This article is part of the blog series “Who, What, and How Much Does Temporary Protection Protect?” and edited by Ibrahim Soysüren. It builds on presentations from a workshop which had the same title and held on 9 December 2023 in Izmir and jointly organised by the NCCR On the Move, the Institute of Sociology of the University of Neuchâtel, and the Izmir Bar Association.
In this article, Taner Kılıç, examines the implementation of Turkey’s temporary protection regime, highlighting significant challenges, particularly in relation to revocation of temporary protection status and deportation. Moreover, it emphasizes the negative evolution of the legal framework and administrative practice in this regard.
Deportation and Withdrawal of Status on Public Policy Grounds Under the Temporary Protection Regime
Taner KILIÇ
There are many serious structural, legal and practical problems in the implementation of the temporary protection regime in Turkey. However, in our view, two of the most important problems are related to deportation and cancellation of temporary protection status, which are often carried out at the same time. Law No. 6458 on Foreigners and International Protection (LFIP), which was adopted on 4 April 2013 and substantive provisions of which came into force one year later, has continued to develop in a negative direction since its entry into force, due to the negative socio-political climate in the country. Worse than the negative development of the LFIP over time has been the negative use of the wide scope for initiative given to the Directorate General for Migration Management by the subsequent sub-legislative regulations.
The Regulation on the Implementation of the LFIP entered into force on 17 March 2016, following its publication in the Official Gazette No. 29656, after a considerable period of time. Article 60 of the Regulation is entitled “Foreigners Subject to Judicial Proceedings” and sets out the basic principles to be applied to foreigners who are the subject of a judicial or political investigation or prosecution file. Looking at this article, a rough assessment of the situation is as follows: Foreigners against whom judicial proceedings have been initiated and whose release has been ordered by the Public Prosecutor’s Office or the court are divided into those who have a legal right to stay in our country (holders of a residence permit under the LFIP at the time of their release) and those who do not have such right. For those falling within the first group, there is the obligation to release the person and inform the Directorate General for Migration Management, while for those in the latter group, the actual handing over of the person to the Directorate is required.
This was the practice in the early years. In our opinion, even the compatibility of this Regulation with Article 59 of the Turkish Penal Law (TPC) (Law No. 5237 of 26 September 2004) should be questioned: “A foreigner who is sentenced to imprisonment for a term of two years or more for an offence committed by him shall be deported immediately after the execution of his sentence”. In our opinion, it is more appropriate to ensure that the foreigner who is the subject of a criminal prosecution remains in the country until the end of the procedure and the execution of the sentence, in order to guarantee the effectiveness of the criminal procedure, access to justice, the fight against impunity, the possibility of proving his innocence and, in general, public order and security. In fact, it is known that many foreigners who were investigated or prosecuted during these years were later decided not to be prosecuted or were acquitted. Similarly, although it is important to ensure that the various penalties imposed on foreigners who commit crimes are enforced through fair trials, to combat impunity and maintain public order in the country, the LFIP Regulation poses a threat to this.
In the years that followed, the practice in this area, which should have remained a matter of law and human rights, became quite problematic as it came to the fore as a political issue. As a result, on 17 April 2019, the Directorate General for Migration Management of the Ministry of the Interior adopted a sub-regulation under the name of Implementation Instruction on Irregular Migrants, which in practice is referred to as Circular No. 2019/5 for short. Article 8 of this Circular is entitled “Foreigners who have been subject to judicial proceedings and have been released from detention”. This article stipulates that foreigners who have been the subject of judicial proceedings under criminal law and who have been released by the public prosecutor’s office or the court (sometimes within the framework of a judicial control measure), “unless a positive opinion is reported by the security and intelligence services”, shall in principle be handed over by the law enforcement authorities to the provincial branches of the Directorate General for Migration Management and the deportation procedure shall be carried out against them. The only exception is when the foreigner is subject to a judicial control order in the form of a “ban on leaving the country”. This provision of the Circular has made the situation we criticised in Article 60 of the LFIP Regulation even more tragic.
Although the Circular, as its name suggests, concerns “irregular migrants”, its implementation has not been limited to them. The practice consisting of rapidly revoking the status of foreigners with legal status, making them ‘irregular’ and subjecting them to deportation proceedings has developed. As can be seen, the hierarchical legal provisions apply to all ‘foreigners’ in the country and in principle do not differ according to the type of residence. However, the practice initially targeted mainly Syrians under temporary protection, both because they are the main subject of socio-political debates in the country and probably because of their large number. Some legal incidents involving Syrians that were reported in the media, and some of the statements made by policymakers about these incidents, automatically targeted Syrians.
Practice has developed surprisingly quickly, but in an increasingly unfavourable direction, as follows: In the years before the LFIP, Article 59 of the Turkish Penal Law was taken into account. After the LFIP and with the entry into force of the above-mentioned secondary legislation, the categories of serious crimes were first listed, and procedures were launched against Syrians accused of crimes or offences from the listed categories. This situation soon began to be used as a convenient legal justification for all types of crimes, including traffic offences that are not considered crimes but fall within the scope of ‘misdemeanours’ or traffic offences that require administrative fines, as well as the flexibility and ambiguity in the content of Article 54/1-d of the LFIP.
After the GÖÇ NET database, used by the Directorate General for Migration Management, was introduced and was linked to the UYAP database, used by the Ministry of Justice, old, outdated court files have started to appear like ghosts during the routine procedures of Syrians at the provincial branches of the Directorate General for Migration Management or at the Data Update Centres. The problem, however, is that the mere existence of these court files, regardless of their outcome, i.e. whether the foreigner was acquitted or convicted, is considered sufficient for the person to be considered a “threat to public order and security”. Deportation proceedings are then initiated in accordance with Article 54/1-d of the LFIP.
Irrespective of whether they are the subject of an investigation or a prosecution, the “codes”, which are mostly based on political considerations – and which, in practice, represent a security problem in our opinion – have suddenly led to many facing the prospect of getting deported. Whereas in the past these codes were found in the procedures launched by the Directorate General for Migration Management, now they are used in the identity checks by the police or in the mobile inspection centres. The practice is not to wait for these people who deal with the Directorate General for Migration Management or law enforcement, but to start detaining them after they are arrested at their homes. Another new evil, which cannot be explained by any legislation, is the inclusion of the family members (parents, siblings, spouses and children, whether they live together or not) of the person against whom judicial proceedings have been initiated or after the codes have been introduced about them without any judicial proceedings. It is becoming increasingly common for family members to be subjected to removal procedure in a way or other.
Although usually deportation orders and decisions to cancel temporary admission status are taken together, these decisions are not notified to the persons concerned and mostly remain only in the GÖÇ NET database. Even if deportation decisions are subsequently overturned, temporary protection statuses are not activated and for this, a separate administrative and judicial procedure is expected to be introduced.
Taner Kılıç is a lawyer at the Izmir Bar Association.
