IMMIGRATION IN THE LEGAL TRADITION OF TURKEY

 

 

Aneliya Atipova
Doctoral student at G. S. Rakovski National Defence College



Geography is a stable parameter of power,
which is combined with politics
Ahmet Davuoglu, “The strategic depth”

 

Abstract: This article provides an analytical overview of Turkey’s migration legislation, focusing on the period between the two European immigration crises – 2013-2015. The Turkish authorities’ ability to present in an “European-acceptable” manner one restrictive and monitoring migration policy, which fully serves the Turkish national interest, is highlighted in the forefront.

Key words: turkey’s migration legislation, european immigration crises, national interest.

 

 

Situated between the militant Orient and tolerant Europe, Turkey is a “two-world” country, linked by the bloody thread of people, fleeing war. Meanwhile, they are bearers of identities, that are irreconcilable with one another. The ambitions of Ankara to play an important role in “building a stable Middle East” inevitably faces it with the opposite effect of the strategic shift – “energy, economic and human mobility”1.

In the period between the two European “human” crises – the refugee one, from 2013 and the immigration one, from 2015, the country is a humanitarian mediator, a political reviser, a wise lawmaker and a balancer between the East and the West.

The only unacceptable compromise for it, appears to be the compromise with its own national interest, cleverly spread and managed throughout the territory – from Van to the Aegean Sea and from Gaziantep to Edirne.This is justified by the doctrine of the Turkish Prime (and Foreign) minister Ahmet Davutoglu for a “strategic depth”, which proclaims maximum regional engagement and “zero problems with the neighbors.”

It is no coincidence that the Turkish immigration policy is most prominent in the 2013-2015 time frame, when, under the pressure by the EU and under the condition of a relaxed visa policy for Turkish citizens in the Union, a “helpful” regulatory framework for controlling the migration processes was developed.

The first important document, dealing with migration issues, is the Constitution2 of the country. It regulates the status of foreigners, by introducing for the first time the most important instrument for successful control – territorial restrictions (Part 5).

According to Article 16, “the fundamental rights and freedoms of foreigners may be limited by law”, including the place (Article 21) and the freedom of residence (Article 23), if only this does not contradict the provisions of international law. According to Articles 57 and 60, everyone has the right to “housing and social security”. The contoured thin line between “guaranteed rights” and “unguaranteed cooperation” and the strong restrictive character of the measures, help to give a democratic image to a largely nationally oriented migration management policy.This is also evident in the later legislation.

In 1994 is adopted Regulation No. 1994/61693 on procedures and principles, related to the possible movements and arrivals of aliens, either singly or in groups, who have come to the country to apply for asylum or a residence permit in Turkey, for the purpose of applying for asylum in another country. It concerns the procedures, the principles (Article 1) and the measures to be taken against such persons (Article 2). The fact, that the regulation puts an accent on the movement of this foreign segment, makes it unique in the European legal tradition, where freedom of movement is presumably addressed to other acts of a more general nature.This highlights the importance of the mobility of persons, seeking protection for the national security of the country.

In view of the territorial restrictions, regarding the 1951 Geneva Convention and the 1967 Protocol for the Status of Refugees, to the common accepted definition of “refugee”, is added the expression: “a foreigner, who, as a result of events occurring in Europe and due to a legitimate fear of persecution, for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside his or her country of origin and residence” (Article 3). Persons, originating from non-European countries, have the so-called status of “temporary guests”. The term “temporary” by itself implies the transit nature of the “presence” of this immigration contingent.

According to the provisions of the Regulation, the asylum seekers are identified, interviewed and accommodated in a reception center or a guest house or are assigned a “place to live freely”, at the discretion of the Ministry of Interior (Article 5). On the one hand, the mentioned measure, which confines the movement of foreign nationals, who have applied for protection status, differs from the administrative detention and preserves basic human rights of the applicants. On the other hand, the territorial scope of admission of such persons is limited to the minimum required, with a view to their integration and sufficient employment, which entails minimal risks to the national security and the public order. Turkey also ensures by this document its right to take measures to restrict the movement of persons across borders, in case this endangers its national interests (Article 8).

There is the practice once the persons are interviewed, to be sent to immigration gathering areas, located near the borders (Article 12). Refugees and asylum-seekers “who wish to temporarily leave the camps, must obtain permission from a competent civil servant” (Article 15).

Interesting is the fact, that among the standard questions of origin, age, nationality, religion, etc., there is the question of the existence of relatives “in Turkey or abroad” and the provision of their names and addresses. This information could be valuable in predicting the likely destination, chosen by a person, which is about to leave Turkey, as well as in assessing the likelihood of his integration on the territory of the country.

