The principle of non-refoulement is one of the most important provisions of the 1951 Geneva Convention. Article 33 of the 1951 Geneva Convention prohibits that refugees and asylum seekers are returned to places where danger of persecution is present.
There are 2 exceptions of the non-refoulement principle (Art. 33 II Geneva Convention):
– The benefit of non-refoulement may not be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he/she is;
– A refugee that has been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
Conditions in Turkey under whichrefoulement is allowed
In Turkey, the principle of non-refoulement is regulated by the Law on Foreigners and International Protection – LFIP (Law No. 6458).
However, the LFIP also defines people who can be deported despite the principle of non-refoulement.
According to the LFIP, removal decision shall be issued in respect of those foreigners
Listed below:
– Those who are deemed to be removed pursuant to Article 59 of the Turkish Penal Code № 5237;
– Those who are leaders, members or supporters of a terrorist organization or of a benefit oriented criminal organization
– Those who submit untrue information and false documents during the entry, visa and residence permit actions in Turkey
– Those who made their living from illegitimate means during their stay in Turkey
– Those who pose a public order or public security or public health threat
– Those who overstayed their visa or the visa exemption period for more than ten days or, whose visas are cancelled
– Those whose residence permits are cancelled
– Those who overstayed the expiry date of the duration of their residence permit for more ten days without an acceptable reason
– Those who are working without a work permit
– Those who breach the terms and conditions for legal entry into or exit from Turkey
– Those who are determined to have entered into Turkey despite an entry ban
– Those whose international protection claim has been refused; are excluded from international protection; application is considered inadmissible; has withdrawn the application or the application is considered withdrawn; international protection status has ended or has been cancelled, provided that pursuant to the other provisions set out in this Law they no longer have the right of stay in Turkey after the final decision
– Those who fail to leave Turkey within ten days in cases where their residence permit renewal application has been refused
A removal decision may be issued in respect of applicants or international protection beneficiaries solely when there are serious reasons to believe that they pose a threat to national security of the Turkey or if they have been convicted upon a final decision for an offence constituting a public order threat
The statements such as “made their living from illegitimate means during their stay in Turkey” (Art.54/1ç), “who pose a public order or public security or public health threat (Art.54/1d), “work without a work permit” (1-ğ) make life difficult for vulnerable groups such as sex workers, LGBTI people or people living with HIV. They frequently face the risk of repatriation as they often become a target for law enforcement officers.
In addition, the second paragraph of Article 54, which was added with the amendments made in 2016, states a removal decision may be issued in respect of applicants or international protection beneficiaries solely when there are serious reasons to believe that they pose a threat to the national security of Turkey or if they have been convicted upon a final decision for an offence constituting a threat of the public order.
Legal Remedies against Refoulement
It is possible to take legal remedies against refoulement. It is possible to lodge an appeal at the Administrative Courts.
This includes:
- The person, legal representative or lawyer can apply to the Administrative Court within fifteen days starting from the date of the notification of the deportation order.
- The applicant shall inform the deporting authority accordingly
- The decision of the court is incontestable.
- The foreigner shall not be deported within the period of filing the lawsuit, or in the case of appeal for judicial proceedings, until the conclusion of the proceedings, provided that the foreigner’s remedy is reserved.
- An individual application may be referred to the Constitutional Court upon the decision of the Administrative Court.
Administrative Supervision of Deportation Cases and Deportation (“Removal”) Centers
Persons who are subject to a decision of deportation may be subject to administrative supervision by the governorate if the following conditions apply:
Those who might escape and disappear,
- Those violating the rules of entry or exit to Turkey,
- Those who use fake or invalid documents,
- Those without an acceptable excuse while not leaving Turkey within the given period, Those who pose threats for the public order, public security or public health. People who are under administrative supervision are held at Deportation Centers (“Removal Centers”). The period of administrative supervision at the Deportation Centers cannot exceed six months.
However, this period may be extended to a maximum of another six months if the deportation process cannot be completed because the foreigner does not cooperate or fails to provide accurate information or documents relating to her/his country of origin.
The Ministry of Interior is informed about the persons that are determined to be put under administrative supervision.
If the Ministry finds it appropriate, the administrative supervision of these persons is stopped and they receive a Permission for Departure.
These foreigners may be required to reside at a particular address or to be notified in the desired form.
During the period of their stay in the Deportation Centers, the people who are subject to deportation must have access to some basic services:
- Emergency and basic health services,
- Access to and communication with relatives, notaries, legal representatives and lawyers,
- Access to a telephone,
- Dialogues with visitors and those country’s consular officers of which he/she is a citizen, and meetings with officers from UNHCR.
Furthermore, the best interests of children must be respected and families and unaccompanied children must be housed separately.
It must be ensured that children have access to education and trainings.
In this regard, necessary measures shall be taken by the Ministry of National Education.