Turkey currently hosts both a mass-influx refugee population from neighbouring Syria and a surging number of individually arriving asylum seekers of other nationalities, most principally originating from Iraq, Afghanistan, Iran and Somalia, among other. These two populations of protection seekers are subject to two different sets of asylum rules and procedures. As such, the Turkish asylum system has a dual structure.
Turkey maintains a “geographical limitation” to the 1951 Refugee Convention, and denies refugees from ‘non-European’ countries of origin the prospect of long-term legal integration in Turkey. That said, in April 2013 Turkey adopted a comprehensive, EU-inspired new Law on Foreigners and International Protection (LFIP), which establishes a dedicated legal framework for asylum in Turkey and affirms Turkey’s obligations towards all persons in need of international protection, regardless of country of origin, at the level of binding domestic law. The new Law also created a brand new, civilian Directorate General of Migration Management (DGMM) mandated to take charge of migration and asylum. This new agency is currently still in the process of establishing full operational command on the asylum case load and building a full-fledged new asylum system from scratch.
Turkey implements a “temporary protection” regime for refugees from Syria, which grants beneficiaries right to legal stay as well as some level of access to basic rights and services. The “temporary protection” status in acquired on a prima facie, group-basis, to Syrian nationals and Stateless Palestinians originating from Syria. DGMM is the responsible authority for the registration and status decisions within the scope of the “temporary protection” regime, which is based on Article 91 of the LFIP and the Temporary Protection Regulation (TPR) of 22 October 2014.
On the other hand, asylum seekers from other countries of origin are expected to apply for an individual “international protection” status under LFIP and are subject to a status determination procedure conducted by the DGMM. That said, the Provincial DGMM Directorates have only recently become fully operational and so far delivered only a small number of procedure and status decisions on “international protection” applicants.
While DGMM is the still in the process of establishing the new national asylum procedure on the basis of LFIP, UNHCR assumes a key role in Turkey as a ‘complementary’ protection actor, and continues to undertake refugee status determination (RSD) activities of their own grounded in UNHCR’s Mandate and make resettlement referrals – ‘in tandem’ with the new Government “international protection” procedure. That said, UNHCR Mandate RSD decisions do not have any direct binding effect under LFIP, which firmly establishes DGMM as the sole decision maker in asylum applications.
“Temporary Protection” Regime for Refugees from Syria
Refugees from Syria, who have been treated as a mass-influx population by the Government of Turkey since the very beginning of arrivals in March 2011, benefit from a group-based “temporary protection” regime, which was formalized by the Temporary Protection Regulation (TPR) of 22 October 2014. The Turkish “temporary protection” status grants beneficiaries the right to legal stay, protection from refoulement and access to a set of basic rights and services, including free healthcare. The DGMM is the agency in charge of registering and granting status to refugees from Syria within the scope of the “temporary protection” regime. As of 7 December 2015, the number refugees from Syria registered as beneficiaries of “temporary protection” was listed at 2,291,900.
Of this registered population of 2,291,900 about 263,000 are accommodated in 25 large-scale refugee camps spread across 10 provinces in the south of Turkey, whereas the remaining majority live in residential areas in private accommodation on their own resources and dispersed all over Turkey, including the big cities of Istanbul, Ankara and Izmir, among other. Turkey’s Disaster and Relief Agency (AFAD) is in charge of the camps set up for refugees from Syria and also assumes a coordinating role in regards to provision of rights and services to the non-camp population of “temporary protection” beneficiaries. UNHCR Turkey assumes a limited supplementary role in relation to the population subject to the “temporary protection” regime. The agency does not separately conduct any registration of “temporary protection” beneficiaries, but identifies and processes a relatively modest number of persons for resettlement.1
The Turkish “temporary protection” concept represents a prima facie, group-based approach, and therefore does not involve a formal status determination procedure as such. All nationals of Syria and stateless Palestinians originating from Syria are eligible for “temporary protection” in Turkey. That said, the TPR entails grounds for exclusion from “temporary protection” as well as cancellation and cessation of “temporary protection” status of a beneficiary. In order to access “temporary protection” status, prospective beneficiaries must register with DGMM and obtain a Temporary Protection Identification Card.
