Introduction

This study analyzes the scope of the right to apply for international protection, particularly the questions of whether this right can be exercised in a removal center or after a deportation decision has been made, based on the literature sources provided. The study examines the basis of the right to apply, its relationship with a deportation decision, the role of the principle of non-refoulement, and the legal consequences of the application process.

1. Nature and Scope of the Right to Apply for International Protection

Literature acknowledges that the sovereign powers of states are limited by the right to seek international protection. The fact that a foreigner has entered the country unlawfully or has an entry ban against them does not prevent access to this fundamental right. It is accepted that the sovereign power of states to control the entry of foreigners into their country and to refuse to admit foreigners is limited, in the case of asylum seekers, by the necessity that they must at least be able to access the right to seek asylum. In our law, it has also been stipulated that foreigners who are among those not permitted to enter Turkey or who have entered unlawfully have the right to apply for international protection, and if they apply, they will not be sent out of the country until the evaluation of their applications is finalized, and their ability to apply for international protection has been guaranteed.

This approach is in line with the spirit of the 1951 Geneva Convention and is based on the fact that an asylum seeker may not always be able to meet legal entry requirements. YUKK Art. 8 states that legal entry requirements cannot be applied in a way that would hinder an international protection application.

2. Applying While a Deportation Decision Exists or in a Removal Center

Having a deportation decision issued against them, or being held under administrative supervision in a removal center pursuant to such a decision, does not abolish the right to apply for international protection. Foreigners against whom a deportation decision has been issued can also apply for international protection. Those subjected to administrative supervision due to a deportation decision being issued and deemed necessary can apply for international protection during this period. The protection of a foreigner’s right to asylum should have priority of application compared to the principle of territorial sovereignty upon which the deportation decision against that foreigner is based. Therefore, even if a deportation decision has been issued against a foreigner, their application for international protection should not be prevented.

3. The Effect of the Application Process on Deportation Procedures and the Principle of Non-Refoulement

The submission of an international protection application creates a critical legal consequence in the deportation process: the principle of non-refoulement comes into play. This principle is regulated as a fundamental principle in Article 4 of the YUKK (Foreigners and International Protection Law) and prohibits sending a person to a place where they would be subjected to torture, inhumane or degrading treatment, or persecution. As a result of this principle, the foreigner cannot be deported until the application process is concluded.

Under the general rule, it is not lawful for foreigners to be placed under administrative supervision for reasons of deportation while their asylum procedures are ongoing, and they cannot be deported until a final decision is made regarding their claims.

The case-law of the European Court of Human Rights (ECtHR) also supports this view.  In its decisions in S.D. v. Greece and R.U. v. Greece, the ECtHR determined that an asylum seeker cannot be deported until a final decision is made on their asylum application, and that their detention for this purpose lacks a legal basis.

4. Negative Outcome of the International Protection Process

Although the right to apply for international protection is absolute, the exercise of this right does not grant an indefinite right of stay. If the application process has a negative outcome, the deportation procedure comes into play again. Article 54/1-i of the YUKK (Law on Foreigners and International Protection) regulates this situation. “…a deportation decision must be issued for those whose international protection application has been rejected, who have been excluded from international protection, whose application has been deemed inadmissible, who have withdrawn their application, whose application is considered withdrawn, or whose international protection status has expired or been cancelled, and who do not have the right to stay in Turkey according to other provisions of the YUKK, after the final decision concerning them.” An important detail to note here is that a negative outcome of the application alone is not sufficient for a deportation decision. The foreign national must also “not have the right to stay in Turkey according to other provisions of the YUKK” (e.g., not having a valid residence permit).

Conclusion

In light of the presented literature, it is concluded that the right to apply for international protection (refugee status/asylum) exists regardless of how the foreigner entered the country or whether there is a deportation decision against them. This right can be exercised even while under administrative detention in a removal center or after a deportation decision has been issued against them.

The submission of an application ensures the factual and legal suspension of deportation proceedings, in accordance with the principle of non-refoulement, until a final decision is rendered on the application. However, if the international protection application process ultimately results in a negative outcome and the foreigner has no other legal basis to remain in Turkey, a deportation decision against them becomes a legal obligation under Article 54/1-i of the Law on Foreigners and International Protection (YUKK). This process reflects the balance between the sovereign rights of the state and the fundamental rights of the individual. A paper suggestion.

Why Is Expert Legal Support Necessary?

An international protection application can always be made regardless of how the person entered the country or whether there is a deportation decision against them. Especially for foreigners held under administrative detention, such as in the Istanbul Tuzla Removal Center, this right is one of the most important safeguards against deportation proceedings.

When an application is made, in accordance with the principle of non-refoulement, it is not possible to deport the foreigner until the application is finalized. However, incorrect handling of the process, an incomplete application, or procedural errors can lead to both the rejection of the application and the rapid execution of deportation proceedings.

Therefore, it is of great importance that international protection applications and objections against deportation decisions must necessarily be followed up by an expert lawyer in the field. Expert legal support prevents loss of rights, ensures the process is conducted in accordance with the law, and allows the individual to protect their right to remain in Turkey.