Blog post by Ayşe Dicle Ergin (assistant professor at Bilkent University, Faculty of Law) and Yiğit Kader (consultant in the area of asylum and migration and a lecturer at Başkent University, Faculty of Law).
The refugee definition under the 1951 Convention Relating to the Status of Refugees (the 1951 Convention) was limited by terms of both geography and time. Article 1(B) of the 1951 Convention allowed the signatory parties the possibility of accepting “events occurring before 1 January 1951” as referring to either “events occurring in Europe before 1 January 1951” or “to events occurring anywhere in the world before 1 January 1951”. States which chose the first option could later expand their understanding to cover all countries in the world, but not vice-versa. At the time of the signing of the Convention in 1951, Turkey declared that it accepted the refugee definition to mean the first option.
Later, the 1967 Protocol Relating to the Status of Refugees lifted the temporal limitation on the refugee definition via Article 1(2). However, as per Article 1(3) of the 1967 Protocol, states which had declared that they would limit the 1951 Convention refugee definition to those who became refugees due to events occurring in Europe (the European refugees) were allowed to maintain their geographical limitation. Consequently, although being one of the initial drafters of and party to the 1951 Convention, Turkey keeps its geographical limitation while hosting the largest refugee population in the world.
Turkey’s geographical limitation to the 1951 Convention has historically been one of the most significant factors in shaping the framework and scope of the Turkish national asylum system. Currently it constitutes the basis for the division between “refugee” and “conditional refugee” protection statuses in the national legal framework, while in the past the limitation created a major barrier in processing of asylum applications of those who fled due to events occurring outside Europe (non-European refugees). These individuals could only benefit from a temporary form of protection with significant barriers in accessing rights and services in Turkey in the absence of a comprehensive legal framework until the asylum reform in 2013. With the adoption at that time of the Law no. 6458 on Foreigners and International Protection (LFIP) – the first Turkish asylum law – a unique “conditional refugee” status was created which considerably extended the scope of protection to non-European refugees without lifting the limitation to the 1951 Convention.
Geographical Limitation from the UNHCR and EU Perspective
Turkey’s geographical limitation has impacted several areas. Firstly, it has constituted a decisive factor, not only in shaping the country’s national asylum system, but also forming the nature and level of Turkey’s cooperation and relationship with the international community in the field of asylum. A significant example is that it has shaped the role and activities of the UNHCR Operation in Turkey. Due to the geographical limitation, UNHCR assumed responsibility for registration, refugee status determination (RSD) and resettlement procedures for non-European asylum seekers in the country for several decades. This resettlement role is important in terms of Turkey’s relationships with resettlement countries and with UNHCR. In addition, the geographical limitation was the source of numerous challenges and barriers for non-European refugees trying to find protection in Turkey. These challenges were also reflected in UNHCR’s discourse on refugee protection in Turkey. When analysing UNHCR’s annual country reports on Turkey and submissions to the UN Universal Periodic Review (UPR) covering the period until the full entry into force of the LFIP and the establishment of the new asylum system (2014-2015), we see consistent references to the existence of the geographical limitation and recommendations to Turkey for lifting the geographical limitation. However, starting from 2014-2015 we observe a change in the discourse where UNHCR priorities and recommendations start focusing less on the lifting of the geographical limitation but rather on full implementation of the legal framework in Turkey. For example, UNHCR’s submission on Turkey to the 3rd UPR cycle in 2019, unlike the submission for the 2nd cycle in 2014, does not include a recommendation pertaining to the lifting of the geographical limitation. This is quite understandable in the sense that UNHCR was one of the key supporters of the drafting process of the EU-inspired LFIP, which affirms Turkey’s obligations towards all individuals in need of international protection.