Persons benefitting from “temporary protection” are barred from making a separate individual “international protection” request. The TPR of 22 October 2014 did not impose a set duration on the “temporary protection” regime currently in place for refugees from Syria. Continuation or termination of the policy going forward is entirely within the discretion of the Government. Neither does the TPR strictly guarantee access to the individual “international protection” procedure to former beneficiaries in the event of a future termination of the “temporary protection” regime. Furthermore, as will be discussed below, because of Turkey’s “geographical limitation” policy on the 1951 Refugee Convention, an individual “international protection” status under LFIP does not lead to long-term legal integration. The TPR itself also explicitly precludes any prospect of long term legal integration for “temporary protection” beneficiaries.
Therefore, the Turkish “temporary protection” concept in its current form falls short of promising a secure, long-term solution to refugees from Syria seeking safety in Turkey, while it does create a framework for addressing the immediate and short-term protection and humanitarian needs of beneficiaries.
The separate chapter of this report dedicated to the “temporary protection” regime presents the specifics of the current legal framework and implementation of the “temporary protection” regime in place for refugees from Syria on the basis of the TPR.
The new “International Protection” Procedure for non-Syrian Nationalities
When it comes to other nationalities of protection seekers in Turkey outside the group-based “temporary protection” framework, they are subject to the new “international protection” procedure administered by DGMM on the basis of the LFIP, which came into force in April 2014. As of 8 December 2015, a total of 134,140 persons were registered with DGMM in the framework of Turkey’s new “international protection” procedure. The LFIP, adopted in April 2013, emerged out of Turkey’s EU accession process and is largely based on EU migration and asylum acquis – albeit with some notable exceptions, including the “geographical limitation” policy on the 1951 Refugee Convention, which the Law maintains.
The LFIP is Turkey’s first-ever national law governing matters of asylum. As such, it represents a historic step forward in the evolution of the protection space in Turkey for refugees. In the period before the LFIP, the responsibility for registering and processing asylum seekers was entrusted to the Foreigners Department of the National Police, which for decades governed matters of asylum entirely on the basis of administrative discretion and without the benefit of either appropriate expertise or sufficient dedicated institutional capacities, which led to violations and kept the quality of protection available to refugees in Turkey at a bare minimum.
The LFIP overhauled the entire domestic law framework for management of migration and asylum in Turkey and for the first time provided a proper domestic law basis for the de facto protection space that previously existed in Turkey for refugees. The Law also established the new Directorate General of Migration Management (DGMM) – an EU-style, civilian agency under the Ministry of Interior to take over all implementation in the field of migration and asylum from the National Police. At present, the process for the instutionalisation of DGMM and transition to the new legal and administrative framework laid down by the LFIP are still ongoing.
Below, an overview is presented of the eligibility criteria, determination procedure and reception rights provided by the “international protection” procedure under LFIP. It is important to observe however that the new asylum procedure design provided by the LFIP does not yet fully correspond to the reality on the ground. The current state of implementation of the new procedure and UNHCR’s continuing role in Turkey as a ‘complementary’ protection actor during this period of transition will be situated in the following subsections below.
The LFIP provides three types of individual “international protection” status in accordance with Turkey’s “geographical limitation” policy on the 1951 Convention – which will be further explained below.
(1) Persons who fall within the refugee definition in Article of the 1951 Convention and come from a ‘European country of origin’2 qualify for “refugee” status under LFIP, in full acknowledgment of Turkey’s obligations under the 1951 Convention. The Turkish legal status of “refugee” under LFIP should afford rights and entitlements in accordance with the requirements of the 1951 Convention, including the prospect of long-term legal integration in Turkey. Whereas;
(2) Persons who fall within the refugee definition in Article of the 1951 Convention but come from a so-called ‘non-European country of origin’, are instead offered “conditional refugee” status under LFIP. The “conditional refugee” status is a Turkish legal concept introduced by the LFIP for the purpose of differentiating in treatment between 1951 Convention-type refugees originating from ‘non-European’ states and those originating from ‘European’ states. The Turkish legal status of “conditional refugee” under LFIP affords to beneficiaries a set of rights and entitlements lesser to that granted to “refugee” status holders. Most importantly, “conditional refugee” status holders are not offered the prospect of long-term legal integration in Turkey and excluded from “family unification” rights.
