The situation in Turkey: a text by Oktay Durukan from the Helsinki Citizens’ Assembly

This is the text Oktay Durukan presented at the Public Event, Open Discussion in Thessaloniki: “People in mid-air: between deportation and asylum”.

Oktay Durukan from the Helsinki Citizens’ Assembly (HCA) in Istanbul, Turkey.

HCA is an Istanbul-based Turkish human rights organization, working on a diversity of issues. Since 2004, protection of refugees and vulnerable migrants in Turkey became one of our priority areas of activity. We run a relatively extensive, specialised program to provide free legal counselling and assistance to individuals who want to seek asylum protection in Turkey. We litigate to intervene in situations involving prolonged arbitrary detention and risk of refoulement. We also monitor state policies and practices, write reports on protection gaps. We organise trainings for lawyers and other professionals.

Who are asylum seekers present in Turkey

HCA: Currently there are about 19.000 refugees and asylum seekers registered with UNHCR in Turkey. About half of them are Iraqis, 25% Iranians, 17% Afghans and 7% Somalis, to name the largest populations. We have seen a sharp increase in the number of new asylum applications from ca. 5.000 in 2006 and 8.000 in 2007 to 13.000 in 2008.

This increase is largely due the growing numbers of Iraqis and Afghans who seek protection in Turkey.

While these are the figures relating to individuals who have actually entered the asylum system, we are extremely concerned that Turkey’s increasingly aggressive and effective interception and border control activities result in the denials of a significant number of refugees from accessing the asylum system.

Turkey: a “a country producing refugees”, “receiving country” or a “transit country”

In fact, Turkey is all of that, and that is the challenge. For the European public, Turkey is best known as a “country of origin” for migrants and refugees. Currently there are about 220.000 Turkish nationals worldwide, who either have some form of refugee status or waiting for a decision on their asylum applications. About 10.000 Turkish nationals seek asylum somewhere each year, with France, Germany and Italy among the leading countries of destination. I think these figures are a pretty good indication of Turkey’s continuing human rights failures.

At the same time, Turkey is a well-known major “corridor to Europe”, both for individuals who escape war and persecution and those who are displaced by extreme poverty and inequalities. Experts estimate the volume of these “mixed flows” over Turkey in hundreds of thousands each year. In our view, only a portion of the refugees who find their way to Turkey choose to apply for protection in Turkey or are given an opportunity to do so.

In this context, Turkey’s role as a “receiving country” becomes more and more critical, as it becomes more and more difficult for refugees to circumvent Europe’s formidable repertoire of migration control tools and policies, which sadly do not distinguish enough between those who have a legitimate need for international protection and those who left their countries for other reasons.

The main characteristics of the asylum system in Turkey

Turkey was one of the negotiators of the 1951 Convention, an original signatory. But it took advantage of a little-known caveat included in the Convention to adopt 1951 with a so-called “geographical limitation”, committing itself to provide protection only to those who were displaced “as a result of events in Europe”. This “geographical limitation” is still in place.

As a result, it is said that individuals who originate from Council of Europe member states are welcome to seek and obtain refugee protection in Turkey under the 1951 framework.

However, all the others – i.e. the so-called “non-Europeans”, which are the vast majority of people who seek asylum in Turkey – are not eligible to stay in Turkey long term as refugees. Instead, the Turkish Government offers them a very inadequate domestic protection status referred as “temporary asylum”, which allows them to stay in Turkey until the UNHCR can find a “durable solution” for them elsewhere. This means that UNHCR is expected to make an effort to resettle these individuals in third countries, which proves a challenging task for the agency.

This means that asylum seekers make two “parallel” applications. They apply to Turkish Government to get “temporary asylum” status. And they have to apply to UNHCR Turkey to get “refugee” status and resettlement assistance. The two determination procedures are based on the same eligibility criteria and generally harmonized, but not necessarily always so, which does occasionally lead to the refoulement of UNHCR-recognized refugees.

Asylum seekers are dispersed around the country in 30 so-called “satellite cities”, where they spend an average of 2-3 years pending determinations on their asylum request and resettlement proceedings. They are supposed to find their own accommodation on their own devices. They get very little assistance in terms of subsistence or healthcare. Legal employment is hardly a prospect, where many of them are forced into exploitative informal work arrangements, including sex work. On top of that they are expected to pay a so- called “residence fee” in order to get a residence permit. Turkey is a tough place to survive for a “temporary asylum seeker”.

The risk of refoulement in Turkey

There is an absolute risk. Our observation is that if a newly arrived asylum seeker  manages to find her way to UNHCR and register, generally speaking she will not  encounter problems registering a parallel “temporary asylum” request with the police.

Once she’s in the system, she’ll be relatively safe from being sent back. That is true for legal entrants as well as irregular arrivals, although we occasionally see UNHCR-  registered – even recognized – refugees fall through the cracks of the highly deficient Government procedure and find themselves at risk of being refouled.