The geographical limitation on several occasions was utilized as a pragmatic migration management tool and gave Turkey some form of leverage, making it frequently the centrepiece of discussions about the migration dynamics between Turkey and the EU. The discussion about whether Turkey could be considered a safe third country in the context of the EU-Turkey Statement of March 2016, despite Turkey’s geographical limitation, could be given as a concrete example. An observation of the EU’s approach to the issue shows that the lifting of Turkey’s geographical limitation to the 1951 Convention has been on its political agenda for several decades. The initial EU Progress Reports from the late 1990s throughout the 2000s highlight a number of protection concerns in Turkey, such as short deadlines in submitting asylum applications, lack of consistent gathering and evaluation of figures concerning asylum seekers and rejection reasons, and imposition of residence fees on asylum seekers. These reports link the lifting of the geographical limitation with solving the reported issues and improving the efficiency of the asylum machinery. Although the language and tone used by the EU on this issue in its Progress Reports has not been consistent throughout the years, the EU has persistently called Turkey to lift the geographical limitation. For instance, in the late 1990s, the EU strongly calls Turkey to lift its “geographical reservation”, while from time to time the language softens to “geographical limitation”, especially after the adoption of the LFIP. It has also been observed that especially in the last couple of years, Turkey’s keeping of the geographical limitation was presented as a “fact” to substantiate that Turkey’s asylum legislation was only partially aligned with the EU acquis, rather than its lifting being considered as a solution of protection-related problems in the country. A remarkable example of this approach is the 2015 Progress Report. This report, which is dated after the Turkish national asylum authority (DGMM) became fully functional, has no mention of the geographical limitation. It refers to the Commission’s Report on the progress by Turkey in fulfilling the requirements of its visa liberalisation roadmap. The latter report highlights that the LFIP reduced the impact of the geographical limitation to a marginal level and adds that while the status offered to conditional refugees is relatively less beneficial, the differences in law are not high and recommends that the implementation ensures that they remain so. While noting that the benchmarks were partially fulfilled, the Report emphasises that good prospects for further progress were connected to the adoption of the secondary legislation and the LFIP to be effectively and consistently implemented in the country. Thus, it could be concluded that no direct link between the lifting of geographical limitation and scope of protection and access to rights by those in need of international protection was established by the Report.
International Protection Statuses in Turkey
Turkish legislation identifies asylum seekers, i.e. those who are pending individual status determination following an asylum application, as ‘international protection applicants’ and establishes three international protection statuses, namely refugee status, conditional refugee status and subsidiary protection status. In addition to these statuses the Turkish asylum system also includes a temporary protection regime, currently applicable to the Syrian refugees in Turkey, which is by nature not affected by the geographical limitation and is therefore outside the scope of this article. As mentioned above, Turkey applies the 1951 Convention to European refugees only, and this led to the creation of a unique ‘conditional refugee’ status in domestic law covering non-European refugees. The condition in question is defined in Article 62 of the LFIP as “being allowed to stay in Turkey until they are resettled to a third country”. In this connection it should also be noted that there is an ever-growing gap between the resettlement quotas and the number of asylum seekers (i.e. potential conditional refugees) in Turkey. UNHCR’s total resettlement target for (both Syrian and non-Syrian) refugees in Turkey for 2021 is 11,500 and as of 31 Jan 2021 there are over 3.6 million Syrian refugees and around 320,000 non-Syrian refugees and asylum seekers in Turkey. This means a smaller percentage of conditional refugees can realistically be expected to be resettled each year, thus unless resettlement is completed, these conditional refugees will continue to stay in Turkey. Meanwhile the LFIP does not impose any restriction either in conditional refugees’ access to rights or the protection they enjoy if their stay becomes indefinite without an actual prospect for resettlement. Besides, with the exception of being conditioned to be resettled due to the geographical limitation, the LFIP conditional refugee status’ definition (Article 62) is identical to that in the 1951 Convention (Article 1A(2)). In addition to the refugee and conditional refugee statuses, the LFIP also defines a subsidiary protection status with the aim of providing a complementary type of international protection to foreigners who do not satisfy the refugee/conditional refugee definition. The definition of subsidiary protection in the Turkish legislation (Article 63 of LFIP) is almost identical to that in the EU Qualification Directive (2011/95/EU) and mainly covers those who, if returned, face a risk of serious harm due to death penalty, torture or inhuman or degrading treatment or punishment, and indiscriminate violence.