Despite the principle of non-refoulement and the ban on returning to a risky country, a refugee or asylum seeker, lawfully residing in Turkey, can be deported for reasons of national security (Article 29). This gives wide discretion to the responsible institutions to deal with the immigration, making it a convenient tool for achieving political aims.

The provisions, examined in the regulation, deal with questions of the pre-integration stage of persons, who have received a form of protection in Turkey. They concern border control, checking, allocation, screening and accommodation of asylum seekers, as well as their deportation, in case of need.

The Turkish authorities are aware of the essence of migration management and the importance of freedom of movement, to prevent the concentration of a critical mass of asylum-seekers. This is a fundamental condition for managing the whole process of immigration, from the boundaries of entry and exit, to its manifestations within the country.

In 2003 is adopted Law No. 48174 on work permits for foreigners, which further develops the legislative framework, regulating the integration of non-residents. Its purpose is to control the work activity of foreigners in Turkey, through a system of measures for the issuance of work permits (Article 1).

According to Article 8, a permanent work permit is issued to “accepted emigrants, refugees or nomads” (sub-item D). Practically, the conditionality of a work permit per se includes a restriction on freedom of movement, residence and job selection. This imposes some stagnation in the integration process and makes the alien an accessible monitoring and control object. Even permanent work permit is conditional, as it is a subject to a residence permit, whose term cannot be exceeded and which is regulated by other legal acts.

Territorial and professional restrictions are a kind of protectionist measure, adopted to maintain the balance of economic development in the Turkish provinces and to avoid oversaturation in the labor market. From this point of view, they perform a regulatory function in terms of the natural selection of markets niche and the integration of foreigners.

The law on foreigners and international protection5, adopted in 2014, is the most comprehensive legal act, and the most recent in the Turkish legislation, governing migration management. The purpose of this law is to regulate the principles and procedures for the entry, stay and exit of foreigners in Turkey and the scope and nature of the aid to be afforded to persons, seeking protection (Article 1). Although some of the provisions are borrowed from the international law and do not differ from the European rules on migration management, the national interests prevail over the supranational commitments.

According to Article 5, entry into the country shall take place at border crossing points with a valid travel document. The regulation of the stay of foreigners is stricter and more detailed than that, governing the entry and exit of the country. Foreigners, who are planning to stay in Turkey for a period, exceeding 9 months, should obtain a residence permit (Article 19, par. 1). They may take advantage of it within 6 months of its issue, otherwise it becomes invalid. The dual limitation also affects refugees and holders of subsidiary and temporary protection, who have no right to replace the type of residence permit for a long-term one (Paragraph 2). Thus, at first sight legally provided rights, could act with a strong element of limitation and a high level of conditionality.

The law introduces for the first time the humanitarian status, issued to persons, who cannot be removed from Turkey, despite an available order (Article 46, paragraph 1). This is the most fragile status, as the rights of its holders move along the dividing line between the possibility of residence and the lack of adequate support. Many candidates, who have been unable to take care of themselves, because of labor law, fall under the restrictions of another article. In this sense, if it is proven that the person earns his livelihood in an illegitimate manner, he would become a subject to removal from the country (Article 54). “Illegitimate” should be understood not only as criminal activity, but also as work in a sphere, unauthorized or unspecified for the holders of protection.

Article 57 regulates the administrative detention of aliens, subject to deportation. According to its provisions, the duration of administrative detention at closed centers cannot exceed 6 months (para 3), with a possible extension for another 6 months, in exceptional cases.

As can be seen, the most eloquent measures to restrict the presence of non-residents – administrative detention and deportation – have very conditional and flexible for implementation terms, while the operational autonomy of the responsible authorities is huge.

Part Three of the act regulates the international protection of foreign citizens.

According to Article 62, persons, put in a situation of fear of persecution and forced to leave their country of origin or residence, but coming from non-European countries, are called “conditional refugees”. Conditional refugees are allowed to temporarily settle in Turkey, until they are transferred to third countries. This prevents the preserving of refugees, whose acceptance is uneven with the potential to be integrated in the country. Such persons may not be detained, except to clarify their identity, and the term for administrative detention of applicants for international protection may not exceed 30 days (para 5). This means that the freedom of movement of conditional refugees, who are not returned and not residents within the province, chosen for that purpose, is limited for short and practically poorly regulated. For a foreigner, threatened with deportation, in case that he does not declare his presence, within a required interval of time, it is important to leave the country to his final destination as soon as possible.

The period of registration, exceeding the administrative detention period, is the most frequent logical interval of time secondary movements to Europe to be undertaken. This is confirmed by the large immigration flow of more than 700,000 people, who crossed into Europe in October, after entering Turkey during the summer. Despite the dynamics of the figures, there is a clear transit period of 2 to 3 months, for accumulation of migratory masses and their release to Europe, which coincides with the periods, laid down in the Turkish legislation.

