 Regulation No 28578 on Conditions of Probation, 5 March 2013, as amended by Article 1 Regulation No 30631 of 20 December 2018.

[4] Izmir Bar Association, İzmir Geri Gönderme Merkezlerinde Adalete Erişim Hakkı Çerçevesinde Yaşanan Sorunlar Raporu, July 2017, available in Turkish at: http://bit.ly/2Dyc87X, 25.

[5]See e.g. Amnesty International, ‘Refugees at heightened risk of refoulement under Turkey’s state of emergency’, 22 September 2017, EUR 44/7157/2017. On the situation of persons coming from Central Asian countries, see HarekAct, ‘Central Asian migrants in Turkey at risk of being labelled as terrorists’, 23 November 2017, available at: http://bit.ly/2ytEIQJ.

[6] Information provided by a lawyer of the Izmir Bar Association, March 2019.

[7] Information provided by a lawyer of the Istanbul Bar Association, February 2019.

[8] HaberTurk, ‘Mısırlı idam mahkumu iade mi edildi?’, 6 February 2019, available in Turkish at: https://bit.ly/2xx5VqV.

[9] Information provided by a lawyer of the Antakya Bar Association, February 2019.

[10] Karar, ‘Risk analiz merkezi kapılarını KARAR'a açtı’, 28 April 2016, available in Turkish at: https://bit.ly/2GaDXEO.

[11]Information provided by a stakeholder, February 2018.

[12] Information provided by a stakeholder, February 2020; a lawyer of the Gaziantep Bar Association, February 2019.

[13] Information provided by a stakeholder, February 2019.

[14] For examples of decisions cancelling a “G87” code due to lack of evidence, see 1st Administrative Court of Ankara, Decision 2018/2207, 13 February 2019; Decision 2018/524, 14 March 2018.

[15]Information provided by a lawyer from the Izmir Bar Association, February 2020.

[16] See e.g. District of Ankara, Decision 2018/462, 7 September 2018, which overturned the 1st Administrative Court of Ankara Decision 2018/524 of 14 March 2018.

[17] Information provided by a lawyer of the Gaziantep Bar Association, February 2019; International Refugee Rights Association, February 2019; a lawyer of the Antakya Bar Association, March 2019.

[18] Constitutional Court, Decision 2019/1624, 16 January 2019.

[19] Information provided by a stakeholder in Izmir, February 2020.

[20] Mülteci-Der, Joint Assessment: Proposed Amendments in the Law on Foreigners and International Protection of Turkey, 4 December 2019, available in Turkish at: http://bit.ly/2IRYoVQ.

[21] District Court of Izmir, 6th Chamber, Decision 2017/1109, 15 September 2017. The court overturned the decision of the 1st Administrative Court of Izmir, which had deemed the appeal inadmissible due to the expiry of the 15-day deadline.

[22] Article 53 LFIP.

[23] Law No 7196 amending several acts, 6 December 2019, available in Turkish at: http://bit.ly/2TSm0zU.

[24] Article 53(3) LFIP. This time limit has been ruled to be in line with the Turkish Constitution: Constitutional Court, Decision 2016/135, 14 July 2016, available in Turkish at: http://bit.ly/2DQwB8m.

[25] Information provided by a lawyer from the Istanbul Bar Association, February 2020.

[26] Information provided by a lawyer from the Istanbul Bar Association, February 2020.

[27] Van 1st Administrative Court, Case number 2018/2558, decision number 2019/981, date 30 April 2019.

[28] Izmir 1st Instance Administrative Court, Case number 2019/692 2019/1331.

[29] Information provided by a lawyer from the Van Bar Association, February 2020.

[30]Not at a border crossing point as per Article 5(1) LFIP.

[31] Information provided by a lawyer from the Van Bar Association, February 2020.

[32] Information provided by stakeholders in Izmir in February 2020. For how voluntary return forms are signed, see also: Deportation Monitoring Aegean, ‘Surrendered to Harmandalı Removal Prison – How EU policies lead to expulsion and maltreatment of migrants deported to Turkey’, 4 June 2019, available at: https://bit.ly/3aeDHig; On conditions in the removal centre see Bianet English, ‘Harmandalı Removal Center Told from Inside: Battery, Attempted Suicide, Illness, Death’, 23 July 19, available at: https://bit.ly/3bmYOjM;

[33] Information provided by a lawyer from the Izmir Bar Association, March 2020.

[34] Antakya Administrative Court, Docket number 2019/1209.

[35] Decision of Hatay Governate PDMM to release 28 people from administrative decision because of diverse vulnerabilities eg women children. 27 December 2019, decision 3196 3003-000-E-48024.

[36] Information provided by a lawyer from the Antakya Bar Association, March 2020.

[37]Mülteci-Der, Joint Assessment: Proposed Amendments in the Law on Foreigners and International Protection of Turkey, 4 December 2019, available at: http://bit.ly/2IRYoVQ.

[38] Articles 45-51 Law No 6216 on the Formation and Procedures of the Constitutional Court.

[39] Constitutional Court, Rida Boudraa, Decision 2013/9673, 30 December 2013. See also Mülteci.net, ‘Anayasa Mahkemesi İlk “Geçici Tedbir” Kararını Verdi’, 24 February 2014, available in Turkish at: https://bit.ly/2pKkXSi.

[40] ECtHR, Sakkal and Fares v. Turkey, Application No. 52902/15, Judgment of 7 June 2016, para 64. Although the Court had granted a Rule 39 interim measure on 26 October 2015, it dismissed the application as inadmissible.

[41] Constitutional Court, Pilot Decision 2016/22418, 12 June 2018, available in Turkish at: https://bit.ly/2SaX5sn.

[42] Constitutional Court, Decision 2016/22418, 30 May 2019, available in Turkish at: https://bit.ly/2wHa3Eq.

[43] Law No 7196 amending several acts, 6 December 2019, in Turkish at: http://bit.ly/2TSm0zU.

[44] Information provided by a lawyer from the Istanbul Bar Association, February 2020.

[45]On the contrary, decisions of the Administrative Court are notified to the PDMM since they are party to the proceedings.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of main changes since the previous report update
  • Introduction to the asylum context in Turkey
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • Temporary Protection Regime
  • Content of Temporary Protection