(3) Persons who do not fulfil the eligibility criteria for either “refugee” status or “conditional refugee” status under LFIP, who would however be subjected to death penalty or torture in country of origin if returned, or would be at “personalized risk of indiscriminate violence” due to situations or war or internal armed conflict, qualify for “subsidiary protection” status under LFIP. The Turkish legal status of “subsidiary protection” fully replicates the subsidiary protection eligibility definition provided by the EU Qualification Directive. Similar to the “conditional refugee” status holders, “subsidiary protection” beneficiaries receive a lesser set of rights and entitlements as compared to “refugee” status holders and are barred from long-term legal integration in Turkey. Notably however, unlike “conditional refugee” status holders, “subsidiary protection” beneficiaries are granted family unification rights in Turkey.
The LFIP, in addition to laying down the above summarized new eligibility grounds for asylum in Turkey, also provides, for the first time in Turkey, a full-fledged new “international protection” application and determination procedure, complete with basic procedural safeguards, including guarantees on access to legal representatives and to UNHCR and new legal remedies that secure applicants’ right to stay in Turkey until the full exhaustion of the procedure. The newly established DGMM is the designated agency in charge of registering and processing “international protection” applications.
In terms of asylum procedures, the LFIP makes no distinction among applicants based on country of origin in relation to the “geographical limitation” policy. All applicants for “international protection”, regardless of nationality, are subject to the same application and determination procedure and benefit from the same procedural safeguards and reception rights. Since the LFIP was largely based on the EU migration and asylum acquis, the new “international protection” procedure incorporates many EU asylum law concepts and procedural approaches, including “accelerated processing” of certain types of claims, administrative detention of applicants under certain conditions, admissibility considerations based on “safe third country” and “first country of asylum” grounds, and the notion of “implicit withdrawal” of asylum request, among other.
Under the LFIP, the regular “international protection” procedure shall aim to issue first instance decisions in 6 months. This time frame is however not binding and may be extended by DGMM if deemed necessary. Under the accelerated procedure, the status determination interview has to be conducted within 3 days of the date of application, and a decision must be issued within 5 days of the interview. The LFIP also provides a differentiated set of remedies against decisions issued within the framework of regular procedure as compared to decisions issued within the framework of accelerated procedure as well as admissibility decisions. Judicial appeals against negative status decisions under accelerated procedure and inadmissibility decisions have to be filed within 15 days. Negative decisions under regular procedure, and other unfavourable decisions, can be challenged at the newly established International Protection Evaluation Commission within 10 days or directly at the competent administrative court within 30 days. All “international protection” appeals carry suspensive effect and guarantee applicants’ right to stay in Turkey until the full exhaustion of remedies.
The LFIP does not commit to providing shelter to “international protection” applicants as a right as such, but it envisions the launch of a small number of “Reception and Accommodation Centres” to accommodate particularly vulnerable applicants. That said, DGMM currently has a very limited capacity to shelter “international protection” applicants, and it remains unclear when such new “Reception and Accommodation Centres” will become available and operational. Under a dispersal policy known as the ‘satellite cities’ policy, “international protection” applicants are assigned by DGMM to a designated province where they are expected to secure private accommodation on their own means and stay until the end of their “international protection” proceedings.
“Geographical Limitation” Policy and UNHCR’s Role in Turkey as ‘Complementary’ Protection Actor
As will be further elaborated in the following subsection, at present the DGMM is still in the process of establishing full command on the “international protection” case load, which it has inherited in April 2014 from the Foreigners Department of the National Police – the agency previously in charge of asylum matters.
In this transitional context, UNHCR continues to assume an important role in Turkey as – what could be characterized – a ‘complementary’ protection actor for non-Syrian individually arriving nationalities of asylum seekers subject to the DGMM “international protection” procedure. At the same time, as Turkey transitions to the new asylum framework established by the LFIP and the DGMM is increasingly taking charge of asylum matters, UNHCR’s traditional role in Turkey as de facto asylum decision maker and resettlement broker is also in the process of evolution.
For an historical understanding of UNHCR’s role in Turkish asylum system and its current evolution, it is important to explain Turkey’s “geographical limitation” policy on the 1951 Refugee Convention and UNHCR’s refugee status determination (RSD) activities grounded in the agency’s own mandate, which served as the de facto national asylum procedure in Turkey for decades until the adoption of the LFIP.
