Metin Çorabatır 01 November 2015
The humanitarian aspect of the Syrian crisis has made Turkey the world’s largest refugee-hosting country and has turned the tragedy into the most serious European refugee crisis since the end of World War II. The impact of this emergency on the EU’s migration policies has been tremendous. Both the Schengen Agreement and the Dublin Regulation need to undergo serious review and this is what the EU is now trying to do
There is no doubt that the root cause of the crisis is the failure of the international community to stop the violence raging in Syria since 2011. With its 2.3 million Syrian refugees, Turkey has also become the main source country for a secondary population movement toward Europe, particularly in the summer of 2015. It is increasingly becoming a transit country for refugees who risk their lives to cross the Aegean Sea and reach the EU. At least half a million Syrian refugees arrived in Greece by sea in 2015. This essay examines the reasons Turkey has become the second source country for refugees after Syria, and what measures Turkey and the EU should take to stop innocent people of all ages drowning at sea in 2016.
To understand recent developments, one first needs to look at the main characteristics of its asylum tradition, before examining how this is applied -- or not -- in the case of Syrian refugees. Turkey is a state party to the 1951 Convention Relating to the Status of Refugees. This convention is the main legal base of modern international refugee law. It provides: (a) The definition of the term “refugee”; (b) lists the rights of refugees; (c) determines the conditions for ending refugee status; and (d) sets limits for those who do not have the right to become a refugee. International refugee law was further developed by a series of conventions, declarations and human rights instruments, such as the 1967 Protocol Relating to the Status of Refugees, the African Union’s (AU) Convention Governing the Specific Aspects of Refugee Problems in Africa, the European Convention On Human Rights, and so on.
“International protection” is the key term in international refugee law. The process of being a refugee starts when a state is not willing or is unable to protect its citizens. When the state’s protection of the basic rights of a citizen ceases and as a result the person flees to another country to seek protection, this must be provided by the host country. Refugee status is an extraordinary status and international protection thus entails durable solutions -- durable in the sense that actions by states must form part of wider international protection mechanisms.
When a refugee -- a person who is under the protection of the international community due to the fact that their own state is violating her basic human rights -- willingly or unwillingly finds protection again from any state, international protection ceases. This can happen in three ways. First, the conditions resulting from human rights violations in the country of origin disappear and the refugee returns to the protection of the country of origin. This is called a “cessation of refugee status” and entails repatriation. A second durable solution is a situation in which such a return home is not possible. In this case, the country where the refugee seeks international protection is obliged to recognize the rights of the refugee as listed in the 1951 convention and the refugee starts to build a new life there. This durable solution is described as “local integration.” In some situations, the host country provides only temporary protection by accepting the refugee in its territory but refusing to recognize the rights described in the convention. In such a situation, the international community has to find a third country that may be willing to accept the refugee and allow the person to build a new life there. This is described as “resettlement.”
Turkey signed the 1951 Convention Relating to the Status of Refugees “with geographical limitation.” With this limitation, it limits its obligations to recognize the rights of refugees to those coming from European countries. The international protection Turkey provides for refugees fleeing countries outside Europe is limited to a temporary stay on Turkish territory, without enjoying many of the rights needed to help refugees build a new life. Therefore, the United Nations High Commissioner for Refugees (UNHCR) finds third countries in which to resettle Turkey’s non-European refugees. In short, the refugee and asylum system in Turkey works on the assumption that it will always be possible to resettle refugees in other countries and Turkey has, therefore, never developed experience in developing legislations and policies governing local integration.
When the first anti-government demonstrations in Syria started in March 2011, Turkey was in the middle of drafting its first ever asylum law, having received strong support from the UNHCR office in Turkey. This process started in 2007, when the Turkish government appointed two senior civil servants from the Interior Ministry to a new unit to lead the reform of the Turkish asylum system. In November 2007, when the unit was created, the total number of persons of concern to the UNHCR in Turkey stood at 19,000. The drafters decided to combine four original components of reform -- namely a law concerning foreign citizens, an asylum law, a law for the establishment of Turkey’s first civilian migration/asylum institution and a law for mass influx situations -- into one law called the “Draft Law on Foreigners and International Protection.”
