The Legal Dilemma of Syrian Children in Turkey:  Is Temporary Protection Really Temporary?

November 2, 2020 by Digital Editor

Displaced Syrian Children

By: M. Selman Oktem

In early 2020, just before the Covid-19 pandemic, Turkey decided to open its border and allow immigrants to go to Greece. The increase in the number of child asylum seekers who cross the border has brought attention to the condition of Syrian childen in Turkey and their legal status.

Turkey, due to its geopolitical location, has been home to large migration movements throughout history. The most recent and the largest of these displacement waves is composed of those who have fled Syria’s civil war since 2011. The total has reached  3.6 million asylum seekers in Turkey. Turkey has now become the country in the world with the highest number of asylum seekers. According to the United Nations Children’s Fund (UNICEF) 2019 Report, children make up a third of the Syrian immigrants in Turkey, which indicates that 1,711,542 Syrian children are present in Turkey.

In response to this growing population, Turkey enacted a new immigration law in April 2013, The Foreigners and International Protection Law, No. 6458 and its Temporary Protection Regulation in October 2014. According to this law, Syrians in Turkey would not be given refugee status. Instead, they would be granted “temporary protection” status. Temporary protection is not an established part of international law, but a political tool developed to deal with situations of a mass influx of immigration. Once the applicants are granted “temporary protection” pursuant to the new rules in Turkey, their application for refugee status is not processed. However, most jurisdictions, such as the United States and the European Union, allow temporarily protected immigrants to apply for refugee status.

According to the 1951 Geneva Convention Relating to the Status of Refugees, which is the most important international refugee convention, the Syrians in Turkey are not granted proper refugee status under international law. When the 1951 Refugee Convention and its 1967 Protocol come into force, the convention allowed signatories to make limitations to the scope of the convention. Turkey, along with Congo, Madagascar, and Monaco, expressly maintained its declaration of geographical limitation upon the convention. In consequence of this limitation, Turkey will provide refugee status to citizens of member states of the Council of Europe. However, Syrians, because they did not come from Europe, are not covered by the convention.

Temporary protection, however, does not give the same rights to Syrian children as refugee status would. Immigrant children are the most vulnerable group in the immigrant population. According to UNICEF, almost 400,000 school-age Syrian children in Turkey are not enrolled in elementary school. Most of them work instead of studying. Furthermore, temporary protection was created by the government under domestic law rather than in accordance with international obligations. So, these rules are subject to changes by the government, which makes them less binding. Theoretically, the Turkish Government could send Syrian children back to Syria at any time, notwithstanding its pledge of non-refoulement, and interrupt the children’s education. Without solid legal status, unfortunately, they might find themselves on a bus going to the border, sticking between borders. For instance, in early 2020, the children (and Syrians in general) were used as leverage against European states.

The new Turkish Immigration Law does not adhere to international children’s treaties. According to Article 3 of The Convention on the Rights of the Child, “the best interests of the child” must be a primary consideration under the regulations of the signatory countries. However, the new law violates the children’s best interest principle by not granting them refugee status. Additionally, the law contradicts Turkey’s own Constitution: In the justification part of article 41, it is clearly stated that Turkey accepts the provisions of the Convention on the Rights of the Child and that these provisions will be in the constitution’s power.

As a result, the government should amend the rules regarding immigrant children under Turkish law. In an amendment to the Foreigners and International Protection Law, Syrian children should be granted the right to apply for refugee status. Refugee status will give stability and predictability to children’s legal status and provide rights such as education, social security, health care etc. For example, once these children obtain refugee status, they would be eligible for public scholarships. Moreover, because refugee status is permanent, the government would not be able to deport these children back to Syria. Most importantly, by granting refugee status, the path for citizenship will be opened for Syrian children. After five years, children will be able to apply for Turkish citizenship. This will lead to the integration of Syrian children into society, which is vital given the unstable socioeconomic situation and unfair living conditions. Through education and other social and economic opportunities, Turkey will not only provide Syrian children better lives but also invest in its own future by protecting a generation. Since the integration process would provide children with the rights and protection mentioned above, it would also decrease the probability of them being involved in crimes or exposed to other types of abuse.

Under Turkey’s implementation of temporary status, children have been under temporary protection for more than seven years or were even born into such status. There appears little hope for a permanent situation. These children should be granted refugee status, both in order to comply with international law and for humanitarian purposes. Legally speaking, under the principle of “the best interests of the child,” the children are entitled refugee status. In terms of humanitarian concerns, children who fled from the war in Syria might never be able to go back. Leaving these children effectively stateless for life would be incredibly inhumane.

M. Selman Oktem is an LL.M. student at the Georgetown University Law Center. He graduated from Istanbul University Law School in 2015, with magna cum laude. Then, he received his masters from the same university with a dissertation thesis. While earning his masters, Selman also worked as a teaching assistant at a law school in Turkey. In this position, he taught private international law, international arbitration, and immigration law.