On 12 June 2018, the Turkish Constitutional Court delivered a pilot judgment in Y.T. concerning the prohibition of refoulement in light of the amendments introduced to the Law on Foreigners and International Protection by way of emergency decree in 2016.

An exception to the principle of non-refoulement in Turkish legislation was brought about by Emergency Decree 676 of 29 October 2016, which provides that a deportation decision “may be taken at any time during the international protection proceedings” against a person for reasons of: (i) leadership, membership or support of a terrorist organisation or a benefit-oriented criminal group; (ii) threat to public order or public health; or (iii) relation to terrorist organisations defined by international institutions and organisations.

The derogation from non-refoulement is applied in practice, bearing in mind that security-related codes are widely issued to foreign nationals by the Directorate General for Migration Management (DGMM) – the “YTS89” code issued to “foreign terrorist fighters” (Yabanci Terorist Savasci), for example, was applied to approximately 67,000 persons in 2017.

Although administrative courts have developed positive practice with regard to upholding the non-refoulement principle, the emergency decree specifies that appeals against deportation decisions on the aforementioned grounds have no automatic suspensive effect. Since the entry into force of the decree, the only effective recourse for preventing removal is a complaint before the Constitutional Court together with a request for interim measures.

According to the pilot judgment, since the entry into force of the decree, the Constitutional Court has received 866 individual applications with requests for interim measures against deportation. Of those, the Court has granted interim measures in 784 cases, therefore halting deportation in over 90% of applications. In the case at hand, the Court had already grantedinterim measures on 1 November 2016 to prevent the applicant’s deportation to Russia.

With the pilot judgment, the Constitutional Court has requested the Ministry of Interior to examine whether the law, as amended by the decree, poses a structural problem to protection from refoulement.

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*This article was first published by AIDA

This article appeared in the ECRE Weekly Bulletin . You can subscribe to the Weekly Bulletin here.