Turkey as a Safe Third Country? (Border Criminologies Blog univ. Oxford)‏

Turkey as a Safe Third Country?
by Orcun Ulusoy, Turkish human rights lawyer and co-founder Multeci-Der

Guest post by Orçun Ulusoy, a human rights lawyer from Turkey and a
founding member of Multeci-Der. He currently works as a researcher with
Vrije Universiteit Amsterdam as part of the Human Costs of Border
Control project. Orçun is on Twitter @orcunu.

The EU-Turkey Joint Action Plan has caused a heated debate on the
humanitarian crisis that is currently taking place at the borders of EU.
The Plan includes the readmission of irregular migrants to Turkey. The
EU Asylum Procedures Directive requires that a person can only be
readmitted to a ‘safe third country’ which can guarantee effective
access to protection. According to the Plan, Turkey can be regarded as a
safe third country. This may not be the case.

Recent events in Askale―a small remote town in the east of Turkey, which
also hosts a deportation centre for irregular migrants―illustrate why
regarding Turkey as a safe third country is, to say the least,
questionable. Here, local lawyers have started to report unlawful
practices of the staff working in the centre, such as access to clients
being arbitrarily blocked, clients’ asylum applications being denied
without proper examination, minors being kept in isolated cells without
access to family members, and possible cases of ill treatment and torture.

Lawyers from the west of Turkey and NGO representatives confirmed that
they’ve received similar complaints from their clients. On 28 December
2015, the migrants in Askale Removal Centre started to protest the
conditions of the centre and illegal deportations. The roads to the
centre were blocked by the police, members of the media and lawyers were
forced to leave the area, and the riot police entered the removal
centre. Many migrants were reportedly severely beaten during the police
intervention and were taken to the hospital. On the first day of 2016,
11 national NGOs, including Amnesty International, Multeci-Der, and the
Turkish Human Rights Association released a public statement summarising
the above mentioned accusations and protesting the unlawful treatment of
migrants in Askale.

The Law on Foreigners and International Protection (LFIP) was adopted in
2013 by the Turkish Parliament and came into power in April 2014. It
grants all basic human rights to migrants, asylum seekers, and refugees
in line with EU legislation: access to legal counselling and a lawyer,
prohibition of torture and ill treatment, extended protection, rights
for minors, and so on. The LFIP was drafted by governmental officials in
close cooperation and collaboration with NGOs, academics, and related
experts in the field. This was already an unconventional practice within
Turkish legislative history. The drafting committee of the LFIP
extensively studied contemporary examples of the EU and took European
Court of Human Rights decisions into consideration during its drafting.
International organisations such as the UNHCR and IOM provided expertise
and support during this period. When the LFIP was approved by the
Turkish Parliament, it received the support of all political parties
represented.

Yet, the administration of the Askale Removal Centre appears not to be
obeying the rules of the LFIP. The lawyers and NGOs lodged four
different official complaints about the practices of the executives of
the centre as well as requested official investigations from the
governmental Turkish Human Rights Institution and Human Rights
Commission of the Turkish Parliament. Unfortunately a well drafted law
hasn’t provided nor guaranteed basic rights for migrants, asylum
seekers, and refugees in Turkey.

The EU-Turkey Joint Action Plan assumes that since there is a law to
guarantee the rights of migrants, asylum seekers, and refugees, Turkey
should be regarded as a safe third country and asks Turkey to ensure
access to effective asylum procedures for all persons in need of
international protection. However, migrants in Askale Removal Centre
have a very different idea and experience of this ‘safe country’ and its
‘effective asylum procedures.’

There are several reasons for this failure and a closer look into these
reasons may show why Turkey is not a safe country for migrants, asylum
seekers, and refugees and will not, at least in the near future, provide
sustainable and durable shelter for the people fleeing from their
countries to save their lives.

First, the newly established Directorate General of Migration Management
(DGMM) lacks capacity and experience. The Law on Foreigners and
International Protection foresaw the establishment of a new civil body
to replace the foreigners’ police department which was responsible for
all migration and asylum related issues. The DGMM was established right
after the approval of the LFIP in 2013. Only two years after the
establishment, the DGMM opened local offices in more than 100 cities or
towns and hired 3,000 personnel. Almost all of the new personnel have no
prior experience or related background in migration and asylum and lack
capacity to fully implement the new status determination procedure
provided by the LFIP. The only experienced staff were former police
officers who were transferred from the foreigners’ police departments.

Second, the Syrian Refugee influx created pressure on the newly
established system. During the drafting period of the LFIP, there was no
indication of a refugee influx to Turkey. Until the first half of the
2013, the total number of the Syrian refugees in Turkey was less than
150,000. However, the unprecedented rise of violence in the Syrian civil
war forced millions to leave their homes and, as of March 2016, more
than two and a half million Syrian refugees were living Turkey according
to the UNHCR database. While the Prime Ministry’s Disaster and Emergency
Management Authority (AFAD) is the responsible coordinating body for
humanitarian needs of Syrians in Turkey since the onset of the crisis,
the DGMM plays a vital role for policy and strategy development and
implementation. For a newly established and inexperienced system, these
unexpected numbers are paralyzing.

Third, there is not enough juridical capacity. The LFIP is the first
ever law on asylum and international protection since the establishment
of the Turkish Republic. Prior to its enactment, the field was regulated
by directives and decrees. Asylum applications as well as related
procedural operations were carried out by the foreigners’ department of
the national police together with the UNHCR (in the so-called ‘parallel
procedure’). Juridical reviews of these cases were done by the
administrative courts only to test the compliance of the proceedings
according to the administrative rules. The substances or arguments of
these cases and procedures were rarely questioned which limited the case
law on migration and asylum in Turkey. Furthermore, migration and asylum
law was never taught in Turkish law faculties and the field has limited
academic expertise. Since the law was approved by the Turkish
Parliament, judges, lawyers, and other legal professionals are receiving
training. However, knowledge and experience are still partial and
support services such as translation are inadequate, if not absent at all.

Fourth, a retroactive migration management tradition and security based
approach to migration in Turkey is still dominant. As mentioned above,
the first law on asylum was adopted only in 2013. The field was left to
administrative bodies and national police until then. These bodies,
focusing on the national security policies, regulated the asylum and
migration issues according to the present needs. Long term strategic
planning was absent until the establishment of the DGMM. Since the start
of the Syrian refugee influx to Turkey, basic rights to Syrian refugees
were granted after long hesitation periods. The Temporary Protection
Regime was declared only in 2014 after previously naming the Syrian
refugees as ‘guests’―a term which has no legal definition or meaning in
international asylum law―for more than two years. Non-Syrian refugees in
Turkey such as Afghans, Iraqis, and Iranians still experience
difficulties in accessing basic healthcare, education, and employment.
While the new law grants these rights, contradicting regulations and a
lack of information and willingness limits these groups’ access to their
rights. As seen in the Askale Removal Centre case (the centre is under
the supervision of the DGMM), local officers may act against the clear
rules of the law.

It’s true that Turkey has a new asylum law but the Turkish asylum and
migration system is still in its infancy. Inexperienced, under-equipped,
under-trained, and under the wrong influences, this system is far away
from providing a safe haven for migrants and refugees. Today, it’s only
creating a legal limbo where migrants and asylum seekers are waiting
without seeing their futures.

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