Legal Status of Iraqi Asylum Seekers in Turkey and the Dilemma of Identity Part 2
TANVI BHARGAVA
According to the Constitution, in Turkey, social and economic rights can be enjoyed by everyone, including asylum seekers, whereas political rights can only be enjoyed by the citizens of Turkey.
The Constitution of Turkey entails that it is compulsory for every child aged 6-14 to attend school, which is free compulsorily.[1] It is imperative for the schools to register the children of asylum seekers as well. Data analysed by the Statistics and data Recording Bureau at the Directorate of Security in 2007 revealed that more than a hundred Iraqi children were attending schools. This unveils that the legislation in place for these asylum seekers is effective. Any asylum seeker with a residence permit for more than six months can apply for a work permit regarding work policies in Turkey.
No doubt, the facilities, and opportunities available for asylum seekers are remarkable and helpful to them. However, there are numerous flaws and loopholes in the way they have been designed. Even though Iraqis have the opportunity to work, the cities they are allotted are small and have limited employment opportunities. Their economic situation is also overlooked because paying for ID cards, and residence permits may be beyond their financial capacity since they fled their home country, possibly with nothing.
According to the Turkish Citizenship Law, citizenship can be obtained by birth, marriage, descent, and naturalisation.[2] However, an outsider who resides in Turkey for at least five years and fulfils specific other criteria may obtain citizenship through naturalisation.[3] I feel like this contradicts the legislation which requires that asylum seekers need to be resettled in another country. We cannot rule out the possibility of asylum seekers not being resettled in a third country for five years. They may be able to use this to their advantage and, therefore, make the entire point of multiple registrations and limital legal assistance, redundant. I feel that this is a significant loophole in Turkey's procedural and substantiative standards in legally determining cases for asylum seekers. In fact, in a case[4] argued before the Supreme Administrative Court of Finland, a refugee recognised by the UNHCR in Turkey in 2001 ultimately got the chance 12 years later, to seek refuge in Finland. In 2013, the appellant claimed refugee status under the 1951 Convention and the 1967 Protocol, which the Court rejected. Therefore, he had to go back and live in Turkey as an asylum seeker.[5]
Another major loophole is that Turkey's system is designed so that it caters to individual asylum claims; however, when there is a massive influx, that creates concerns and questions the entire system. We can take the example of the influx of Iraqis who came in the latter half of the twentieth century and the first half of the twenty-first century. Although they did represent security concerns for Turkey, and other concerns such as costs, protection, rehabilitation etc. also cropped up, effective humanitarian assistance needed to be facilitated in order to set an example for the international refugee regime. We know that there is no clarity regarding 'asylum en masse' in the 1951 Convention because it primarily focuses on individual refugees' seekers.[6] Keeping all of this in mind, the Turkish government had adopted a 'preventive strategy' that essentially dealt with them assisting the displaced population inside the Iraqi territory by setting up camps there. However, if Turkey were to help the mass influx of refugees by setting up internal camps on its own border and granting asylum status to them there, that would create apprehensions, which also leads us to the problem of refoulement.
The principle of nonrefoulement is a principle that can be applied to everyone, including Iraqis who are not excepted as "refugees" but as "asylum seekers". According to Article 33(1) of the Refugee Convention, no state can expel a person to a territory where his life would be threatened.[7] This is considered a 'fundamental principle of international customary law.' [8] Since Turkey is party to the convention, it is obliged to adhere to this article as well and is bound by it. Therefore, if through these camps, they push back these 'asylum seekers' back to Iraq, then they would be violating this principle. In fact, in 1997 there were 189 "involuntary returns and expulsions" of Iraqis from Turkey. [9] This makes us question the policies towards these people who are made to go through this process first and are then deported.
So what can we take away from all of this?
Although Turkey has come a long way and has been consistent in integrating refugees from neighbouring countries, certain issues crop up which we have discussed above. The problem of establishing their identity develops in two aspects. First is the restriction of their status as 'asylum seekers' and second is uncertainty regarding time, transfer and settlement in third countries. This identity crisis further makes one realise the problem with the 'geographical limitation' that Turkey has adopted as part of its policy.
As analysed, the legal protection granted to Iraqis in Turkey is restricted to the status of an 'asylum seeker' to prevent refoulement. Although they are registered, the security that they are granted is limited. The legal structures that are in place only permit them to stay in Turkey with temporary status, and they always "live in expectation of departure." [10] Since they only have temporary status, they cannot avail all rights granted to Turkish citizens.
Even though Turkey does not have a refugee policy for anyone except for non-Europeans, they do not have a reason not to incorporate refugees from other countries. By granting them the status of an asylum seeker, their obligations towards these people are almost the same as any European refugee. There is uncertainty regarding their incorporation in a third country. They potentially spend years inside Turkey coping up with the lesser legal assistance and amenities they are given as compared their European counterparts who have started living as refugees and resettled lawfully.
With the humanitarian situation in Iraq, it is imperative that the government of Turkey frame a policy to incorporate large-scale refugees without deporting or pushing them back at the border. The concerns about drawing up better policies are ultimately the concern of identity. These Iraqis, including women and children, face compounded difficulties because even when they get refuge in Turkey, on the one hand, they face an identity crisis and face legal discrimination because they are 'asylum seekers. On the other hand, there is no security and promise of them ever settling in a third country where they can live without legal discrimination like a country's normal citizen can. What are they supposed to recognise themselves as and what exactly is their identity then?
The views expressed and suggestions made in the articles are solely of the authors in their personal capacity and the Center for Middle East Studies and O.P. Jindal Global University do not endorse the same.
[1] The Constitution of Turkey, Article 42.
[2] The Law on Citizenship, Turkey.
[3] Kaya (n2).
[4] Names were kept anonymous by the Court.
[5] Supreme Administrative Court Decision of June 24 2013, KHO:2013:113, Finland: Supreme Administrative Court, June 24 2013, available at https://www.refworld.org/cases,FIN_SAC,52414d444.html [accessed December 19 2020].
[6] Kemal Kirişçi, 'Disaggregating Turkish citizenship and immigration practices' (2000) Middle Eastern Studies, Vol. 36, No. 3.
[7] The Refugee Convention 1951, Article 33(1).
[8] A Human Rights Watch Briefing Paper, Iraqi Refugees, Asylum Seekers, And Displaced Persons: Current Conditions and Concerns in the Event of War (2003).
[9] United Nations High Commissioner for Refugees, "Iraq/Turkey: Turkey's Refugee Determination Procedure and Its Application to Iraqi Refugees; Turkish Government, and United Nations High Commissioner for Refugees (UNHCR), Treatment of Iraqi Asylum Claimants; Cases of Refoulement and Processing Times (May 1997 to July 1999)" (Refworld) <https://www.refworld.org/docid/3ae6ad4430.html> accessed December 19, 2020.
[10] Danis, Didem, 'Changing fortunes: Iraqi refugees in Turkey' (2011) International Journal of Contemporary Iraqi Studies. 5. 199-213. 10.1386/ijcis.5.2.199_1.