Although Turkey was among the first signatories of the 1951 Refugee Convention, it became party to the Convention with a “geographical limitation”, which as per Article 1-B of the Convention gave state parties the option of limiting their obligations under the Convention to refugees originating from ‘European’ countries of origin.3 Although the “geographical limitation” option was dismantled by the 1967 New York Protocol to the Convention, state parties who had signed the Convention prior to 1967 retained the option of maintaining it.4 Today Turkey remains the only Council of Europe member state, which still maintains this “geographical limitation” policy. Accordingly, as far as refugees originating from ‘European’ countries of origin, Government of Turkey considers itself fully bound by the entire range of obligations towards refugees under 1951 Convention. However, as far as refugees originating from ‘non-European’ countries of origin, Turkey does not consider itself bound by the 1951 Convention obligations – with the exception of the “undertaking to cooperate with UNHCR” under Article 35 of the Convention and the non-refoulement principle protected by Article 33 of the Convention, which has since then acquired the status of customary international law.
It is very important to emphasise however that the “geographical limitation” policy does not mean that Turkey does not undertake any legal obligations towards refugees from ‘non-European’ countries of origin. It only means that Turkey considers itself bound by the 1951 Convention obligations per se only in regards to such ‘European’ refugees. However, Turkey’s current domestic law framework for asylum, and specifically the LFIP does create a set of binding protection obligations towards all persons seeking international protection in Turkey regardless of country of origin. The new “international protection” procedure administered by DGMM, and protection from refoulement and other safeguards provided by LFIP apply to all asylum applicants the same way regardless of whether they originate from a ‘European’ country or a ‘non-European’ country. However, as presented above, the LFIP offers a lesser set of rights and entitlements to ‘non-European’ “international protection” status holders – most notably in regards to access to Turkish citizenship and family unification rights, among other.
Historically, because of the “geographical limitation” policy and the Government of Turkey’s reluctance to set up a national asylum system proper, UNHCR Turkey Representation had come to assume the role of identifying persons arriving in Turkey in need of international protection and finding long-term solutions for refugees beyond Turkey in the form of resettlement. For decades starting in the 1950s, UNHCR Turkey Representation had been carrying out a ‘refugee status determination’ (RSD) procedure grounded in UNHCR’s own Mandate as opposed to any domestic law basis in Turkish law. Under this informal cooperation arrangement, Turkey allowed UNHCR to register and process asylum seekers, allowed applicants with UNHCR to stay in Turkey, and facilitated the resettlement departures of those recognized by UNHCR to be in need of international protection.
The 1994 Asylum Regulation was the first piece of domestic legislation Turkey adopted in order to regulate the processing and treatment of persons seeking asylum in Turkey. Technically this instrument was an implementing regulation as opposed to a law as such, but it remained Turkey’s principal legislation on asylum until the LFIP came into force in April 2014. Under the 1994 Asylum Regulation regime, the Foreigners Department of the National Police served as the designated agency in charge of processing asylum applications on the basis of the principle that all asylum in Turkey was by definition temporary with the understanding that refugees would seek long-term solutions in third countries in the shape of resettlement with UNHCR’s assistance.
Although the 1994 Asylum Regulation did not make any reference to the role of UNHCR Mandate RSD procedure in the Turkish asylum system at the time, in practice protection seekers were advised to make two applications: one to UNHCR Turkey Representation with a view to have UNHCR recognize their need for international protection and subsequently submit their case to a resettlement country; and one to the Foreigners Police for the purpose of regularizing their stay in Turkey and being allowed to stay on a temporary basis until the end of their UNHCR RSD and resettlement proceedings. As such, this arrangement was described as a system of ‘parallel procedures’. Although the UNHCR RSD procedure did not have any grounding in domestic law and officially the Foreigners Police was supposedly the only decision maker in asylum applications, the reality was rather the other way around. In practice, in the vast majority of cases the token Government asylum procedure respected and complied with the UNHCR RSD outcome on the same applicant. Therefore, throughout this period UNHCR’s Mandate RSD procedure served as the Turkish Government’s surrogate mechanism for the screening and determination of international protection needs in Turkey and UNHCR remained as the de facto decision maker in asylum cases.