The story is very different if you arrived irregularly and were intercepted by authorities  upon arrival, in the border region to the east or on your way to the west, or you were  arrested for irregular presence in one of the major cities, or apprehended while attempting  to cross to Greece by land or by sea. If you are caught before you had a chance to approach the UNHCR and enter the asylum system, the authorities will deny you access to the asylum procedure. They will simply refuse to process your asylum request.

Following a brief criminal procedure for illegal entry or attempted exit, you will find yourself locked up for deportation without being given an opportunity to argue your claims to be at risk of persecution.

In the rare case where you somehow manage to reach a legal assistance-provider and apply to domestic courts to challenge your deportation, the courts will fail to provide you a proper remedy. There’s a very good chance you shall be sent back to war or persecution.

In this context, the Strasbourg Court, the ECtHR is currently the only effective remedy  available to us to halt illegal deportations of individuals who express fear of persecution.

These arbitrary denials do not only mock Turkey’s international law obligations including those under ECHR, they are also in violation of domestic asylum rules. But this is not simply a matter of border control officials not doing what they are supposed to do. On  the contrary, our observation based on countless cases that came to our attention, and the knowledge we acquired over the course of our legal battles in refugee cases, is that this is a systematic policy instructed and endorsed by Turkey’s Ministry of Interior.

Another issue of serious concern to us in this connection regards the way in which these illegal deportations are carried out. To give you just one example, last year in April, in a highly publicised case, 18 Syrian and Iranian nationals, including 5 UNHCR-recognized refugees, were forced to swim across an unpatrolled stretch of the river that separates Turkey and Iraq. This is an instance of unilateral, “black” deportation of people to a third country they have no relation to. 4 of them drowned, including one of the UNHCR- recognized Iranians. UNHCR condemned the incident in a press release, based on testimony provided by survivors. To date, there has not been a serious investigation on the incident.

The EU integration process and its effect on Turkish asylum and migration policies

The EU accession agenda is the single most important driving force shaping the  direction of Turkey’s policies and practice in the area of asylum and migration. In 2005, the  Government adopted a comprehensive National Action Plan, and pledged to undertake a  series of measures to align asylum & migration policies and practice with EU standards,  including administrative and technical capacity building, training of staff and changes in  legislation. Currently, preparations are underway for a comprehensive asylum law to  replace the existing framework, which is drastically inadequate. At the same time, there  are two ongoing twinning projects for the establishment of six large-scale regional

“Reception Centers for Asylum Seekers” and two more “Removal Centers”, using mainly European money. On the critical  issue of lifting the “geographical  limitation”, the Government emphasises “burden sharing” as a precondition and so far refrains from making a concrete time frame commitment.

While the EU-accession related reform process presents an opportunity for Turkey to improve its deficient asylum system and raise standards, we share the serious concerns of  our ECRE partners regarding the direction of EU-level policies in this area, frommatters related to the operation of Frontex, failures of the Dublin System, and widespread and indiscriminate use of accelerated procedures and administrative detention for asylum  seekers and migrants.

We are also extremely concerned that civil society stakeholders, including the HCA, are  being entirely excluded from the consultations and preparations regarding the ongoing  reform process. In December last year, Turkey’s 10 leading human rights organizations  published a joint open letter to Ministry of Interior to denounce the “black listing” of HCA and several other critical NGOs from the ongoing supposed “NGO Consultation Meetings” organized by the Ministry. To date, there has been no change in the situation, and we continue to be excluded. As a result, the leading rights-based NGO stakeholders in the field collectively veto the process, until all of us are allowed to participate.

The state of negotiations with the European Commission on the “readmission agreement” with Turkey

That is indeed a big issue on the Commission’s agenda. So far, the Turkish Government has been stalling the negotiations on this one. Our impression is that Turkey  will want to keep this one shelved, along with the “geographical limitation” question, until a  time when they feel confident that EU accession is a realistic political prospect. Currently as you know, Turkey’s place in Europe remains controversial among the European political leadership as well as public opinion across the EU.

On a final note, speaking of readmission and the question of migration control generally, I  wish to refer back to my earlier comments regarding Turkey’s extremely worrying interception practices. It is vital to understand that the EU accession process provides the context in which we observe Turkey getting more and more effective and aggressive in its pursuit to stop irregular migration flows to Europe. By that I do not only refer to the “bad example” effect of what’s going on in Greece, Malta, Italy and so forth. I also refer to the ways in which Turkey as an accession country is being motivated and geared up to become a formidable partner in Europe’s so-called “battle against illegal migration”.

