For years, asylum policy of Turkey is regulated not by legislative measures but by administrative ones. This situation has changed neither with the adoption of Settlement Act nor with the ratification of the 1951 Geneva Convention on the Status of Refugees.
I. From the establishment of the Republic to the acceptation of international obligations (1923-1951)
II. From the acceptation of international obligations to the mass refugee movements
III. From the mass refugee movements to the EU accession process
IV. From the EU accession process to today
It is important to discuss on the fact that Turkey has shaped its asylum policies with the arguments of “national security” and “public order” from past to today. The arguments of “national security” and “public order” have usually caused the violation of both national laws and international treaties. It is known that with regard to the refugee movements, the Turkish authorities used their “administrative competence” in the framework of “national security” and “public order” and approached to the immigration phenomenon in that way. As a result of this, it is not always helpful to discuss Turkish asylum policies within the context of laws.
I. From the establishment of the Republic to the acceptation of international obligations (1923-1951)
In this era, Turkey used the administrative competence distinctively due to lack of legislations and in the following years, it constituted its national asylum policy based on national security and commitment to Turkish identity. Because of the fact that the Settlement Act did not bring in a new dimension to the implementations apart from legalizing them, this era is not categorized separately as “from the establishment of the Republic to the Settlement Act”. In this era there is no relevant legislation for the people who has to take refuge in Turkey but who has no commitment to Turkish identity and culture.
With the establishment of Turkish Republic, the first immense immigration movement occurred. It was based on the agreement of the Turkish and Greek authorities during the Lausanne negotiations. Despite its forced migration character, the immigrants were provided protection based on their religious and ethnic commitment which makes this immigration movement different from today’s refugee movements. With the Turkish-Greek exchange of population, 384.000 people immigrated to Turkey and two millions of people immigrated to Greece.
The Settlement Act
In 1934, Turkey adopted the Settlement Act which is first legislation concerning immigration in its history. The Act gives an opportunity to the people, who is Turkish in decent and who is committed to Turkish culture, to settle in Turkey and acquire Turkish citizenship. According to article 4 of the Act, people who are not committed to Turkish culture will not be allowed to emigrate, as well as anarchists, secret agents, nomadic gypsies and the ones who are removed from the territory.
According to the article 5 of the Act, the situation of those people who are neither in Turkish decent nor committed to Turkish culture but forced to come to Turkey will be determined depending on the decisions of the Council of Ministers. This article legalized the governments’ having different attitudes towards forced migration.
As seen above, the Settlement Act has nationalistic characteristics. The Act let the governments’ appreciation determine issues concerning forced migration and it does not contain any provision granting asylum to forced migrants. The lack of definition of the concepts such as “refugee”, “emigrant”, “anarchist”, “nomadic gypsy” provide the administrative authorities with a wide margin of appreciation on the applications of those who migrate to Turkey. This eased the arbitrary and discriminative treatments to migrants while the criteria of being Turkish in decent and commitment to Turkish culture delineated migration to Turkey.
Some Happenings In This Era
Starting from 1933, many Jewish began to seek asylum because of the Nazi persecution and Turkey let many of them in its borders. Among these, many were professors, medicines, jurists, architects and artists. Thanks to these people, new faculties in universities started to educate youth; new labs in research centers founded, new architectural developments were reached in addition to many important advancements that were accomplished. For example, Ankara University Faculty of Language, Geography and History was founded by Bruno Taut whereas Ankara State Conservatory was established by Leopold Lewy. Geörge Röhde translated classical masterpieces. Clemenz Hoizmeister designed the building of the Turkish National Assembly. (Sığınma Hakkı ve Mülteciler (Right to Asylum and Refugees), p. 66)
Despite this positive attitude, 778 people in the ship called “Struma”, composed of 103 children, 269 women and 406 men, who were mostly Russian and Polish Jewish trying to escape from Nazis and reach Palestine, were neither granted asylum nor allowed to pass from the Bosporus when they arrived to the Turkish coasts of the Black Sea. After being made wait for 70 days, Struma’s being torpedoed by a Russian submarine and its being sank into the depth of the Black Sea with the corps of the people in it, is one of the most dramatic happenings in the history of the “refugee problem” (Sığınma Hakkı ve Mülteciler (Right to Asylum and Refugees), p. 66).
II. From the acceptation of international obligations to the mass refugee movements (1951-1988)
In the post world war period refugee problem arose with the displacement of many people due to instability and ideological problems. It was realized that refugee problems are only faced in the aftermath of wars; the period of office of UNHCR was extended and the time limitation in the 1951 Convention was abrogated with the 1967 Protocol.
Turkey, as being one of the 26 states that attended to the conference which negotiated the 1951 Convention, became one of the earliest signatories of it. Turkey signed the Convention by adding at a reservation concerning geographical limitation and hence accepted to provide protection to the European refugees that came to Turkey due to the happenings before January 1951. Turkey signed the 1967 Protocol in 1968 and it resumed its reservation on geographical limitation while accepting the abrogation on time limitation.
