The International Refugee Rights Association (IRRA) and the Global Detention Project (GDP) welcome the opportunity to provide information relevant to the list of issues prior to the second periodic review of Türkiye with respect to the implementation of the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families during its thirty-fifth session. This submission focuses on the state party's laws and practices concerning detention for immigration-related reasons and is made in light of the CMW's recent authoritative General Comment No. 5 on migrants' rights to liberty and freedom from arbitrary detention.[i]
1. INTRODUCTION: MIGRATION-RELATED DETENTION & ENFORCEMENT IN TÜRKIYE
1.1 According to UNHCR, Türkiye currently hosts four million refugees and for the last seven years, has hosted the largest number of refugees worldwide. At the end of 2020 there were 3.6 million Syrians granted temporary protection in Türkiye and 322,000 refugees and asylum seekers of other nationalities, mainly from Iraq, Afghanistan, and Iran.[ii]
1.2 Türkiye has one of the world's largest immigration detention systems, which is comprised of "removal centres," ad hoc detention sites along its borders, transit facilities in airports, and police stations in 27 different locations, three of which are in Istanbul.[iii]
1.3 Turkish law specifies that decisions to hold foreigners under administrative detention must be based on specific criteria, including conditions of necessity and the possibility of deportation. An administrative detention decision can last for up to one year (six initial months plus a maximum of six additional months). However, once released after one year, many migrants are re-detained creating a loophole in the execution of these limits.
1.4 After the arrest of irregular migrants by law enforcement agencies, their fingerprints and photographs are recorded in a common database shared by the General Directorate of Security, the Gendarmerie General Command, the Coast Guard Command, and the Directorate of Migration Management. Foreign nationals who are brought to a removal centre are interviewed to determine their identity and nationality and whether they have travel documents. Once the relevant legal process is completed, deportation procedures are carried out if deemed appropriate. However, in some cases it is not possible to deport detainees because Türkiye lacks removal agreements with the relevant country.
1.5 The number of people held in immigration detention in Türkiye has risen dramatically in recent years: from 1,750 in 2015 to 20,000 people as of May 2022. 320,172 foreigners have been deported from Türkiye since 2016. Although deportations dropped during the COVID-19 pandemic, since 2021 return rates have risen again, with a 74 percent increase in deportations in 2021 compared to the previous year.[iv]
1.6 Turkish law (Law 6458 on Foreigners and International Protection (LFIP) (2013) Articles 57 and 71) provides for consideration of non-custodial measures as part of immigration adjudication procedures, which can include residence at a designated address and reporting requirements. However, observers contend that these measures are not widely used.[v]
1.7 The Turkish government did not delay or stop issuing administrative detention orders during the COVID-19 pandemic, and regular reporting to the Provincial Directorate of Migration Management as an "alternative to detention" was suspended. Although the Turkish Parliament passed a law in April 2020 allowing for the release of up to 100,000 prisoners from Turkish jails in response to the pandemic,[vi] no migrants or asylum seekers were released from administrative detention during this time. Although immigration removals were halted between 18 March and 15 June 2020, removal decisions continued to be issued during this time.[vii]
1.8 While some migration-related detainees were transferred to less crowded detention centres to facilitate social distancing, in general no other measures were taken to effectively prevent the spread of COVID-19 amongst immigration detainees or to provide adequate care to those who fell ill; there was no obligatory quarantine on release from immigration detention; and migrants and asylum seekers were not routinely tested for the virus.[viii]
2. HISTORICAL CONTEXT
2.1 Türkiye's immigration and asylum policies have been shaped by numerous factors related to its geography, history, and politics. Its relationship with the European Union (EU) has been particularly crucial because of its strategic location between the EU and the Middle East and other parts of the world.
2.2 Türkiye did not establish a comprehensive migration policy until the 2000s. The large-scale refugee movements which followed the Arab revolts in 2011 prompted Türkiye to further institutionalise migration and asylum policies, including by adopting Law 6458 on Foreigners and International Protection (LFIP) in 2013. As well as taking into account general "EU acquis" in the preparation of the new law, authorities also tried to ensure that it was in compliance with decisions made by the European Court on Human Rights (ECHR).[ix]
2.3 Europe's 2015 "refugee crisis" spurred Brussels to negotiate the controversial 2016 EU- Türkiye deal to prevent refugees from leaving its territory for Europe, including establishing that all migrants and asylum seekers who arrived on Greek islands after 20 March 2016 would be liable to return to Türkiye.[x]
2.4 In October 2016, Türkiye issued Decree 676. This expanded the grounds for deporting people in the process of applying for international protection,[xi] and resulted in increased deportations of refugees and asylum seekers to countries like Afghanistan, Syria, and Iraq.[xii] In July 2019, authorities in Istanbul announced raids, stop-checks, and arrests of Syrian refugees registered in other cities.[xiii] The raids were followed by summary deportations into northern Syria.[xiv]
2.5 Shortly before the onset of the COVID-19 pandemic, in February 2020 Türkiye announced that it would open its borders with Europe and cease efforts to stop refugees from crossing. Thousands of migrants and refugees travelled to the Greece-Türkiye border, with some reports suggesting that Turkish police transported groups to border areas and showed them where to cross.[xv] Greek security forces deployed at the border used tear-gas, water cannons, and stun grenades to prevent border crossings.[xvi] Some people were reportedly detained, assaulted, robbed, and stripped by Greek security forces before being pushed back into Türkiye.[xvii]
2.6 After the US and other international forces pulled out of Afghanistan in mid-2021, the Turkish government stated that it could not take in any more Afghan refugees and that it would not be used as a "migrant storage unit" for refugees trying to reach Europe.[xviii] (The country was already hosting approximately 300,000 Afghan refugees, and had deported an estimated 53,000 Afghans between 2018 and 2019.[xix]) Fearing a new influx of migrants and refugees, authorities constructed a wall and surveillance system along its 295-kilometre border with Iran to prevent refugees from entering the country. The country also summarily expelled thousands of Afghans, including women and children.[xx] Afghan families described repeatedly trying to cross the border from Iran into Türkiye's Van region being caught by the police, and deported or detained.[xxi]