Starting around 2007 and 2008, this arrangement between UNHCR and the Turkish Government began to come under growing strain because as the number of new asylum applications in Turkey acquired an increasing trend, the number of resettlement places made available to UNHCR Turkey by resettlement countries remained more or less stagnant. Therefore, it became increasingly apparent that UNHCR was no longer able to resettle even the majority of ‘non-European’ refugees seeking protection in Turkey. Furthermore, steadily increasing applications also stretched UNHCR’s RSD processing capacity beyond its limit and led to excessive waiting periods at all stages of the UNHCR procedure – from registration through the status determination interview to the eventual first instance decision. By 2013, UNHCR Turkey was already managing the largest UNHCR Mandate RSD operation globally and mightily struggling to process a surging number of new applications.
Cooperation Arrangement between DGMM and UNHCR in the framework of the LFIP
As the Government of Turkey finally adopted the LFIP in April 2013 and made a commitment to build a full-fledged national asylum system from scratch and created – in DGMM – a specialised new Government agency for this purpose, UNHCR Turkey stepped up its focus on supporting Turkey’s asylum capacity-building efforts while preparing to retreat to a more ‘complementary’ role in the context of the new “international protection” procedure provided by the LFIP. Indeed, the LFIP firmly establishes DGMM as the agency designated to process and decide asylum applications in Turkey and does not grant UNHCR a role as decision maker.
At present, while the DGMM is gradually taking control of the “international protection” case load and taking steps towards the full implementation of the provisions of LFIP, UNHCR is also reconsidering the organization and priorities of its Mandate RSD operation in Turkey in conjunction with the emerging new Government procedure. There are ongoing discussions regarding the future modalities of the cooperation arrangement between the two agencies – subject to the understanding that the new “international protection” procedure is the only legally binding asylum procedure in Turkey and DGMM is keen to gradually assert itself as the sole decision maker on asylum applications. That said, in the foreseeable future UNHCR will continue to identify and submit selected cases for resettlement.
Going forward, UNHCR Turkey intends to continue registering newly arrived asylum seekers, who are now principally all subject to the new DGMM “international protection” procedure. The primary purpose of UNHCR registration in the current outlook is for the agency to be aware of the persons seeking “international protection” in Turkey and oversee their access to legal protection mechanisms provided under the new Turkish Government asylum system, with a view to carry out ‘complementary’ protection interventions for selected individuals, where necessary, either vis-a-vis DGMM authorities or for the purpose of resettlement processing – within the confines of the limited quotas made available by resettlement countries to UNHCR Turkey.
Under this new approach, UNHCR will continue to encourage all newly arriving asylum seekers to approach their offices and register with UNHCR, in parallel with the “international protection” application they are expected to address to the DGMM.5 Indeed during the UNHCR registration, new applicants are advised to report to an assigned province in order to initiate their application to DGMM. While UNHCR will continue to register all new arrivals, an actual UNHCR RSD interview will be conducted and a Mandate RSD decision will be issued only in cases where UNHCR considers that the Mandate RSD can generate added-value in addressing the specific protection needs of an asylum seeker, which cannot be addressed in the framework of the Government asylum procedure, or where the person concerned represents a specific and particular vulnerability indicating he/she should be prioritized for resettlement. Currently, the actual operational modalities of this new approach are pending deliberation and finalization on the part of UNHCR Turkey.
In the context of the ongoing massive transition in the Turkish asylum system, a crucial question that emerges in regards to UNHCR’s future role in Turkey concerns the relationship between the new Government “international protection” procedure administered by DGMM and the UNHCR RSD procedure. As of present, these two activities are practically still organised as two separate procedures by two different agencies processing the same asylum seekers ‘in parallel’.
Under LFIP, there is no question that DGMM is the sole decision making authority in Turkey in asylum applications. Neither is there any question that DGMM is very keen to assert its new role and take full charge of the asylum field and of status decisions on persons seeking protection in Turkey going forward. On the other hand, UNHCR Turkey does not anyway have the operational capacity to process the very significant numbers of asylum seekers from Iraq, Afghanistan, Iran and elsewhere, who continue to arrive in Turkey. Therefore, the old cooperation arrangement between the Government of Turkey and UNHCR, which granted UNHCR the role of de facto decision maker in asylum cases, is neither feasible nor politically agreeable any longer. That said, as will be elaborated in the following subsection, DGMM has not yet shown itself fully equipped and capable of fully implementing the new status determination procedure provided by the LFIP and of delivering a significant number of status decisions on applicants.
