Joint Assessment: Proposed Amendments in the Law on Foreigners and International Protection of Turkey

Human Rights Center of Antalya Bar Association, Earth is Home Association, International Solidarity Association, Association for Migration Research (GAR), Migrant Solidarity Association, Rights Initiative Association, Association of Bridging Peoples, The Research Center on Asylum and Migration (İGAM), Human Rights Association (İHD), Human Rights Agenda Association (İHGD), İzmir Association for Solidarity with Syrian Migrants, Izmir Bar Association, Chaos GL, Kırkayak Culture, Media and Refugee Rights Association, Association for Solidarity with Migrants (Mülteci-DER), International Refugee Rights Association, Van Bar Association, Citizens Assembly, Yuva Association

have prepared

JOINT ASSESSMENT

On

Articles 73 to 91 of the Draft Bill order number 144“Amending certain pieces of Legislation and Decree in Force of Law numbered 375” that was presented for debate in the Plenary of the Turkish Grand National Assembly on 26 November 2019 foreseeing and amendment in Law 6458 on Foreigners and International Protection

4 December 2019

Articles 73 to 91 of the Draft Bill in question foresee certain changes in the Law 6458 on Foreigners and International Protection (LFIP). While some of the amendments are considered as positive, some are considered as in violation of the Constitution and international human rights law and standards; including unclear wording that might cause some violations and arbitrary practices. At the outset, we would like to indicate that we appreciate the amendments that will be positive for fundamental rights and freedoms and the supremacy of law.

Article 78 of the Draft Bill, proposes to delete “with the exception of ones within the scope of (b), (d) and (k) subparagraphs of the first paragraph and second paragraph of Article 54” from the last sentence of Article 53 (3) that reads “Without prejudice to the foreigner’s consent, the foreigner shall not be removed during the judicial appeal period or in case of resort to the judgement with the exception of ones within the scope of (b), (d) and (k) subparagraphs of the first paragraph and second paragraph of Article 54”. This provision added to the Law 6458 on Foreigners and International Protection with an amendment made in 2016 has created a vital violation of both international law and national legislation. Deletion of this statement from the LFIP in line with Judgement 2016/22418 of the Constitutional Court dated 30 May 2019 is a requirement of being a state of law and reestablishment of the link to fundamental rights and freedoms such as access to judiciary, effective access to asylum, right to liberty and security, prohibition of torture, family unity and the principle of non-refoulement foreseen in national and international law and this amendment foreseen with the Draft Bill is appreciated.

This amendment, should be interpreted together with Article 54 (2) (Amendment: 3/10/2016-KHK-676/36 adopted 1/2/2018-7070/art. 31) A removal decision may be issued at every stage of international protection proceedings in respect of international protection excluding the ones within the scope of (b), (d) and (k) subparagraphs of the first paragraph and second paragraph of Article 54” and Article 54(2) should be deleted from LFIP. Thus the principle of Non-Refoulement that is a mandatory provision and absolute principle in international and national law (Article 33 of the Geneva Convention Relating to the Status of Refugees and Article 4 of the Law on Foreigners and International Protection) and the right to life and prohibition of torture (ECHR Articles 2 & 3; Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) shall be protected. Besides, with the abolition of Article 54 (2) of the LFIP, the contradiction between this Article and Article 4 of LFIP and Article 78 of the Draft Bill shall be eliminated.

Besides, provisions foreseen in Article 82 and 85 with respect to the ban on keeping unaccompanied minors in removal centers and enforcement of the provisions of Law 5395 on Protection of Children for unaccompanied minors the moment their application is received, have both been appreciated.

Yet, the phrase “when their application is received” should be amended with “as of the moment of identification” for facilitation of the protection of minors who do not have the opportunity to make an application or for minors who are unaccompanied and have to be protected but do not make an application.

Similarly, in Article 86, it is proposed that the “six months” wording should be deleted from the sentence “the international protection applicant is issued an International Protection Applicant Identity Document for six months”. The reason for the proposal is shown as the administrative and financial burden of the requirement to renew this document, and if adopted it is understood that the duration for the international protection application document will be longer than six months. This is a positive development for those who have to apply for a new document every six months, have to wait to receive a new document, and cannot benefit from rights and services of holders of international protection applicant status including healthcare services.

Also regulated in Article 86, for applicants whose application have been found as inadmissible, or whose applications are considered under the accelerated assessment procedure, the proposal to issue a document for International Protection Applicant Status or not to cancel their existing documents until a final decision is passed, is also considered as a very positive development.

Thus, as aimed, those individuals who are in this position will be able to benefit from fundamental rights and services until a final decision is reached and the provision creating serious vulnerabilities will cease to exist.

In addition to all these positive amendments that are proposed, other proposed amendments may cause important violations, victimization and arbitrary practices.

