LAW ON FOREINGERS AND INTERNATIONAL PROTECTION, DEPORTATION LAW AND SECURTY RELATED CODES UNDER TURKISH LAW
LAW ON FOREINGERS AND INTERNATIONAL PROTECTION, DEPORTATION LAW AND SECURTY RELATED CODES UNDER TURKISH LAW
This article we aim to explain and review Deportation Law and Case laws , Turkey, and the complaint procedure before the Turkish Constitutional Court under new law called protection on foreigners and related regulations and security-related codes for deportation such as G82 , G87, G89 , N82 etc.
As can be seen under mentioned provisions lawyers ar our law firm experienced and are authorized to handled the all type of deportation process in case of applications to the Administrative courts and Directorate General of Migration Management (DGMM) called Göç İdaresi Genel Müdürlüğü in Turkish of Turkey on these matters
Applicants for international protection generally have the right to remain on the territory of Turkey throughout the procedure However, an exception to this rule was introduced by way of emergency decree in October 2016, providing that a deportation decision “may be taken at any time during the international protection proceedings” against an applicant for reasons of: (i) leadership, membership or support of a terrorist organisation or a benefit-oriented criminal group; (ii) threat to public order or public health; or (iii) relation to terrorist organisations defined by international institutions and organisations.
For foreigners who have been convicted of an offence, the Turkish Public Prosecutor shall request the opinion of the Ministry of Interior as to whether or not they should be removed from the country.
The law effectively enables the deportation of asylum seekers, beneficiaries of international protection and beneficiaries of temporary protection on the aforementioned grounds which remain largely vague and could be interpreted widely. The reform introduced by the Decree has been criticised for facilitating and exacerbating risks of arbitrary deportations jeopardising the life and safety of refugees.
Cases of deportation under Article 54(1)(b), (d) and (k) Law on Foreingers and International Protection (LFIP – Law numbered 6458 numbered ) continued in 2019. Cases reported by lawyers refer to criminal investigations, even if they do not result in a conviction, followed by administrative detention for the purpose of
Deportation on public order, public security and public health grounds is linked to the security restriction codes issued by Directorate General of Migration Management (DGMM) called Göç İdaresi Genel Müdürlüğü in Turkish based in Ankara and have branches in all cities , a practice still not governed by clear, publicly available criteria.] The implementation and regulation of these codes is not set out in the law but likely in internal circulars and instructions within the administration.
In early 2019 there was a case of a deportation from Atatürk Airport in Istanbul (closed as of April 2019) of an Egyptian political opponent who is now reportedly imprisoned in Egypt. A criminal case has been opened against officers who carried out the deportation.
Security-related codes
Security-related codes such as “G82” for activities against public order, public securty and/or Public health. “G89” for foreign terrorist fighters and “G87” for general security seem to still be applied, though only in specific parts of the country, such as Gaziantep. The assessment of risks, conducted by the Risk Analysis Department as far as airports are concerned, is made with reference to broad criteria and in practice may be based on the appearance or point of entry of the individual e.g. Turkish-Syrian border. Intelligence from other countries often leads to the issuance of a security restriction code, even though the content and quality of intelligence vary depending on the issuing country.
Security codes can be only appealed before the Administrative Court of Ankara since they are issued by DGMM Headquarters or in same cases in ralated cities in cluding Istanbul,Izmir and Antalya, van ,. In appeals against the issuance of restriction codes, confidential documents submitted by DGMM are not available to the individual or his or her lawyer; they can only be accessed in person at the registry of the Administrative Court of Ankara. The court generally leaves a wide margin of discretion to DGMM with regard to the issuance of codes. It has not taken a uniform approach to the scrutiny of codes, with some rulings annulling the issuance of codes for want of evidence and others upholding them.
Our lawyers at Kaya & Partner had some success in appealing codes due to procedural errors by the administration who at times have been unable to provide information on the legal basis for applying the code, or where there is a lack of legal notification or translation. In Istanbul and in Ankara there is no specific profile of the people being assigned codes, anyone can be assigned a code, even Canadian, Americans or Eurpeans including Germans, British,
In many cases, Administrative Court rulings annulling the issuance of a security restriction code are later overturned by higher instance courts. In a January 2019 ruling, the Constitutional Court declared lack of jurisdiction to rule on a complaint concerning the cancellation a code.[
Appeal before the Administrative Court
Courts have clarified that the removal decision must be properly notified to the individual, either in writing or orally, and include information on appeal possibilities. The appeal against a deportation decision is a remedy separate from remedies in the international protection procedure. It now has automatic suspensive effect, following a review of the LFIP in reforms from December 2019, and the deletion of exceptions to the right to remain on the territory.
However, removal decisions must be appealed before the Administrative Court within seven and fifteen days of notification. Lawyers say it is extremely difficult to gather all the information and write an appeal in seven days particularly if the case needs translation work or there are difficulties accessing a client in detention. This short time limit has a negative affect both on access to justice and the quality of the lawyer-client relationship.