It is anticipated that in the near future, the DGMM will begin issuing “international protection” status decisions on its own, unlike before, without the benefit of a prior ‘parallel’ UNHCR determination on the applicant. At the same time, UNHCR Turkey will continue efforts to train DGMM personnel and seek to input as much as possible into DGMM status determination assessments in an advisory role.
As of 31 October 2015, there were a total of 235,901 non-Syrian refugees and asylum seekers registered with UNHCR, among which Iraqis (49%), Afghans (35%) and Iranians (10%) constituted the largest groups. On the DGMM-side of the ‘parallel procedures’ arrangement, as of 8 December 2015, a total of 134,140 persons were registered within the framework of Turkey’s “international protection” procedure. The discrepancy between the UNHCR-registered caseload and DGMM-registered caseload begs explanation since the two procedures theoretically encompass the very same protection seekers, who are asked to register with both agencies. This discrepancy can be explained by three factors:
Firstly, the current practice on the ground is such that the vast majority of newly arrived asylum seekers first approach UNHCR. Following their registration with UNHCR Turkey, they are referred to a province where they are advised to initiate their “international protection” applications at the Provincial DGMM Directorate. Therefore, the actual initiation of the “international protection” request and the DGMM registration takes place after the UNHCR registration. In practice, not all persons who register with UNHCR actually report to their assigned province to initiate their procedures with DGMM. Specifically, it is understood that significant number of Iraqi and Afghan applicants with UNHCR choose not to proceed with the subsequent DGMM registration for a variety of reasons. Secondly, most Provincial DGMM Directorates are currently overburdened by the requirements and duties regarding the registration of “temporary protection” beneficiaries. This leads to delays in the actual completion of the DGMM registration of new “international protection” applicants. Thirdly, as will be elaborated in the section below on Treatment of Specific Nationalities, some of the Iraqi protection-seekers registered with UNHCR actually stay in Turkey on the basis of “humanitarian residence permits” in accordance with Article 46 of LFIP and therefore would not be reflected in the DGMM’s “international protection” case load as such.
Current State of DGMM Takeover and Transition to the new “International Protection” Procedure
As observed above, the DGMM is a very recently established agency still in the process of establishing full command on the asylum case load and building institutional capacities, while at the same time also struggling to cope with duties pertaining to the over 2 million-strong mass influx population of refugees from Syria under “temporary protection”. Therefore, the design of the new “international protection” procedure summarised above does not yet fully reflect the reality on the ground.
Although the LFIP came into force on 11 April 2014, DGMM continued to rely on the Foreigners Police branches of Provincial Police Directorates for the processing of foreigners case load, including the asylum case load, since the Provincial DGMM Directorates were not ready to become fully operational at the time. As of 18 May 2015, it was announced that this transitional arrangement was over and the Provincial DGMM Directorates have formally taken over all case load. Furthermore, as of 1 July 2015, Provincial DGMM Directorates were authorised to issue decisions on “international protection” applications. That said, the DGMM is still in the early stages of building the necessary expertise and implementation modalities in order to be able to fully implement the new provisions of LFIP regarding applications for “international protection”.
As a result, Provincial DGMM Directorates have so far issued a relatively modest number of status decisions, whether positive or negative, and instead targeted resources on registration of both “international protection” applicants and “temporary protection” beneficiaries. In the meanwhile, efforts to train the newly hired DGMM personnel continue, including on matters of “international protection” status determination, mainly in the framework of cooperation with UNHCR Turkey. Going forward, it is anticipated that we are likely to see more status decisions issued in 2016 as the Provincial DGMM Directorates continue to build expertise and grow in confidence.
As of present, the relatively small number of decisions issued by DGMM since the LFIP came into force in April 2014 mainly entailed negative decisions issued to a small number of applicants processed in administrative detention within the framework of the new accelerated procedure and a relatively high number of “implicit withdrawal” decisions on applicants who have either failed to report to their assigned province or left their assigned province without permission.