One of the biggest immigration movements of this period occurred between 1946 and 1970 from Yugoslavia to Turkey. 183,000 Turkish, some Albanian and Slavic Muslims took refuge in Turkey. However, Turkey did not treat these immigrants within the framework of the 1951 Convention or the 1967 Protocol.
By being a party to the 1951 Convention and the 1967 Protocol, Turkey accepted the international refugee definition and undertook international obligations. This is the fundamental characteristic of the era. Nevertheless, it is observed that Turkey granted asylum to the European refugees within the framework of the Settlement Act based on “Turkish decent”, instead of granting asylum under the 1951 Convention or 1967 Protocol.
III. From the mass refugee movements to the EU accession process (1988-1999)
In this era, Turkey faced mass refugee movements, both from Europe and other regions and this situation obliged Turkey to adopt a legislation concerning asylum. The first of these occurred in 1988 when there was serious conflict between Iraqi State and local forces and the Pesmergas captured Iraqi military quarter in Halepce. Thereon Iraq intervened Halepce with chemical weapons and this killed 5000 innocent people, many of whom were children and women. With the increase in the pressure of Iraq on Kurdish people, thousands of them took refuge in Turkey. In the beginning, Turkey was reluctant to accept these people, however then it settle them in three temporary refuge centers in Mus, Diyarbakir and Mardin.
Starting from 1984, Bulgaria implemented its assimilationist policies and put pressure to the Turkish and other ethnic identities. In 1989, Jivkov, the president of Bulgaria, wanted Turkey to open its border so that the Turcs in Bulgaria would leave. Hereon, 312,000 people took refuge in Turkey. Turkey, concerned with the increase in the numbers of refugees, started to implement visa on those coming from Bulgaria. Nevertheless, due to the bad conditions of refugees in Turkey and the betterment of Bulgarian state’s treatment to Turcs, 100,000 refugees returned
In the early 1990’s, about 20-25 thousand people from Bosnia took refuge in Turkey because of the instability and ethnic conflicts in Yugoslavia.
450,000 of the Kurdish asylum seekers, who had to flee from Iraq due to 1991 Gulf War, took refuge in Turkey while 1,3 millions of them took refuge in Iran. The refugees that came to Turkish border were not allowed to enter because of the excuse of “national security”. For this reason, the they had to live in the border with the aid of the local people in very harsh conditions. Iran let the 1,3 millions asylum seekers in and sought aid from UNHCR.
As seen above, in a period of 3 years, Turkey faced four refugee influxes, two from Iraq and two from Europe. Although it should implement the 1951 Convention provisions to the European ones, it did not. Its attitude towards the refugees from Iraq, was again ambiguous. As for the 1988 influx, it first did not accept to let thousands of refugees enter but later on it let them stay in temporary shelters. As for 1991 influx, it closed the borders and this attitude made hundreds of thousands of refugees in very harsh conditions. It is observed that Turkey’s attitude in the two influxes from Iraq were quite different.
The 1994 Regulation
In 1994, Turkey adopted an important regulation in terms of its history of asylum. This regulation, known as the “1994 Regulation” stemmed from the Kurdish refugee influxes of 1988 and 1991. The regulation consists of principles and procedures for the non-European asylum seekers. Its importance stemmed from the fact that Turkey accepted legal obligations and determined principles and procedures about the evaluation of asylum applications of non-European asylum seekers. Consequently, differences attitudes of the governments relating to the treatment of potential asylum seekers were discarded with the determination of the principles and procedures to be followed.
Despite its importance, the 1994 Regulation contained various restrictions. Among these deficits were the obligation to apply for asylum within five days, the interviews’ being made by the police officers, the negative decisions’ being reviewed by the superior administrative authority, the lack of explanation about the decisions’ being permitted to be challenged at the administrative courts.
In this era, it is observed that the asylum applications of non-European asylum seekers are evaluated by both the Ministry of Interior and UNHCR. Nonetheless, it is known that the Ministry generally abides the decisions of UNHCR. This situation stems from the fact that The Ministry lacks a mechanism that is able to evaluate the applications. However, this does not mean that there are no examples of the Ministry’s not abiding the decisions of UNHCR and therefore rejecting the application.
In 1997, Administrative Courts stayed the execution of two deportation decisions given by the Ministry, although UNHCR granted them “refugee” status. The decisions of the administrative courts revealed fact that the administrative reviews done by the superior authority (as expressed in the 1994 Regulation) lost its importance with the explicit provision of the Turkish constitution requiring the judicial review of all administrative acts. With these decisions, it is now possible to challenge the administrative decisions rejecting asylum applications at the courts.
In this era, Turkey received mass refugee movements and determined the principles and procedures to be followed regarding non-European asylum seekers. Up to 1994, Turkey lacked a legal regulation concerning non-European asylum seekers. The regulation’s and the judicial decisions’ changing the existing implementations makes this era important.
