Attorney Aykut Yavuz writes: Deportation of foreigners: An examination in terms of international law and human rights

Around the world, countries are forced to make decisions regarding the deportation of foreigners within their borders. States may deport a foreigner who poses a danger to public interests such as national security, public safety, general health, and the protection of morality. However, this process must be subject to certain important principles in terms of international law and human rights.

This article discusses the basic concepts related to the deportation of foreigners, the judicial path that a foreigner can apply to against this deportation decision, and the principles established by international law.

1. Right to Asylum and International Protection:

The issue of the deportation of foreigners is closely related to the right to asylum. International protection law recognizes the right to asylum and requires that asylum applications be evaluated fairly. Unless a person's asylum request is rejected, that person should not be deported.

On the other hand, it should also be taken into account that under Article 3 of the ECHR, there may be situations where the foreigner may face torture or life-threatening risks in the country to which they will be sent as a result of the implementation of the deportation process.

2. Legal Process and Fair Evaluation:

The deportation process must be subject to legal procedures and a fair evaluation. This allows the person to defend their rights and object to the reasons for deportation.

3. Risk of Human Rights Violation:

The deportation process must be carried out carefully due to the potential risks that it may violate human rights. If there is a risk that people will be exposed to dangerous conditions such as torture, ill-treatment, or death as a result of deportation, this process should not be carried out. For example, under Article 8 of the ECHR, the risk of violating the right to respect for family life may arise.

Another important point to consider is that Article 4 of Protocol No. 4 to the ECHR prohibits the collective expulsion of foreigners.

It should also be remembered that the European Convention on Establishment, to which the Republic of Turkey is a party, also mentions grounds such as “national security, public order, and general morality” for deportation (Art. 3/1).

4. Reasons for Deportation:

Every country has its own laws that determine the reasons for deportation. At the legal level, the circumstances under which a deportation decision can be taken against a foreigner are specified in the LFIP (Law on Foreigners and International Protection).

In the LAW ON FOREIGNERS AND INTERNATIONAL PROTECTION (LFIP), the persons to be deported are clearly stated in the first paragraph of Article 54 under the heading of those for whom a deportation decision will be taken: Illegal entry, posing a security threat, being an administrator, member, or supporter of a terrorist organization or an administrator of a profit-oriented criminal organization, overstaying a visa, having a contagious disease, posing a danger to public order and health, those whose residence permits have been canceled, those found to be working without a work permit, those who have a residence permit but violate the residence permit duration for more than ten days from the date of its expiration without an acceptable excuse, those whose residence permit extension applications are rejected and who do not leave Turkey within ten days, and those found to have entered Turkey despite having an entry ban to Turkey.

5. Judicial Path and Legal Representation Against Deportation Decision

The Deportation Decision is notified to the foreigner or their legal representative or lawyer along with its grounds. If the foreigner for whom a deportation decision has been taken is not represented by a lawyer, they or their legal representative can object to this decision. When the decision is notified to them, they are informed about the result of the decision, the objection procedures, and the deadlines.

Foreigners should be provided with legal representation during or before the deportation process. This helps individuals defend their rights. Lawyers serving in the fields of foreigners law, especially refugee law, citizenship law, and deportation law, must know the language spoken by the client well so that the client does not suffer a loss of rights.

6. The process of applying to the judiciary

The foreigner or their legal representative or lawyer may apply to the administrative court of the province where the Provincial Directorate of Migration Management that issued the decision is located within seven days from the notification of the decision against the deportation decision. Applications made to the Administrative Court are concluded within fifteen days. The decision given by the court is final. The case information form regarding the filed lawsuit must be delivered to the Removal Center where the foreigner is kept under administrative detention and must be included in the foreigner's file; otherwise, the Removal Center cannot be aware that a lawsuit has been filed against the deportation decision. In case of an application to the judiciary, the foreigner cannot be deported until the trial is concluded.

Alternative obligations to administrative detention such as residing at a specific address, reporting, family-based return, return counseling, volunteering in public interest services, collateral, and electronic monitoring can be imposed on foreigners listed in the second paragraph of Article 57 of the LFIP No. 6458 or on foreigners whose administrative detention is terminated. It is recommended that the foreigner's lawyer mention these alternative obligations in the objection petition.

The person taken into administrative detention or their legal representative or lawyer can apply to the criminal judgeship of peace against the administrative detention decision and make an objection by putting forward their grounds. The decision of the criminal judgeship of peace is final, but the foreigner, their lawyer, or their legal representative has the right to re-apply to the criminal judgeship of peace with the claim that the conditions for administrative detention have disappeared or changed.

7. Those for Whom a Deportation Decision Will Not Be Taken

In the Law on Foreigners and International Protection (LFIP) No. 6458, there is a regulation regarding Those for Whom a Deportation Decision Will Not Be Taken in the Fourth Section titled Deportation of the Second Part titled Foreigners. Namely;

ARTICLE 55 – (1) Even if they are within the scope of Article 54, a deportation decision shall not be taken against the following foreigners:

a) Those who have serious indications that they will be subjected to the death penalty, torture, inhuman or degrading punishment or treatment in the country to which they will be deported

b) Those for whom travel is considered risky due to serious health problems, age, and pregnancy status

c) Those whose treatment is ongoing for life-threatening diseases and who do not have access to treatment in the country to which they will be deported

ç) Victims of human trafficking who are benefiting from the victim support process

d) Victims of psychological, physical, or sexual violence until their treatment is completed

(2) The evaluations within the scope of the first paragraph are made separately for everyone. These persons may be asked to reside at a certain address and to report in the requested form and time.

8. Prohibition of Refoulement:

International law states that the refoulement of a person is prohibited. This applies when a person is at risk of being subjected to torture, ill-treatment, or persecution in the event of deportation. The prohibition of refoulement is enshrined in Article 4 of the LAW ON FOREIGNERS AND INTERNATIONAL PROTECTION;

‘’ARTICLE 4 – (1) No one within the scope of this Law shall be sent to a place where they will be subjected to torture, inhuman or degrading punishment or treatment, or where their life or freedom will be threatened due to their race, religion, nationality, membership in a particular social group, or political opinions.’’

CONCLUSION

The deportation of foreigners is a complex issue and must be handled in accordance with international law and human rights. States derive their right to deport a foreigner who threatens public safety, public order, and public health from international law.

Although every country has its own legal procedures, these decisions must be implemented in a way that does not violate fundamental human rights. Deportation processes are under the careful observation of the international community, and since it is a sensitive area due to human rights and the fact that the foreigner may have family in the country to which they are to be deported, the protection of the right to respect for family life is of great importance.

Attorney Aykut YAVUZ

News Source: 12punto