The first group of 250 Syrian refugees fled to Turkey on April 29, 2011, amid the legal vacuum described above. The Turkish government was quick to announce its policy on Syrian refuges on the day of the arrival of the first group of refugees. The government said that Turkey will keep its borders open to Syrian refugees, meet their basic needs and respect the principle of non-refoulement and thereby not force them to return to Syria. This policy, applauded by the international community, had no domestic legal justification. At that time, a regulation from 1994 was still in force, which establishes a rule of keeping refugees outside the territory of the country. In the absence of the new law, the government called the Syrian refugees “guests of Turkey.” From the very beginning until the law came fully into force in March 2014, the Syrian refugees remained in Turkey as “guests” without any legal status.
In practical terms, Turkey responded to the influx of Syrians by establishing refugee camps close to border cities. The Turkish Prime Ministry’s Disaster and Emergency Management Directorate (AFAD) was tasked to run the camps. In order not to jeopardize the camp system, refugees are not permitted to make individual asylum applications. Such an application would open the door for resettlement to a third country through the UNHCR, due to the geographical limitation Turkey maintains to the 1951 convention. Since the middle of 2012, in addition to the number of camps and refugees, the number of Syrian refugees living outside the camps has increased very rapidly and by the end of summer 2015, had reached almost 2 million. Institutionally, Parliament adopted the Law on Foreigners and International Protection, and a new institution called the Directorate General of Migration Management was established in March 2014.
The new law, however, did not lift the geographical limitation and therefore maintained the temporary character of asylum in Turkey. As a consequence, those drafting the law had to invent new categories of international protection such as “applicant” and “conditional refugee,” which do not have an equivalent in international refugee law. Furthermore, the law makes a distinction between “applicants,” “refugees,” “conditional refugees” and “persons under subsidiary protection” on the one hand, and “persons under temporary protection” on the other. What distinguishes “persons under temporary protection” from those who are considered “persons under international protection” is the way they enter Turkey. Temporary protection is given to those who flee to Turkey in large groups, while those who are considered “persons under international protection” are supposed to arrive in Turkey individually or in small groups.
Turkey applies the 1951 convention only to a small number of refugees who come from European countries and refuses to grant other refugees that name. As a result, refugees who come to Turkey from non-European countries do not enjoy the rights of the Convention and local integration has therefore not been a durable solution for them. Historically, they are supposed to be resettled by the UN to third countries. By contrast, those who come to Turkey in large groups are put under “temporary protection” and are not allowed to apply for international protection. The durable solution for them, therefore, is to return to their home countries as soon as the conflict that forced them to leave ceases. Today, as a result of the huge numbers involved, neither resettlement nor return is an option for those who qualify under the individual asylum procedure or who are under temporary protection. Many have been obliged to live in refugee camps in Turkey since fleeing Syria, without the protection of refugee status.
This lack of refugee status is the main cause of the poor economic conditions of the 2.3 million Syrian refugees in Turkey, as well as the 270,000 other refugees from countries such as Iraq, Iran, Afghanistan and Somalia. In interviews, many such refugees have said that this lack of status and subsequent absence of hope for the future is cited as the main motivation for undertaking risky journeys to Europe.
What has not been done?
Although it has kept its borders open to victims of war and serious human rights violations in Syria and has spent almost $7 billion on the hundreds of thousands of refugees in its camps, Turkey has been unable to significantly improve the lives of the much larger group of urban refugees, with the exception of providing health and to a lesser extent educational support. Now, both the European and Turkish systems are on the verge of collapse and many refugees are determine to reach the EU, even at the cost of their lives.
In Turkey, it is not only the government’s policies but society in general that has failed to adequately manage this crisis. From the beginning of the Syrian crisis, opposition parties denied that the arrivals from Syria were refugees, and it remains the unfortunate case that some in Turkey are not prepared to extend support for the new arrivals due to racial prejudice. The leader of the main opposition party even went as far as to declare that accepting Syrian refugees into Turkey was the government’s biggest crime to date. In border cities where many of the refugees live, reports have emerged of violence targeting refugees, including peer-group bullying of children. In addition, there is a widespread myth that the government provides the refugees with TL 800 per month, further exacerbating hostility. Refugees have frequently been exploited by the business community as cheap undocumented labor. Meanwhile institutions like the Housing Development Administration of Turkey (TOKİ) have failed to provide solutions for the acute accommodation shortage.