IV. From the EU accession process to today (1999…)
With Turkey’s being a candidate to membership of European Union in the 1999 Helsinki Summit and the declaration of accession partnership document, asylum policy of Turkey gained a new dimension. In the process of accession to EU, Turkey reviews its existing asylum policy and legal regulations; and tries to adapt them to the EU policies in accordance with the accession partnership document. What is excepted from Turkey is to adapt its visa regime to the one of EU, to provide efficient border control, to withdraw its reservation added to the 1951 Convention concerning geographical limitation, to establish refugee reception facilities and social support mechanisms. In order adapt its asylum policy to the one of EU, Turkey adopted National Program in 2003 and National Action Plan in December 2004 (as a result of the Twining Project).
In the national action plan, the establishment of various units and facilities – an expert unit in the field of asylum, country of origin information system, asylum reception centers in seven cities, return centers for the returning refugees and an academy for the training of the personnel – is addressed. In the national program and the national action plan, the withdrawal of the reservation concerning geographical limitation is accepted on the conditions of ‘ asylum influx’s not being encouraged’ and ‘burden-sharing’.
In the process of accession to EU, it is observed that Turkey is the stage of institutionalization in the field of asylum. Although the national action plan has positive aspects, it contains some points that can be described as matters of concern. It is not explicit what to understand from the condition of ‘asylum’s not being encouraged’ brought to withdraw geographical limitation. It may be thought that the new mechanisms that will be brought to adapt the EU Acquis can be used as a tool in order not to encourage asylum.
Despite the developments occurred in the Turkish asylum policy in the process of accession to EU, a mass movement occurred in this era had serious implications that concerns like “national security” will still prevent the refugees to enjoy their right to asylum. This mass movements was related to the refugees that flee from Iran to Iraq and granted refugee status by the UNHCR Office in Iraq. These refugees directed to Turkey by the UNHCR Official in Iraq due to the halt of resettlement process in 1999 and instability cumulated in 2003. When they entered Turkey, some of those were firstly included in the asylum process but their asylum applications were rejected before the conclusion of the process while some of those enter Turkey later were not even included in the process (The number of people that arrived Turkey from this group is known as 1204). These people who were granted refugee status also by the UNHCR Office in Turkey, could not be resettled to third countries due to the lack of Turkish government’s permit. Although Turkey claims that it does not recognize these people as refugees and hence does not have any responsibility about these people, the existing national and international regulations indicate the opposite. Nonetheless, Turkey declared that it can deport these people. It is known that this situation is not about these people’s refugee status but it is about the prevention of the entry of 5000 people from this group waiting in Iraq. Since 2000, the future of these 1204 has been undetermined and the rights that are enjoyed by asylum seekers in Turkey have not been granted to them. This concrete example implies that the condition, “not encouraging mass refugee influx”will be serious set on the enjoyment of right to asylum, a fundamental right of human.
In line with the adaptation to the EU Acquis, Turkey adopted Circular Order No. 57 on 22 July 2006. The Order addresses the principles and procedures to be followed related to the asylum applications and the aid (social, financial, health) that will be given to asylum seekers. In general, it can be said that the Order is prepared with a more negative perspective than the National Action Plan. It is sensed that it brings various restrictions especially with regards to judicial review. On the other hand, it brings important changes with regard to the aids that will be through the Mutual Aid and Relief Associations.
In the process of accession to EU, it is observed that Turkish asylum policy is exposed to serious changes and is in the stage of institutionalization. Lacking an integrated asylum policy, Turkey generally treats asylum seekers with the regulations concerning aliens. As a result of this, there is no legal regulation with regard to the status of asylum seekers and with different regulations concerning aliens, the situation of asylum seekers is tried to be clarified. In the process of accession to EU there are developments and it may be foreseen that the gaps of the asylum policy may be filled with the Refugee Act that will be adopted in 2012. There is a serious deficit of information about the contents of the act in question. The lack of NGO incorporation to the process of preparation of the Act is matter of concern.
Turkey is in the phase of bringing serious changes to its asylum policy. Immigration policy that was handled with the commitment to Turkish identity and culture gained a new dimension with the acceptation of the international definition of “refugee” and international obligations although there was no concrete changes in the implementations. Mass refugee movements outside Europe obliged Turkey to adopted the 1994 Regulation which determined the principles and procedures to be applied to the non-European asylum seekers. After this era, it is seen that Turkish asylum policy began to change with national jurisprudence as well as the case law of European Court of Human Rights. With the start of the process of accession to EU, it is observed that the asylum policy changed drastically. In this era, the asylum policy started to institutionalize. Despite developments, there are serious human rights concerns in this era. As explained above, Turkey determined its attitude towards the refugee movements depending on its concerns of “national security” for years. It is quite obvious that with the adoption of legal regulations, the attitude towards the refugee movements will be determined according to certain principles and procedures. Nevertheless, it should not be forgotten that various obstacles may be faced about the accession to the right to asylum if the concerns such as “public order” or “national security” are reflected to the legislations. It is known that the members of EU have very restrictive manners about the issues of asylum and protection of refugees and they prevent accession asylum with the excuses of border security. While shaping its new asylum policy, Turkey should take human rights and right to asylum into account and incorporate the NGOs to this process.
Translated by Ece Basaran