Article 71 governs the interesting point of the residence and the reporting of persons, seeking international protection. According to its provisions, the responsible institutions may impose requirements on applicants, such as “staying at designated reception and accommodation centers”, living in a particular area or zone, or “reporting to the authorities in the prescribed order and at specified intervals of time” (Paragraph 1).

This gives a clear idea of the internal dynamics of migratory masses and the possibility of answering of questions like: What is the nationality of the accommodated refugees? How many of them do not declare presence and have already left or are about to leave the country? Depending on the provided data, concerning the applicants’ relatives outside Turkey (in accordance with the Law on the Movement of Protected Persons), it is possible to be predicted where they are going. This information, on the other hand, would shed light on the choice of a linear route on their way to Europe.

Another circumstance, facilitating the secondary movements, is that the document, which authorizes the stay of an applicant for a status of protection, lasts for 6 months. This fact extends the person’s free stay, so he could be involved in the two active quarters from May to October, no matter in which part of the year he entered in Turkey.

Conditional refugees and the holders of temporary protection, are the most vulnerable secondary movement groups, with the greatest freedom of movement, whose legal relocation usually takes a long time and acts on the principle of restrictive selection.

Syrians receive a residence document within the country, valid for 1 year, under the provisions on temporary protection. This time limitation cannot be extended, as opposed to the refugee status, which is extended under the same circumstances in the country of origin, according the provisions of the Geneva Convention. In addition, a person, who has been granted conditional refugee status, cannot apply for another type of protection, after it expires, while a temporary protection holder can apply for refugee status after the end, and his application will be dealt separately. However, the Syrians, which are the largest contingent on Turkish territory, cannot be granted refugee status, but only conditional refugee, because they are not European citizens.

This legal paradox leads to the systematic and periodic generation of conditional refugees, whose access to the labor market and social support is severely restricted, as a candidate for protection or conditional refugee has the right to work 6 months after his registration (Paragraph 4, A) and should provide a residence by himself (Article 95, (1)).

The complex regulatory mosaic results in the practical acceptance of a large number of applicants for protection, coming from countries in which they cannot return within just one year, and forces them to leave Turkey after this year passes, without the right to prolong their stay, because they belong to the category of conditional refugees or temporary protected persons. The fact, that the law combines the legal regulation of the refugee status and the status of foreigners in the state, is in some sense restrictive, with regard to the asylum seekers.

The case of aliens is further developed in the Regulation on work permit of international protection applicants and international protection status holders6, adopted in 2016. The document regulates “the procedures and principles, related to the work permit of foreigners, who are considered as candidates, refugees, conditional refugees, holders of subsidiary protection status, under Law No 6458 on foreigners and international protection of 4/4/2013” Article 1 (1)). According to its provisions, persons, applying for protection and holders of conditional refugee status, may apply for a work permit only if there is a document, certifying their status in the country (Article 6 (1)), but not earlier from 6 months after filing an application for protection (para 3).

As the refugee status applicants and the conditional holders are required to reside in a particular province, they should be authorized to work elsewhere, only at the discretion of the Ministry of Interior (paragraph 4). In addition, the Ministry of Interior may impose restrictions on the “type of permit, duration, occupation, sector, work line, administrative and geographical area” (Article 18), that are not imposed on recognized refugees and holders of subsidiary protection.

The document is extremely important for the European security, because refugees, coming from Syria, fall under its provisions.

According to Provisional Article 1, “Citizens of the Syrian Arab Republic, stateless persons and refugees*, as part of a mass influx or separately, for temporary protection purposes and for reasons, occured in the Syrian Arab Republic on 28 April 2011, should be covered by temporary protection measures, even if they have applied for international protection.” The provision also adds that “individual applications for international protection are not processed during the implementation of temporary protection”.

It appears, that Turkey treats Syrian refugees in a rather flexible and non-integrative way, presumably turning them into “secondary refugees”. On the one hand, they are obliged to ensure their stay in the country in places, other than the accommodation centers, due to resource deficit. On the other hand, those, who left the country, are a subject to a ban on entry.

After the conclusion of the agreement with the EU, according to which the applicants, escaped to Greece, shall be returned to Turkey, this effect was expected to be mitigated. Nevertheless, a small number of people were effectively returned. Their positioning in a camp near Kirkaleri (Lozengrad), although of a closed type (former refugee center of the war in Yugoslavia), in the immediate vicinity of Bulgaria, not only facilitates their secondary transition, but also presupposes their route – through the Bulgarian border.