Impact of the Geographical Limitation on the Protection Space in Turkey
Having these in mind, the impact of the geographical limitation on the protection space in Turkey can be best understood by comparatively analysing the international protection statuses under the LFIP, including the rights and obligations attached to these statuses, as well as the procedural and legal safeguards the individuals under these statuses enjoy. In terms of the legal protection and the safeguards that form the basis for the core international protection framework in Turkey, the provisions of the LFIP in general do not differentiate between European and non-European asylum seekers or European and non-European international protection status holders. So, one could rightly ask what kind of a difference Turkey’s geographical limitation to the 1951 Convention makes in practice.
Although few in number, some differences between the rights accessible by different international protection statuses do exist. Firstly, while refugees and subsidiary protection status holders have automatic access to the right to work after their statuses are recognised (LFIP, Article 89), international protection applicants and conditional refugees must wait for 6 months after lodging their international protection application before applying for a work permit . Secondly, whereas refugees are issued the travel document stipulated in Article 28 of the 1951 Convention (‘the Convention Travel Document’), conditional refugees and subsidiary protection status holders can apply for a foreigners’ passport as regulated under the Turkish Passport Law. The Convention Travel Document benefits from the guarantees under the 1951 Convention and is in principle valid for multiple entry/exits, and without exceptional reasons its issuance is the rule. On the other hand, the foreigners’ passport is valid only for a single exit or entry and can be subject to a stricter issuance procedure by Turkish authorities.
Finally, under the national legal framework, the national asylum authority (DGMM) is empowered to require international protection applicants, refugees, conditional refugees and subsidiary protection status holders to reside in specific cities and/or require them to fulfil regular reporting duties. The particular city of residence could be subject to certain changes due to family, health and educational reasons. These residency requirement and reporting duties constitute the standard procedure applicable for international protection applicants. However, DGMM may also choose – and in practice regularly chooses – to also apply them to the aforementioned status holders (refugee, conditional refugee and subsidiary protection holders) on public order and public security grounds. But it should be also noted that the extremely small number of refugees in Turkey (28 individuals as of July 2019) renders making a reliable comparison between implementation for refugees and other status holders impossible. So, one might think that the situation regarding these potential restrictions of freedom of movement is the same for all international protection statuses, but a noteworthy difference in this regard is the legal basis. For conditional refugees and subsidiary protection status holders they are based on the LFIP itself (Article 82) whereas for refugees on the implementing regulation of the LFIP (Article 110).
Thus, it could be said that the legal differences between the rights and obligations of the refugee and conditional refugee statuses in Turkey mainly concern the timeframe in their access to the labour market (albeit subject to the same limited opportunities in the job market) and the type of travel documents they may obtain and whether their residence requirement and reporting duties are based on primary or secondary law.
As for the areas that are regulated identically for all international protection statuses in Turkey, the provisions regulating the main principles, that is, the legal and procedural safeguards and access to other rights and services (such as health, education or social assistance), as well as obligations (such as reporting of changes in civil status, income, etc.), make no differentiation between international protection statuses . The non-refoulement principle, access to territory (and non-penalisation for irregular entry), access to administrative and legal remedies as well as legal aid, confidentiality in asylum procedures, access to services such as interpretation, and procedural safeguards during administrative detention in the context of asylum are ensured by LFIP for all status types without any regard to the status holders’ (or applicants’) origin. These mark a significant improvement compared to the pre-LFIP era, where non-European asylum seekers and refugees lacked the protection of a comprehensive legal framework. In sum, it can be argued that the impact of the geographical limitation on the scope of the protection provided to different statuses has significantly diminished since the adoption of the LFIP, confirming the premise of the above-mentioned EU report on Turkey’s progress in relation to the visa liberalisation roadmap.