Especially,

• Limitation of the appeal period to removal decision from fifteen days to seven days included in Article 78,
• “International protection applicants apart from those with special needs or ones approved by the Directorate General to be excluded from the General Health Insurance Scheme one year after registration” that could affect people with no healthcare coverage or ability to pay included in Article 90,
• “Money belonging to the individuals against whom there is a decision for removal to be recorded as income to the treasury” included in Article 83,
• “Those that would be considered as unacceptable passengers to be kept waiting in allocated areas at border gates during the processes that could take months” included in Article 73,

of the Draft Bill are creating serious worry with respect to fundamental rights and freedoms and supremacy of law.

We are requesting the support of you as a distinguished Parliamentarian so that the proposed amendments below to “Certain Pieces of Legislation and Decree 375 In Force of Law with Draft Bill Order Number 144” are carried out in accordance with fundamental rights and freedoms and the principle of state of law through debates in the Plenary Assembly.

Article 73: (3) Foreigners covered under this article shall stay at the designated areas at border gates until the process in relation to them is finalized.

The proposed amendment under this article is in violation of Article 13 of the Constitution. Article 13 of the Constitution- (Amendment: 3/10/2001-4709/art.2) Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence.

Besides, in line with the Abdolkhani and Karimnia v. Turkey judgement of ECtHR on the safeguards and procedures to be followed, it is evaluated that the article with its new version will create new violations with respect to procedural safeguards, period, conditions and methods of appeal. Right to liberty and security that is amongst the fundamental rights, shall be restricted with the draft bill for an indefinite period and unclear area, and the appeal mechanism to such a decision is not regulated. The phrase “until process is finalized” is unclear and unforeseeable. It is also not clear what these areas shall entail, and whether these closed areas will abide by international standards or not.

Foreigners who are under the category of unacceptable passenger are already having difficulty in accessing lawyers or courts under the current conditions. The maximum duration of keeping these individuals under supervision in places with insufficient capabilities and especially airports should be identified, yet the proposal foresees them to be kept until their processes are finalized. This could mean that the person could be kept there while accessing international protection procedure, the assessment of this application and exhaustion of remedies on this decision and all decisions that might be taken in relation to him/her. These individuals who are kept under supervision deprived of their liberty should be provided with a place to sleep and put their belongings, basic hygiene supplies, suitable toilet and washing facilities, clean and open air, exercise, food and medical services. Yet it seems quite improbable that such facilities could be provided at border gates or airports.

Article 74: It is proposed that the phrase ‘being outside Turkey’ included in paragraph one of Article 9 titled Entry Ban to Turkey of Law 6458 is deleted.

With this, the coverage of the Entry Ban to Turkey shall be expanded to foreigners who are already in Turkey, and thus even if they are in Turkey the ban on entry shall be extended to foreigners who might endanger public order and public security. Yet in the content of this legislation under the sovereignty of the state principle, there could be judgements for removal for those individuals who are not wanted in the country. Thus if the individual is in the country he/she could be deported, yet if the person is already in the state, there is no clear legal ground to the entry ban of that individual. The person could be banned to enter after he/she is deported, but taking a decision of banning the entry of an individual who is in the country without a removal decision contradicts the rational and the wording of the legislation.

Article 77: It is proposed that the phrase in Article 46 (1) of the LFIP concerning governorates authority to issue humanitarian residence permit and extension of this permit “Getting the approval of the Ministry, a maximum duration of one year at a time” as “to be restricted to periods that shall be identified by the Ministry and with the approval of the Directorate General”. The reasoning behind this amendment is explained as reducing bureaucracy, conducting of transactions at the central and peripheral organization in a more productive and accelerated manner, and foresees the extension of humanitarian residence permit for a period of more than a year. Extending the duration of the humanitarian residence permit for more than a year will reduce the burden on the Directorate General of Migration Management that is under a big workload and holders of this permit in terms of time and effort. The lack of a clear duration foreseen for the humanitarian residence permit, bears a quality of harming the clear and transparent transactions that are necessary for a state of law that will not permit any arbitrariness on the actions of the executive as all state organs. Therefore in humanitarian residence permit “there should not be any flexibility according to the conditions of the day” as is further elaborated in the reasoning and these periods should be clearly defined in law. The article should be deleted from the draft bill in its current format.

Article 78: The proposal is to amend the duration for appeal against the removal decision as included in the first sentence of Article 53 (3) “The foreigner, his legal representative or lawyer may appeal to the removal decision to the administrative court within 15 days as of the date of notification” to seven days. This amendment has the highest risk of causing violations within the whole draft bill.