A regulation on implementing the law on foreigners and international protection7, was adopted in 2016. According to it, if a person, who wished to enter Turkey or to apply for protection status in the country, does not qualify for admission to Turkish territory, he shall be considered an “inadmissible traveler” (Article 7 (1)). Such a person may be returned to a transit country, country of origin or third country (Article 51, paragraph 1), taking into account whether this country would have accepted the person (Paragraph 2).

As long as the preparation for deportation continues, the person may be detained.

The administrative detention shall be carried out on a monthly basis (Article 61 (1)) and shall not be longer than 6 months (paragraph 2, point A).

If the protection status is granted, the person must stay in the residence province, chosen by the authorities. Otherwise, his application shall be considered as withdrawn (Paragraph 2).

Three levels of retention, based in the Turkish law, are observed – administrative detention, restriction of freedom of movement and border retention. They have a wise restrictive and guiding function, which not only promotes leaving, but also imposes the immigration rhythm of release and the choice a linear route . This managerial skill transforms Turkey into a multilevel catalyst for the generation and release of migration masses and risks, preceded by its legislative and administrative conditionality. And by that – in a dualistic segment of the balance between partnership and permanent insecurity for Europe, as well.

From the analysis, we can conclude that Turkey has built up regulatory preconditions, that, combined with geographical and cultural circumstances, make it the largest transit point, which brings together immigrants from different conflict zones in the Middle East and North Africa. Turkey’s relations with its neighbors, which generate (illegal) immigrants – Syria, Iraq, Iran – are viewed entirely through the prism of energy regional interests, political Islam and the Kurdish issue.

Migration management before and after 2013, is built on the balance between free access and selective control and aims at targeting immigration flows and modulation of external politics, with respect to the European Union.

Prior to this conditional timeshed, the legislation strives hard to preserve Turkey’s European “essence”, by accepting refugees from Europe only.

After 2013, in Ankara’s intentions resonates the desire to place the equality of Turks and Europeans, on the non-European “refugee” base, by becoming the main regulatory factor of the processes.

If we have to draw on the thesis of the Turkish Prime Minister and Minister of Foreign Affairs, Ahmed Davutoglu, that “geography is a stable parameter of power”, which continues with politics, we will see the motives for this effective migration management, imposed as a political influence’s and regional leadership’s modulator of Turkey. To the East is the inhospitable to refugees Iran, whose policy of “border fences” and “social exclusion”, leaves thousands of Afghan children without access to education, and their families – without the right to property, freedom of movement, chance of integration and dignified life. To the South are Iraq and Syria, involved in bloody conflicts, for which citizens, the Turkish border is the only safe alternative. To the West is the “bared” by sea Europe, synonymous of progress and social benefits for all Middle Eastern peoples. Turkey appears to be a “geography of opposites”, that inevitably lead a conflict.

The main instrument of (non)security in the hands of the Turkish leaders, is the dissonance between the country’s liberal visa policy, which has transformed it into an “Islamic Schengen area”8 and the “conditional” refugee admission, which puts the asylum-seekers in the awkward position of “temporary guests” and promotes their replacement to West countries.

It depends completely on the Turkish national interest, which of these two mechanisms to be used and if Europe to be “punished” or “rewarded”.

For this reason, knowing the Turkish legal base for migration management, is critical to gain a clear picture of the future development of the processes and turning the EU into a more secure place.

The balance between the normative minimum

* It is likely that the Palestinian refugees, accommodated in camps in Syria, mainly near Damascus, which form a part of the refugee flow to Turkey, are meant.

1 Getting to zero:Turkey, its neighbours and the West, Joshua Walker, Transatlantic Academy, 2010, p. 12. Available from: http://www.transatlanticacademy.org/sites/default/files/publications/GettingtoZeroFINAL.pdf

2 Constitution of the Republic of Turkey.

3 Regulation No. 1994/6169 on the Procedures and Principles related to Possible Population Movements and Aliens Arriving in Turkey either as Individuals or in Groups Wishing to Seek Asylum either from Turkey or Requesting Residence Permission in order to Seek Asylum From Another Country.

4 Law No. 4817 on the work permit for foreigners, Date of enactment: 27.02.2003.

5 Law on foreigners and international protection, Directorate general of migration management, Ministry of interior of the Republic of Turkey, April 2014.

6 Regulation on work permit of international protection applicants and international protection status holders, Ministry of Labor and Social Security, Official Journal Number: 29695.

7 Regulation on implementing the law on foreigners and international protection, Ministry of Interior of Turkey, Official Journal Number : 29656, 17 March 2016.

8 The illegal immigration industry in Greece in 2015:a strategic overview, Ioannis Michaletos and Chris Deliso. Available from: http://www.balkanalysis.com/greece/2015/03/25/the-illegal-immigration-industry-in-greece-in-2015-a-strategic-overview/

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