What needs to be done?
The refugee crisis offers new opportunities for cooperation. The agreement between Turkey and the EU on an action plan, first discussed between German Chancellor Angela Merkel and senior Turkish political leaders in İstanbul in late October 2015, is one example of an attempt to jointly address the issue. The agreement aims to first support refugees in Turkey and the host Turkish community and second, to control irregular migration flows from Turkey to Europe via Greece. One mechanism designed to this end is an agreement by Turkey to readmit Syrians who have arrived in Greece after dangerous and irregular sea journeys.
An effective implementation of this agreement would require more cooperation between Turkey and the EU in fighting people-smuggling. Smugglers are reported to charge $1,000-1,500 for each person who wishes to go to Greece; multiplied by half a million, this constitutes a hugely profitable temptation. Turkey needs to improve its institutional capacity and legislation against people-smuggling and enforce readmission arrangements by opening new, orderly and legal channels for people to be resettled in Europe under various programs. Turkey should be supported in this by new EU funds to lift the “geographical limitation” and adopt a comprehensive integration law as soon as possible by recognizing the rights in the convention as a whole for all refugees. Turkey, the EU, the UN and refugees should all participate in new contingency planning and discuss what is needed, who can find money for these services and how to effectively implement the plans.
In that sense, the EU-Turkey agreement should be seen as a joint search into how to address the humanitarian tragedy, rather than a bargaining process full of inappropriate proposals. The prospect of opening new chapters of the EU accession acquis communautaire would offer a further incentive for courageous steps by Turkey to lift the limitation since one chapter to be opened could be Chapter 24 on asylum and migration, given that it has been many years since Turkey was first asked to lift the “geographical limitation” and apply the 1951 convention fully to allow refugees to live a dignified new life in its territory.
United Nations High Commissioner for Refugees (UNHCR) press release, Oct. 19, 2015. Accessed Oct. 19, 2015, http://news.yahoo.com/over-500-000-migrants-reach-greece-arrival-rate-100045052.html?soc_src=mediacontentstory&soc_trk=fb.
Yabancılar ve Uluslararası Koruma Yasası, 6458, April 4, 2013.
The humanitarian aspect of the Syrian crisis has made Turkey the world’s largest refugee-hosting country and has turned the tragedy into the most serious European refugee crisis since the end of World War II. The impact of this emergency on the EU’s migration policies has been tremendous. Both the Schengen Agreement and the Dublin Regulation need to undergo serious review and this is what the EU is now trying to do
There is no doubt that the root cause of the crisis is the failure of the international community to stop the violence raging in Syria since 2011. With its 2.3 million Syrian refugees, Turkey has also become the main source country for a secondary population movement toward Europe, particularly in the summer of 2015. It is increasingly becoming a transit country for refugees who risk their lives to cross the Aegean Sea and reach the EU. At least half a million Syrian refugees arrived in Greece by sea in 2015. This essay examines the reasons Turkey has become the second source country for refugees after Syria, and what measures Turkey and the EU should take to stop innocent people of all ages drowning at sea in 2016.
To understand recent developments, one first needs to look at the main characteristics of its asylum tradition, before examining how this is applied -- or not -- in the case of Syrian refugees. Turkey is a state party to the 1951 Convention Relating to the Status of Refugees. This convention is the main legal base of modern international refugee law. It provides: (a) The definition of the term “refugee”; (b) lists the rights of refugees; (c) determines the conditions for ending refugee status; and (d) sets limits for those who do not have the right to become a refugee. International refugee law was further developed by a series of conventions, declarations and human rights instruments, such as the 1967 Protocol Relating to the Status of Refugees, the African Union’s (AU) Convention Governing the Specific Aspects of Refugee Problems in Africa, the European Convention On Human Rights, and so on.
“International protection” is the key term in international refugee law. The process of being a refugee starts when a state is not willing or is unable to protect its citizens. When the state’s protection of the basic rights of a citizen ceases and as a result the person flees to another country to seek protection, this must be provided by the host country. Refugee status is an extraordinary status and international protection thus entails durable solutions -- durable in the sense that actions by states must form part of wider international protection mechanisms.