The judicial appeal to the removal decision is directly related to the non-refoulement principle and protection of refugees, and the obstacles and restrictions before this right could cause irreparable damage for those deported to countries where they could face persecution. Those individuals kept at removal centers under administrative detention, most of the time do not have the opportunity to be informed about the decisions against them and the methods of appeal in a language they comprehend abiding by the procedure, do not have automatic access to lawyers, face language and other types of problems in accessing a lawyer, and have limited communication with the outside world, barely have the opportunity to access justice within the current fifteen day appeal deadline. Even if this is possible, the lawyer needs the help of a certified interpreter to be able to communicate with the individual, obtain a power of attorney, obtain information and documentation pertaining to his/her client and the origin country, prepare a file and submit this to the court. In the current practice this is not sufficient, let alone when this is reduced to seven days this will seriously hinder access to justice. Administrative detention is a method that should be resorted only if it is obligatory and as a last resort, and LFIP foresees the governorate to review the necessity of the detention every month in a regular manner and need not wait thirty days if deemed necessary. In practice however, the duration for administrative detention reaches to six months and frequently even one year.  The reasoning for the proposed amendment, that is the restriction of liberty of the foreigners kept at removal centers during the period of appeal, could be overcome by an efficient assessment whether administrative detention is necessary or not and using alternative methods to administrative detention. Limiting the duration for appeal to seven days from fifteen days is only going to harm the right to access justice that is already limited.

Article 79: The proposed amendment is to add “those who attempt to violate” to the wording of Article 54 paragraph 1 (h) of the LFIP titled Persons Subject to a Removal Decision “Those who violate the principles of legal entry into or exit from Turkey”.

It is an accepted fact that refugees who are under the risk of persecution in their own country might be obliged to enter another country through irregular (that is illegal) methods. Indeed Article 3/1 of the 1951 Geneva Convention Relating to the Status of Refugees states that “refugees” and Article 65/4 of LFIP states that  “applicants of international protection” cannot be imposed any penalties on account of their illegal entry or presence in the country. It is also known that many people that have causes/reasons for asylum try to go to Europe through irregular means due to their failed attempts to record their refugee status in Turkey or due to lack of permanent status. Therefore people violating provisions of legal entry/exit or attempting to violate them being faced with an irreparable removal measure, will also bring the violation of non-refoulement principle that is a mandatory and absolute provision of international law and the violation of the right to asylum. Therefore before taking a decision for removal, an efficient assessment of the individual case under the non-refoulement principle (LFIP article 4) and LFIP article 55 (exemption from removal) should certainly be made. Both in the current format of Law 6458 and the Proposed Amendment this needs to be taken into consideration. Besides, the concept of “attempting violation” is a terminology of criminal law. It is not clear as to how an administrative sanction will determine “attempt”. It is also open to extensive interpretation, and the act of a refugee to purchase a ticket to a province in the coastal area, or be present in an area close to the border could be considered under this provision, although bearing no attempt to violate and could lead to a removal decision. Therefore it is thought that the proposed amendment could lead to arbitrary practices. It is necessary to delete this addition in the draft bill.

Article 80: With this amendment a new provision is envisaged to analyze the electronic and communication devices of foreigners under administrative detention to identify their nationality. Yet there is no limitation as to who will implement this provision and under what conditions. As ordered in Article 134 of the CPC, in an investigation pertaining to a criminal offense, where there is strong suspicion of criminality based on concrete evidence, and where evidence could not be obtained otherwise, there could be a search authorized by the judge or under emergency circumstances by the public prosecutor on the computer and computer programs and computer logs of the suspect, to copy and decipher the computer records. In this case, the decision of the prosecutor should be presented to the judge for approval within twenty-four hours, and the judge needs to reach a decision latest within twenty-four hours. Accordingly, for the electronic and communication devices of a foreigner under administrative detention to be analyzed, there has to be doubt of criminality, and the analysis should be conducted by law enforcement with a court order as regulated in Article 134 of the CPC. All searches that shall take place outside the scope of this will constitute a criminal act against private life as stipulated in Article 20 of the Constitution and Article 8 of the ECHR. A search order basing just on the fact of being a foreigner will not be legitimate and will be in violation of anti-discrimination principle.

Article 81: With this article new practices alternative to administrative detention is foreseen. One of these is electronic surveillance. Electronic surveillance is a measure under the criminal procedure as an alternative measure to detention for the convict or the suspect to be monitored with electronic methods and instruments in the society, be kept under supervision and monitoring. The alternative methods to administrative detention are foreseen to make the individual deprived of his liberty by the administration as a last resort. Under migration management when individuals believe they are being treated as convicts although they have not committed any crime, bringing electronic surveillance as an alternative to administrative detention might cause a greater belief of injustice vis-à-vis the individual and his social circle. There should also be the right to appeal to a judge. Besides the fact that an independent institution is not foreseen to make this decision is unacceptable in international law. Decision for such a measure should only be taken by a judge after having taken the statement of the person in question and having made an assessment of his/her conditions.