On the other hand, because the appeal now stops the deportation and practice is in conformity with the law, lawyers no longer need to apply to the Constitutional Court to stop deportations. Lawyers now only need to apply when an administrative body unlawfully deports their client or to secure a possible application to European Court of Human Rights ECtHR.
Since first instance Administrative Court decisions are not shared with the public in Turkey, it is difficult for experts and lawyers to assess the effectiveness and quality of judicial review. In the past there was no uniform application of the non-refoulement principle in Turkish Administrative Court reviews of deportation decisions. Even where the execution of removal was suspended by Administrative Courts, compliance with court orders was reported to be arbitrary and dependent upon the individual police officers in question. It is still too early to assess the impact of the new regulation, but the following cases illustrate developments in 2019.
There was a positive decision from the Van 1st Administrative Court concerning the deportation of a Christian Iranian in 2019. The grounds for the positive decision were the submission of translated evidence from the criminal court case of the applicant from Iran. The applicant was caught in Van without ID and sent to the removal centre to be deported. His application for international protection was not accepted by the removal centre management without a cover letter from his lawyer. The client was told that the accelerated procedure would be applied but did not receive a reply from Van PDMM for 11 months during which time he was in detention. His application was accepted only after the positive judgement of the Van 1st Administrative Court cancelling the deportation decision. His lawyer was not notified about his release from the removal centre. After three applications for his release from the removal centre which were all rejected without any legal grounds, he was released on the grounds that ‘the detention period was long enough’ and obliged to give his signature weekly in Van. Once he was registered in Van and received international protection, he applied for family reunification.
In an important case in Izmir, an appeal was accepted based on a need to undertake a careful assessment as per Article 55(2) of the LFIP. The potential returnee was from Mali although the government claimed he was lying and actually from Cameroon, which was a ground for deportation. The court ruled there was not enough due diligence and a lack of assessment to find out the returnee’s real name and nationality so the deportation should be cancelled. The assessment of nationality was not carried out in an effective way as required by Article 55(2) LFIP.
The complaint procedure before the Constitutional Court
An individual complaints procedure is available before the Turkish Constitutional Court, which is styled after the individual complaints procedure of the European Court of Human Rights (ECtHR) and is partially aimed at reducing the high number of complaints against Turkey at the ECtHR. Persons can file an individual complaint with the Constitutional Court on claims of a violation of “any of the fundamental rights and liberties provided by the Turkish Constitution and safeguarded by the ECHR and its Protocols” within 30 days of the exhaustion of all existing administrative and judicial remedies.
While individual complaints to the Constitutional Court do not carry suspensive effect, an urgent interim measure can be requested by the applicants as per Article 73 of the Rules of Court on account of “serious risk on the applicant’s life, physical and moral integrity”. This urgent application procedure by the Constitutional Court, in situations of imminent risk of deportation where the person concerned alleges a risk to his or her life or risk of torture if returned, is similar in nature to the Rule 39 procedure of the ECtHR.
Although the individual complaint procedure at Turkey’s Constitutional Court does not have automatic suspensive effect and a separate interim measure request must be filed and decided by the Court on a case by case basis, the ECtHR found in Sakkal and Fares v. Turkey that this procedure constituted an effective remedy, taking into consideration case law from the Constitutional Court which has halted deportations from Turkey. The first interim measure was given in 2014 in a case of an Algerian political dissident who had been tortured and imprisoned in Algeria due to his political opinions. In practice, the Constitutional Court seems to grant interim measures on different issues such as access to a lawyer or prevention of refoulement.
After the entry into force of Emergency Decree No 676, the only effective recourse for preventing removal was a complaint before the Constitutional Court together with a request for interim measures. This changed in 2019. The Court had delivered a pilot judgment in the case of Y.T. on 12 June 2018, launching a pilot procedure to examine whether requests for interim measures stemmed from a structural problem to protection from refoulement and, if so, what measures should be taken. In its decision published in July 2019, the Court said that Articles 53(3) and 54 of LFIP should be revised and that appeals against removal should have suspensive effect, especially where deportation could create a structural problem and severe human rights violations. The Court gave the authorities one year to make the necessary legal changes otherwise the Court would examine all applications filed requesting an interim measure to stop deportations in substance. According to the Court, there were 1,545 such applications between 29 October 2016 and 8 April 2019. The Court also accepted the request of the applicant to not be deported and awarded compensation and legal fees. A legal amendment to these and other articles of the LFIP was made in December 2019.
The lawyers at Kaya Partner still apply to the Constitutional Court when an administrative body unlawfully deports their client or to secure a possible application to ECtHR.
Where the Constitutional Court grants interim measures, it is up to the legal representative of the applicant to transmit the order to the PDMM so as to prevent the execution of the removal decision. The moat importa for lawyers in these cases to inform PDMM abput existing interim measures from court for preventing the deportations.
Kaya Partner Hukuki Danışmanlık
Lawyers – Rechtsberatung