As discussed in the preceding subsection, it is anticipated that in the next period DGMM will begin to determine and issue decision on “international protection” applications, unlike in the period before the LFIP, without the benefit of a prior or parallel UNHCR assessment into the international protection needs of the applicant. In this connection, it is worth noting that UNHCR’s Mandate RSD decisions in Turkey, historically featured exceptionally high recognition rates – which is indeed a reflection of the actual composition of persons seeking asylum in Turkey, involving a high percentage of bona fide refugee claimants.6 Under the traditional informal cooperation arrangement between UNHCR and the Turkish Ministry of Interior, persons recognized to be in need of international protection by UNHCR Turkey were generally not issued negative asylum decisions by the Foreigners Department of the National Police and allowed to stay in Turkey until UNHCR was able to resettle them to a third country. As such, the UNHCR Mandate RSD procedure served as a de facto ‘safety net’ for refugees in Turkey, indirectly reinforcing protection from refoulement by the authorities, despite that UNHCR RSD decisions did not have any direct binding effect under Turkish law. In the near future, it remains to be seen how DGMM “international protection” status decisions will turn out and whether the absence of a ‘parallel’ UNHCR assessment on each and every applicant will lead to a higher rate of negative asylum decisions. On the other hand, under LFIP, rejected “international protection” applicants have access to a brand new set of procedural safeguards and judicial remedies to challenge negative asylum decisions by DGMM.
Another key aspect of the current state of Turkey’s transition to the new asylum framework established by the LFIP is that DGMM is yet to finalize and publish the main Implementing Regulation of the new Law, which is expected to spell out the specifics of various implementation modalities and guide Provincial DGMM Directorates regarding how to interpret and apply many of the new legal concepts introduced by the LFIP. Despite the fact that by now it has been over one and a half years since the LFIP came into force, the Implementing Regulation appears still not finalized. Instead, as a transitional measure when the LFIP came into force in April 2014, DGMM generated two circulars to guide implementation of the new provisions pending the publication of the actual Implementing Regulation. While one of the circulars addressed implementation guidance regarding the ‘Foreigners’ section of the LFIP, the other one addressed the ‘International Protection’ section of the new Law.
Although these two Circulars have not been formally made public, they were subsequently shared with key nongovernmental stakeholders on confidential basis. It appeared since then that subsequently a number of amendments were made to the original April 2014 versions of the Circulars – which are only known to DGMM personnel. It is understood that an evolution of these Circulars of April 2014 shall constitute the basis of the pending Implementing Regulation, which according to DGMM sources is intended to be finally published during the first quarter of 2016.
Since the Implementing Regulation is still not available, the analysis in the “international protection” chapter of this report refers to the relevant provisions of the April 2014 dated original versions of the two Circulars.
- 1. In 2014, UNHCR Turkey has been able to submit a total of 5438 persons to selected resettlement countries. Source: UNHCR.
- 2. For the purpose of “geographical limitation” in regards to the interpretation of the 1951 Convention, Government of Turkey considers Council of Europe member states as ‘European countries of origin’.
- 3. It is important to emphasize that since the “geographical limitation” policy is based on an option provided by the 1951 Convention itself to signatory states, it is not a reservation as such but a treaty-based optional limitation.
- 4. See 1967 Protocol to the Refugee Convetion, Article 1(3).
- 5. It is important to note however that there is no requirement under LFIP for asylum seekers to approach and register with UNHCR before they can make an application for “international protection” with DGMM. Indeed the LFIP makes no mention of the UNHCR RSD procedure at all. In practice however, newly arrived asylum seekers are advised by both UNHCR and DGMM to do so in acknowledgement of UNHCR’s de facto ‘complementary’ role in Turkish asylum system.
- 6. To put this observation in context, the Statistics section shows that UNHCR Turkey Mandate RSD decisions made in first instance involved a 90% overall recognition rate. At the same time, it must be explained this exceptionally high recognition rate is partially informed by a UNHCR policy of prioritising the finalisation of cases deserving positive decisions as opposed to cases deserving negative decisions. Regardless, overall UNHCR RSD recognition rates in Turkey have historically always been aboe 70%.