In addition to this, the methods seen as alternative to administrative detention such as family based repatriation, repatriation consultancy, involving in public services based on volunteerism are not clear in terms of content and aim. What is meant by repatriation consultancy, what will happen if the person for whom the consultancy services are provided still does not want to return; what is meant by family based repatriation, will the family members against whom there is no such decision be also deported, how should the voluntary public services and mandatory public service be differentiated from each other should be clearly delineated with clear and open legal provisions. These cannot be left to secondary legislation. The legal methods to be followed if rejected should also be made more clear.

In family based repatriation and repatriation counseling, there should definitely an efficient analysis of the non-refoulement principle and this analysis needs to make sure that the repatriation is voluntary, safe and based on correct and contemporary information.

Article 83: The amendment proposed for Article 60/3 of Law 6458 LFIP indicates that the travel costs for removal shall be born by the foreigner, and if the individual does not have sufficient money, the expense shall be born by DGMM yet in the continuum of the same article it states “money belonging to the foreigner, apart from the amount that is required to meet the basic needs identified by the Directorate General, will be recorded as income to the Treasury”.

In the “Guidelines for Confiscation and Seizure” published by the Ministry of Justice confiscation is defined as ending the right to ownership of part or all of the property of the convict as a result of a crime committed and transfer of ownership to the state. Therefore recording the money of the foreigner to treasury as income as suggested in Article 83 of the Draft Bill is a clear confiscation. Yet, TPC defines confiscation as a security measure and as for confiscation of belongings only point out “property that is used for committing an intentional offence or is allocated for the purpose of committing an offence, or property that has emerged as a result of an offence shall be confiscated. Property that is prepared fort he purpose of committing a crime shall be confiscated, if it presents a danger to public security, public health or public morality” (TPC Article 54 (1)). When income is seized “Material gain obtained through the commission of an offence, or forming the subject of an offense or obtained for the commission of an offence and the economic earnings obtained as a result of its investment or conversion, shall be confiscated.” (TPC Art. 55(1)). In both cases the confiscation should be the decision of a judge. The amendment foreseen with the draft bill to the LFIP bears an unlawful character because the confiscation is not based on lawful causes and is not based on a judge’s decision. In addition to this, confiscating money of the individuals who are about to be deported could leave them in a materially and morally difficult position, because they might not be able to meet their urgent and basic needs, and may not be able to travel to where their family resides. The state can only bring a limitation of use temporarily with the precondition of returning it back. Yet recording as income to the treasury is a violation of right to property. Besides, the problems that might arise as a result of this act in their living condition might also create conditions of violation of Article 3 (ill treatment) of the ECHR.

Article 90: Draft Bill proposes to amend the sentence in Article 89 of the LFIP ‘Those who have no medical insurance and do not financial means to pay, are subject to the provisions of Law 5510 Social Security and Universal Medical Insurance’ as ‘to be limited to one year after the registration for international protection’.

Such a provision would limit the right to health of thousands of individuals who cannot obtain work permits, have no regular income, and who are subject to physical and psychological problems because of forced migration. Exclusion of those international protection applicants and holders who pay their contribution under General Health Insurance scheme for the healthcare services they receive from the coverage of general health insurance because of this draft bill, or those whose international protection application is rejected-despite the fact that there is no final judicial decision- will cause serious injustice and violations.

In the context of The Covenant on Economic, Social and Cultural Rights and the European Social Charter to which Turkey is a party to restricting a civil right for a period will be a violation. This may have an effect of aggravating living conditions and force repatriation.

If enforced this amendment will cause many refugees not to be accepted to hospitals, sent back or not treated and may cause serious health care problems to be experienced, just like the period before the adoption of the Law on Foreigners and International Protection in April 2016 and even cause deaths at the doors of the hospitals. Should this amendment be accepted there would be a serious violation of a fundamental right that is the right to health.

Article 91: The amendment proposed for Article 102 of the LFIP foresees an administrative fine for those who provide accommodation and housing, and rent their houses to unregistered foreigners just for humanitarian reasons or unknowingly. In many provinces where registration for Temporary Protection and International Protection is not done in practice, foreigners cannot complete registration even if they want to and repeatedly attempt to do so, forcing these people from their accommodation, not renting property to them just because they are not registered will force them to live on the street or cause an excessive increase in rent/unregistered income.

The proposal with this amendment is making the decision on one’s own property a criminal act, and will lead to the violation of right to property through legislation.

We the institutions listed below, would like the assessment we have shared above on amendments foreseen in Law 6458 Foreigners and International Protection included in Articles 73 to 91 of the “Draft Bill order number 144 proposing amendment on Certain Pieces of Legislation and Decree number 375 in Force of Law” to be taken into consideration.

Yours Sincerely,