When a refugee -- a person who is under the protection of the international community due to the fact that their own state is violating her basic human rights -- willingly or unwillingly finds protection again from any state, international protection ceases. This can happen in three ways. First, the conditions resulting from human rights violations in the country of origin disappear and the refugee returns to the protection of the country of origin. This is called a “cessation of refugee status” and entails repatriation. A second durable solution is a situation in which such a return home is not possible. In this case, the country where the refugee seeks international protection is obliged to recognize the rights of the refugee as listed in the 1951 convention and the refugee starts to build a new life there. This durable solution is described as “local integration.” In some situations, the host country provides only temporary protection by accepting the refugee in its territory but refusing to recognize the rights described in the convention. In such a situation, the international community has to find a third country that may be willing to accept the refugee and allow the person to build a new life there. This is described as “resettlement.”
Turkey signed the 1951 Convention Relating to the Status of Refugees “with geographical limitation.” With this limitation, it limits its obligations to recognize the rights of refugees to those coming from European countries. The international protection Turkey provides for refugees fleeing countries outside Europe is limited to a temporary stay on Turkish territory, without enjoying many of the rights needed to help refugees build a new life. Therefore, the United Nations High Commissioner for Refugees (UNHCR) finds third countries in which to resettle Turkey’s non-European refugees. In short, the refugee and asylum system in Turkey works on the assumption that it will always be possible to resettle refugees in other countries and Turkey has, therefore, never developed experience in developing legislations and policies governing local integration.
When the first anti-government demonstrations in Syria started in March 2011, Turkey was in the middle of drafting its first ever asylum law, having received strong support from the UNHCR office in Turkey. This process started in 2007, when the Turkish government appointed two senior civil servants from the Interior Ministry to a new unit to lead the reform of the Turkish asylum system. In November 2007, when the unit was created, the total number of persons of concern to the UNHCR in Turkey stood at 19,000. The drafters decided to combine four original components of reform -- namely a law concerning foreign citizens, an asylum law, a law for the establishment of Turkey’s first civilian migration/asylum institution and a law for mass influx situations -- into one law called the “Draft Law on Foreigners and International Protection.”
The first group of 250 Syrian refugees fled to Turkey on April 29, 2011, amid the legal vacuum described above. The Turkish government was quick to announce its policy on Syrian refuges on the day of the arrival of the first group of refugees. The government said that Turkey will keep its borders open to Syrian refugees, meet their basic needs and respect the principle of non-refoulement and thereby not force them to return to Syria. This policy, applauded by the international community, had no domestic legal justification. At that time, a regulation from 1994 was still in force, which establishes a rule of keeping refugees outside the territory of the country. In the absence of the new law, the government called the Syrian refugees “guests of Turkey.” From the very beginning until the law came fully into force in March 2014, the Syrian refugees remained in Turkey as “guests” without any legal status.
In practical terms, Turkey responded to the influx of Syrians by establishing refugee camps close to border cities. The Turkish Prime Ministry’s Disaster and Emergency Management Directorate (AFAD) was tasked to run the camps. In order not to jeopardize the camp system, refugees are not permitted to make individual asylum applications. Such an application would open the door for resettlement to a third country through the UNHCR, due to the geographical limitation Turkey maintains to the 1951 convention. Since the middle of 2012, in addition to the number of camps and refugees, the number of Syrian refugees living outside the camps has increased very rapidly and by the end of summer 2015, had reached almost 2 million. Institutionally, Parliament adopted the Law on Foreigners and International Protection, and a new institution called the Directorate General of Migration Management was established in March 2014.
The new law, however, did not lift the geographical limitation and therefore maintained the temporary character of asylum in Turkey. As a consequence, those drafting the law had to invent new categories of international protection such as “applicant” and “conditional refugee,” which do not have an equivalent in international refugee law. Furthermore, the law makes a distinction between “applicants,” “refugees,” “conditional refugees” and “persons under subsidiary protection” on the one hand, and “persons under temporary protection” on the other. What distinguishes “persons under temporary protection” from those who are considered “persons under international protection” is the way they enter Turkey. Temporary protection is given to those who flee to Turkey in large groups, while those who are considered “persons under international protection” are supposed to arrive in Turkey individually or in small groups.