However, this should not be understood to mean that there are no challenges in accessing protection or no significant gaps in the asylum system in Turkey. On the contrary, having been the host country to the largest refugee population in the world and having reformed the entire asylum system in the middle of the greatest refugee influx the country has ever experienced inevitably resulted in challenges and shortcomings that are perhaps hard to avoid. To name a few of the major issues: the temporary protection regime which was instituted to offer protection to the millions of Syrian refugees has been active in Turkey for almost 9 years at the time of the writing of this article. This is too long by any standards for a protection regime of a temporary nature mainly regulated by secondary legislation rather than laws (Temporary protection was declared de facto in 2012, which gained legal basis with the adoption of the Temporary Protection Regulation in 2014 ). In addition to Syrian refugees, hundreds of thousands of non-Syrian asylum seekers are being hosted in Turkey. The backlogs in the registration and RSD processes of these individuals significantly delay assessment of their protection statuses and their registration and documentation as asylum seekers, thus putting many in limbo. These delays consequently prevent asylum seekers’ access to rights and services. International protection status holders may also face barriers in accessing rights in practice due to capacity limitations in the delivery of services by national authorities, even though their access is granted by the legal framework. Of note is that some of the issues faced by asylum seekers in the field relate to the legislative framework. For instance, through amendments to the LFIP in 2016 and 2019, the effects of certain safeguards ensuring non-refoulement were weakened and appeal deadlines in the deportation procedure were shortened, and the duration of the state-sponsored coverage of health insurance premiums of asylum seekers and international protection status holders was limited to one year with the possibility of exceptions for vulnerable persons.
In light of the above-mentioned issues and recent developments in the Turkish asylum legislation, it is safe to say that compared to 2013, when the LFIP was adopted, refugee protection in Turkey has gotten slightly weaker and the national asylum system displays various shortcomings both in law and practice. Some of these shortcomings have stronger impact than others and some may be expected from a national asylum system that is struggling to operate under a colossal caseload. However, the common feature of the issues and shortcomings identified in this article is that they affect all international protection status holders and/or asylum seekers in Turkey regardless of their European or non-European origin. Therefore, it could be concluded that Turkey’s geographical limitation to the 1951 Convention and its Protocol cannot be identified as the main protection challenge in Turkey today. The geographical limitation would still present opportunities for a potential clawback from the 1951 Convention guarantees if the Turkish Government chooses to further limit the protection provided to non-European refugees in future. It is a political leverage that Turkey seems unwilling to let go of unless EU membership is achieved. However, the limitation’s current legal effect on the protection space in Turkey is relatively minor, and the major gaps in the asylum system stem mainly from the limited resources vis a vis the high backlog of cases and the weaknesses in effective solidarity and cooperation at the global and regional levels, rather than from the legal framework. Yet these could form the topic of a separate discussion.
All in all, Turkey has managed to establish an asylum system which is legally capable of providing international protection to all those in need in alignment with the international standards set out in the 1951 Convention and reflected into the EU acquis– without actually lifting the geographical limitation to the 1951 Convention. This article attempted to show that there are significant issues and challenges in the Turkish asylum system today and even new ones could emerge due to reasons such as the protracted situation of Syrian refugees and negative economic developments in the country, and that although these issues in large part affect all asylum seekers and refugees in Turkey, none of them can be directly attributed to the geographical limitation to the 1951 Convention anymore. The existence of geographical limitation and its potential lifting by Turkey are still very important topics of discussion. However, rather than being a mainly protection-related concern, the geographical limitation is more of a political issue mostly pronounced in the context of EU – Turkey relations today.
Ayse Dicle Ergin, PhD (Assistant Professor, Bilkent Law School) firstname.lastname@example.org
Yigit Kader, LLM (Lecturer, Başkent Law School) email@example.com
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