April 2008 “Unwelcome Guests” report on the detention of refugees in Turkey: http://www.hyd.org.tr/?pid=610 EXECUTIVE SUMMARY

Introduction

As European countries bordering the Mediterranean have introduced increasingly harsh measures to stem the flow of irregular migration across their frontiers, Turkey has become the main crossroads for flows of migration from Africa, Asia and the Middle East into Europe. At the same time, as part of Turkey’s accession process, the European Union has stepped up pressure on Turkey to prevent the movement of migrants, asylum seekers and refugees into Europe.  As a result of Turkey’s efforts to limit irregular migration flows, thousands of foreign nationals without travel documents, refugees among them, are detained while attempting to either enter or exit the country illegally.  They are primarily held in detention centers, which are officially referred to as  “foreigners’ guesthouses.”

Until now, no report has been published regarding the conditions faced by detained refugees in Turkey. This, in part, is due to the fact that Turkey’s Ministry of Interior (MOI) has prevented international and domestic NGOs from entering guesthouses, whether for the purpose of carrying out monitoring activities or providing assistance to detainees. As Turkey continues its efforts to stem the flow of irregular migration, it is critical that its practices regarding the detention of foreign nationals, and in particular, refugees, are transparent, and comply with international standards.

Of all the foreign nationals detained in Turkey, a certain critical proportion are refugees – that is, as defined in this report, anyone who intends to apply, has applied for, or has been granted “refugee status” by a decision-making body, which in Turkey, is either the UNHCR or MOI. Most refugees who are detained are initially criminally charged for either illegal entry or exit from the country, or failure to comply with requirements of the “temporary asylum” system. However, for the majority of their time in detention, refugees are typically held for administrative purposes, including to have an asylum application reviewed or to be processed for deportation.

Summary of Findings

The interviewees reported a range of limitations with regard to their ability to access their procedural rights in detention.  In particular:

• Refugees reported being detained for the duration of the temporary asylum process, rather

than being transferred to a “satellite city” upon notifying police of the intention to apply for asylum.

• Detained refugees face barriers to applying for asylum, including:

o a lack of information about asylum procedures; and

o refusal by police to take asylum applications.

• Those held in airport transit zones are barred from applying for asylum altogether.

• Inability to access asylum procedures has led to instances of illegal deportation, or refoulement.

• None of the interviewees were informed of the reasons for their arrest or their rights in detention.

• Many faced indifference or aggression from the police when they asked for this information.

• No interviewees were given information about the expected length of their detention, leading to feelings of hopelessness and depression.

• Refugees have no practical recourse to judicial review to challenge the legality or the length of their detention.

• Detained refugees have only very sporadic access to lawyers and are not able to receive visits from other NGOs or advocates at all.

• Refugees held in transit zones in Turkey’s airports have no access at all to lawyers, the UNHCR or other agencies or advocates.

• Those who apply for asylum while in detention tend to be detained for longer periods (usually more than six months) than those who have applied beforehand (averaging one to three months).

The interviewees also reported significant deficiencies regarding conditions in detention. In particular:

• Adults and minors, as well as convicted criminals and non-criminals, are regularly housed in the same areas. Only men and women are segregated.

• Overcrowding is common, often leading detainees to sleep on the floor with inadequate bedding.

• Facilities have windows, but are cold in winter and hot in summer.

• Overcrowding exacerbates poor ventilation, especially where smoking is permitted.

• Bathrooms and sleeping areas tend to be dirty and insect-infested.

• While most guesthouses contain showers, hot water is not always available.

• Detainees regularly have to pay for their own toiletries and towels at inflated prices. Some must buy cleaning supplies to clean living areas.

• Meals are lacking in nutritional and caloric value. Some facilities do not serve food on the weekend.

• Safe drinking water is not freely available.

• Detainees, who can afford to do so, are forced to get food delivered—at highly inflated prices—from local shopkeepers.

• Generally, no exercise or recreation is available to detainees.

• Books are unavailable.

• Medical services in guesthouses are universally inadequate.

• Barriers to receiving medical and mental health treatment include:

o the outright denial of services by police;

o the high cost of treatment and medication; and

o a lack of available interpreters.

• Outside communication is limited due to:

o the high cost of using public telephones;

o the inability to receive calls;

o a lack of privacy; and

o minimal access to visitors.

• Detainees universally witness or are subject to varying degrees of verbal and physical  abuse by police officers.

• Interviewees generally reported that police officers are indifferent to refugees, and at

worst, they engage in unjustified physical violence, including beating and slapping.

• The most serious allegations of police mistreatment include falaqa—beating the soles of the feet—and being forced to stand naked in front of other detainees and officers.

• Unaccompanied minors are regularly detained in adult guesthouses until their age has been confirmed and they can be sent to detention facilities for minors.

• Age determination procedures do not account for margins of error, or the psychological maturity of the applicant, and do not provide the minor the benefit of the doubt regarding  his or her age.

• Children of refugees are regularly separated from opposite sex parents or guardians.