Turkey applies the 1951 convention only to a small number of refugees who come from European countries and refuses to grant other refugees that name. As a result, refugees who come to Turkey from non-European countries do not enjoy the rights of the Convention and local integration has therefore not been a durable solution for them. Historically, they are supposed to be resettled by the UN to third countries. By contrast, those who come to Turkey in large groups are put under “temporary protection” and are not allowed to apply for international protection. The durable solution for them, therefore, is to return to their home countries as soon as the conflict that forced them to leave ceases. Today, as a result of the huge numbers involved, neither resettlement nor return is an option for those who qualify under the individual asylum procedure or who are under temporary protection. Many have been obliged to live in refugee camps in Turkey since fleeing Syria, without the protection of refugee status.
This lack of refugee status is the main cause of the poor economic conditions of the 2.3 million Syrian refugees in Turkey, as well as the 270,000 other refugees from countries such as Iraq, Iran, Afghanistan and Somalia. In interviews, many such refugees have said that this lack of status and subsequent absence of hope for the future is cited as the main motivation for undertaking risky journeys to Europe.
What has not been done?
Although it has kept its borders open to victims of war and serious human rights violations in Syria and has spent almost $7 billion on the hundreds of thousands of refugees in its camps, Turkey has been unable to significantly improve the lives of the much larger group of urban refugees, with the exception of providing health and to a lesser extent educational support. Now, both the European and Turkish systems are on the verge of collapse and many refugees are determine to reach the EU, even at the cost of their lives.
In Turkey, it is not only the government’s policies but society in general that has failed to adequately manage this crisis. From the beginning of the Syrian crisis, opposition parties denied that the arrivals from Syria were refugees, and it remains the unfortunate case that some in Turkey are not prepared to extend support for the new arrivals due to racial prejudice. The leader of the main opposition party even went as far as to declare that accepting Syrian refugees into Turkey was the government’s biggest crime to date. In border cities where many of the refugees live, reports have emerged of violence targeting refugees, including peer-group bullying of children. In addition, there is a widespread myth that the government provides the refugees with TL 800 per month, further exacerbating hostility. Refugees have frequently been exploited by the business community as cheap undocumented labor. Meanwhile institutions like the Housing Development Administration of Turkey (TOKİ) have failed to provide solutions for the acute accommodation shortage.
What needs to be done?
The refugee crisis offers new opportunities for cooperation. The agreement between Turkey and the EU on an action plan, first discussed between German Chancellor Angela Merkel and senior Turkish political leaders in İstanbul in late October 2015, is one example of an attempt to jointly address the issue. The agreement aims to first support refugees in Turkey and the host Turkish community and second, to control irregular migration flows from Turkey to Europe via Greece. One mechanism designed to this end is an agreement by Turkey to readmit Syrians who have arrived in Greece after dangerous and irregular sea journeys.
An effective implementation of this agreement would require more cooperation between Turkey and the EU in fighting people-smuggling. Smugglers are reported to charge $1,000-1,500 for each person who wishes to go to Greece; multiplied by half a million, this constitutes a hugely profitable temptation. Turkey needs to improve its institutional capacity and legislation against people-smuggling and enforce readmission arrangements by opening new, orderly and legal channels for people to be resettled in Europe under various programs. Turkey should be supported in this by new EU funds to lift the “geographical limitation” and adopt a comprehensive integration law as soon as possible by recognizing the rights in the convention as a whole for all refugees. Turkey, the EU, the UN and refugees should all participate in new contingency planning and discuss what is needed, who can find money for these services and how to effectively implement the plans.
In that sense, the EU-Turkey agreement should be seen as a joint search into how to address the humanitarian tragedy, rather than a bargaining process full of inappropriate proposals. The prospect of opening new chapters of the EU accession acquis communautaire would offer a further incentive for courageous steps by Turkey to lift the limitation since one chapter to be opened could be Chapter 24 on asylum and migration, given that it has been many years since Turkey was first asked to lift the “geographical limitation” and apply the 1951 convention fully to allow refugees to live a dignified new life in its territory.
United Nations High Commissioner for Refugees (UNHCR) press release, Oct. 19, 2015. Accessed Oct. 19, 2015, http://news.yahoo.com/over-500-000-migrants-reach-greece-arrival-rate-100045052.html?soc_src=mediacontentstory&soc_trk=fb.
Yabancılar ve Uluslararası Koruma Yasası, 6458, April 4, 2013.
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