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, Doğa Elçin provides a brief overview of Turkish court rulings on issues related to Syrians in Turkey, with a particular focus on deportation. The lack of harmonisation in this area underlines the inherent uncertainty and unpredictability.
Syrians and courts in Turkey: Lack of harmonisation and consequences
Doga Elçin
According to the current Turkish legal framework, foreigners have the right to administrative remedies regarding their entry, stay and travel within the country. Moreover, lawsuits can be filed against decisions of the Presidency for Migration Management. On the other hand, lawsuits against deportation orders may be lodged with the Administrative Court within a period of seven days from the date of notification (Article 53/3 of the Law on Foreigners and International Protection, LFIP). The court’s decision on the deportation order, taken within 15 days, is final and there is no right of appeal. In addition, once ordinary remedies are exhausted, the only remaining legal recourse is to apply to the Constitutional Court on the grounds of violation of fundamental rights and freedoms guaranteed by the Constitution or by the European Convention on Human Rights. In this regard, it is important to point out that the right to family life, personal freedom and security and the right to life are guaranteed.
This study discusses the legal status of Syrians under temporary protection from 2011 to the present in light of Turkish judicial decisions especially their deportation. They clearly show that the application of temporary protection status is not uniform.
According to the LFIP and the Temporary Protection Regulation (published in the Official Gazette No: 29153, 22/10/2014), forcibly displaced persons from Syria can only apply for temporary protection in Turkey. They have no access to other forms of international protection. However, there are obviously Syrians with different statuses, and they may also face some problems regarding their stay in Turkey. For example, in the case of a Syrian citizen entered Turkey on a visa with a residence restriction, the administration has placed a restriction on him with the code V-84, and he was banned from leaving the country while he was on trial as a defendant in a criminal case. Although this travel ban was temporarily lifted and he was subject to an exit ban, he was not considered to be a resident when he left Turkey as it was established that he had breached his visa obligations. The court ruled that a Syrian citizen who comes to the border spontaneously to leave the country before a deportation order has been issued cannot be refused entry. The court based its decision on the provisions of Article 7 of the LFIP, entitled “Aliens who are refused entry to Turkey”; Article 15, entitled “Aliens who are refused a visa”; Article 54, entitled “Persons who are the subject of a deportation decision”; and Article 10, entitled “Notification of the ban on entry to Turkey”. The court concluded that the entry ban imposed on the plaintiff without a deportation order was not in accordance with the law and legislation (Decision of the Istanbul 1st Administrative Court, 12.01.2017, 2016/2500 E., 2017/1156 K.). The ruling also highlights the fact that not all Syrians in Turkey are automatically considered under the temporary protection regime, even though only Syrians can benefit from this regime.
On the other hand, there have been cases where the courts have ruled against the deportation of some Syrians. For example, a Syrian national was ordered to leave the country because she was working as a hostess without a work permit and was suffering from an infectious disease. However, it was ruled that the applicant had no security of life and property due to the civil war in Syria and therefore it was not possible for her to return to this country as she would be exposed to death, torture and degrading punishment or treatment by some groups. (Decision of Istanbul 1st Administrative Court, 31.05, 2015/2424 E., 2016/1281 K.)
Some administrative court decisions show that the voluntary return mechanism is sometimes used as a disguised deportation. For example, in one case, the claim relates to the violation of the right to life, the prohibition of ill-treatment, the right to an effective remedy and the right to personal liberty and security because of being placed under administrative detention during deportation by being forced to sign a voluntary return form without his consent. Based on a deportation order, the applicant was placed under administrative detention and forced to sign a voluntary return form. He was deported from the Cilvegözü land border gate on 18 July 2019. Prior to his deportation, the applicant was taken to the police station for the offence of causing intentional injury in a fight in which he was involved. Although this was the basis for his deportation, the charges against him were later dropped. In other words, there was no further investigation or prosecution against him and his presence in Turkey did not cause any harm to public order and security.
Therefore, the Constitutional Court ruled on the basis of Article 54/1-d of the LFIP and found that the voluntary return form did not contain any information on the applicant’s situation in Syria. In addition, the possible risks related to the revocation of its temporary protection were not explained. On the other hand, his lawyer was not informed when the form was signed, and no United Nations High Commissioner for Refugees or a national non-governmental organisation representative was present during the signing. Therefore, the prohibition of ill-treatment and the right to an effective remedy had been violated under Article 17 of the Constitution according to the Court. (Abdulkerim Hammud Application of the Constitutional Court, 02.05.2023, No. 2019/24388)
Finally, it is important to note that the lack of uniformity in the application of temporary protection status and court rulings creates uncertainty and unpredictability for Syrians in Türkiye. This is even more evident when it comes to deportation orders, as it is not possible to appeal against an administrative court decision. In this case, the only remedy is applying to the Constitutional Court. However, this is only possible in some cases. This uncertainty hinders the effective exercise of the freedom to seek justice and the right of access to justice. Although there has been an increase in the return of Syrians to their home country, this does not change the problem of uncertainty and unpredictability arising from court decisions.
Doğa Elçin is an associate professor at the Bozok University
* The ideas and opinions expressed in GAR Blog publications are those of the authors; they do not reflect those of the Association for Migration Research.
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