According to Article 66 LFIP, from the moment an unaccompanied child international protection applicant is identified, the best interests of the child principle must be observed and the relevant provisions of Türkiye’s Child Protection Law[1] must be implemented. The child applicant must be referred to an appropriate accommodation facility under the authority of the Ministry of Family and Social Services. There is still no information on the number of unaccompanied children in Türkiye and a tendency for them not to be taken into the care of state institutions despite the recent amendment.
According to the Turkish Civil Code, all children placed under state care must be assigned a guardian.[2] Specifically, all children who do not benefit from the custody of parents (velayet) must be provided guardianship (vesayet).[3] The assignment of guardians is carried out by Peace Courts of Civil Jurisdiction (Sulh Hukuk Mahkemesi) and guardianship matters are thereafter overseen by Civil Courts of General Jurisdiction (Asliye Hukuk Mahkemesi). A guardian under the Turkish Civil Code should be “an adult competent to fulfil the requirements of the task”, not engaged in an “immoral lifestyle” or have “significant conflict of interest or hostility with the child in question”. Relatives are to be given priority to be appointed as guardians.[4] Therefore, as far as the legal requirements, qualified NGO staff, UNHCR staff or Ministry of Family and Social Services staff would qualify to be appointed as guardians for unaccompanied minor asylum seekers.
Guardians are responsible for protecting the personal and material interests of the minors in their responsibility and to represent their interests in legal proceedings.[5] Although not specifically listed in the provisions, asylum procedures would fall within the mandate of the guardians. As a rule, a guardian is appointed for 2 years, and may be reappointed for additional two terms.[6]
The majority of unaccompanied minors seeking international protection in Türkiye are from Afghanistan. After eight years and 25 hearings, the verdict in the criminal case against police personnel in the case of Lütfillah Tacik, an unaccompanied Afghan child, was ultimately issued in early 2022. One of the police officers was found not guilty of negligence. The other police officer was sentenced to five months in prison on the ground of having caused superficial injuries.[7]
A study[8] grouped the challenges in the legal representation and protection of asylum-seeking unaccompanied children in practice as “(1) disorganization, deficiencies and contradictions in the legislation, (2) difficulty in accessing legal services, (3) ignoring the need for children to be represented as independent individuals within the justice system, and (4) lack of legal expertise for asylum-seeking unaccompanied children”. Both lack of sufficient legal expertise in the field and lack of information shared with the unaccompanied children regarding their rights and the procedures hinders the protection of unaccompanied minors.
It is also reported that although unaccompanied minors have access to legal assistance and representation, other challenges arise. These include a lack of interpreters, insufficient funds, and difficulties reaching legal aid services from removal centres, which are often far from city centres. Common problems include finding lawyers willing to visit removal centres and the overall quality of legal support. While there have been advancements in the specialisation of lawyers in refugee law, the specific competence for assisting unaccompanied asylum-seeking children remains inadequate[9].
[1] Law No 4395 on Child Protection.
[2] Law No 4721 on the Civil Code.
[3] Article 404 Civil Code.
[4] Articles 413, 414, 418 Civil Code.
[5] Articles 445-448 Civil Code.
[6] Article 456 Civil Code.
[7] Bianet, ‘5-month prison sentence over refugee child Lütfillah’s death with a police fist’, 17 February 2022, available here.
[8] Süleyman Dost ve Nedime Sevde Gökez, ‘Sığınmacı Refakatsiz Çocukların Korunması ve Hukuki Temsili’ (2024) 14(1) Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi 421, 463.
[9] Mülteci Hakları Merkezi, Türkiye’deki Refakatsiz Sığınmacı Çocukların Hukuksal Korumaya Erişimi: Tespitler ve Değerlendirmeler, September 2022, available here.