Dr. Ayşe Dicle
Ergin, Assistant
Professor, Bilkent University Faculty of Law
Photo credit: Henry
Ridgwell, Voice of America news, via Wikimedia
Commons
As of today, the vast majority of
approximately 2.8
million Syrians in Türkiye, having fled the conflict and civil war, are
under temporary protection. This figure does not include the 73,331 Syrians with residence
permits. The regime applicable to the temporary protection beneficiaries is set
out in the
Law No. 6458 on Foreigners and International Protection (LFIP) and the Temporary
Protection Regulation (TPR).
Following the fall of the Assad
regime, there has been an expectation that Syrians will soon return to their
home country. However, a realistic assessment of the current situation is
essential to avoid fostering misguided expectations. This blogpost will examine
the meaning and scope of temporary protection, the conditions for its
termination, voluntary return, and the circumstances under which Syrians may be
able to return.
Temporary Protection
Temporary protection
is a regime that enables states facing a mass influx of refugees to provide
emergency intervention without conducting individual refugee status
determination procedures. It addresses protection gaps by ensuring the
fundamental rights of individuals fleeing armed conflict and guarantees
protection against refoulement. This regime was originally conceived as a return-oriented
protection mechanism.
Under the temporary protection
regime, both refugees covered by Article
1A(2) of the 1951 Convention and individuals eligible for complementary protection
within the broader context of forced migration are provided with legal
protection. This regime aims to use the host country’s resources efficiently
while avoiding the perception that beneficiaries will remain in the host
country permanently. In
this context, the general expectation and the most commonly preferred solution
is the return
of beneficiaries to their home countries.
The international protection
regime is founded on specific principles and criteria established under
international law, and it is accepted
that these
principles largely apply to temporary protection, with the principle of
non-refoulement serving as a key criterion in this context. As outlined in Article
33 of the 1951 Convention, this principle prohibits the expulsion or return
of refugees to territories where they would face a risk of persecution. While
this provision specifically applies to refugees, the second paragraph of the
article allows for two exceptions based on public order and public safety
considerations.
However, with the growing
influence of human rights law, the principle of non-refoulement has been
interpreted more broadly over time. As reflected in key international legal
instruments, this broader interpretation extends to ‘everyone’ without
exception. The case law of regional
human rights courts has significantly contributed to this
expansive understanding, solidifying
non-refoulement as a fundamental principle of human
rights law and international
customary law.
The ECtHR interprets the
principle of non-refoulement within the framework of Article 3 of
the European Convention on Human Rights (ECHR), which prohibits torture and
ill-treatment in an absolute manner. In this regard the ECtHR has adjudicated cases
involving both generalized
violence
and national
security concerns.
These rulings affirm that the principle of non-refoulement constitutes a
non-derogable obligation under the regional law of the Council of Europe, of
which Türkiye is a member.
The principle of non-refoulement
is a fundamental and binding principle of the international protection regime,
ensuring that no one is returned to a territory where they would face a risk of
persecution, torture, inhuman treatment, or punishment. Türkiye upholds this
principle through legal guarantees enshrined in Article 17 of its
Constitution, Articles
4 and 55 of the LFIP, and Article
6 of the TPR.
End of Temporary Protection
As reflected in its name,
temporary protection is granted
for a limited period; however, determining the exact duration is not always
possible. In the 1990s, it was widely accepted that temporary protection should
not extend beyond five years, whereas the current upper limit is generally
set at three
years. The EU
Temporary Protection Directive (EU TPD) also stipulates a maximum
protection period of three years, provided that the reasons for temporary
protection persist (EU TPD Art. 4). However, following the Ukraine crisis, EU
practice has shifted towards extending
this duration despite ongoing legal debates.
In contrast, Turkish national
legislation does not specify a maximum time limit for the temporary protection
regime (TPR, Art. 10). Temporary protection may cease either individually or
collectively. In cases of collective cessation, the President may terminate
temporary protection upon the proposal of the Ministry of Interior (TPR, Art.
11). Following such a decision, the President also determines the durable
solution for beneficiaries of temporary protection, which may include: full
cessation to facilitate return to the country of origin, collective granting of
status, individual assessment of applications for international protection, or
the provision of a legal right to stay under the conditions outlined in the
LFIP). According to the Temporary
Protection Regulation, the primary expectation after cessation is the
return of beneficiaries to their home countries (TPR, Art. 14). The TPR further
mandates that authorities provide the necessary facilitation and assistance for
those opting for voluntary repatriation (TPR, Art. 42). The grounds for
individual termination of temporary protection include voluntarily leaving
Türkiye, availing protection of a third country, being admitted to a third
country for humanitarian reasons or resettlement, passing away, or acquiring a
legal right to stay or Turkish citizenship as stipulated in the law (TPR, Art.
12).
Voluntary Repatriation and Return
Voluntary repatriation is a key
concept in situations where the conditions that initially necessitated
protection in the host country no longer exist in the country of origin. In the
context of international protection, the international community, particularly
the UNHCR, recognizes three durable solutions: voluntary repatriation,
local integration, and resettlement. While the Global Compact on Refugees
expands these solutions with the inclusion of ‘complementary pathways’,
voluntary repatriation remains the most widely favoured durable solution by the
states.
This preference is reaffirmed not only in UNHCR Executive
Committee conclusions but also promoted by the international community in
the Global
Compact on Refugees, which emphasizes facilitating the sustainability of
returns.
The 1951 Convention does not
explicitly address voluntary repatriation. However, international human rights law
establishes the fundamental principle that no individual shall be deprived of
the right to return to their own country (UDHR,
Art. 13/2; ICCPR,
Art. 12/4; CERD,
Art. 5/d; ECHR,
Protocol No. 4, Art. 3/2; African
Charter on Human and Peoples’ Rights, Art. 12/2; American
Convention on Human Rights, Art. 22/5). The key element of this process is
its ‘voluntary’ nature - meaning the return must be based on the free will of
the individual. Consequently, as highlighted by UNHCR, voluntary repatriation
can only be considered a viable solution under international law if conditions
in the country of return ensure
the safety, dignity, and rights of returnees.
Although voluntary repatriation
and cessation are distinct
legal procedures related to refugee returns, they are closely
interconnected. Article
1(C) of the 1951 Convention specifically regulates cessation in cases where
international protection is no longer necessary or
justified. In the Turkish legal framework the conditions necessitating the
cessation of international protection are stipulated for refugee, conditional
refugee and subsidiary protection statuses in Article
85 of the LFIP in line with the 1951 Convention. Return to the country of
origin after the termination of temporary protection, which is regulated in Article
14 of the TPR, can also be considered as a form of cessation. This is
because when the circumstances that necessitated international protection no
longer exist, protection ceases, making return to the country of origin a
natural outcome.
On the other hand, there are no
uniform rules regarding the modality of voluntary repatriation. Relevant
material and procedural conditions may vary depending on government policies.
While return is always possible, ‘repatriation’ refers specifically to the
facilitation of return. According to its Statute,
UNHCR is tasked with promoting voluntary repatriation (UNHCR Statute, Art.
8/c). Yet UNHCR verifies the following
essential conditions before engaging in the voluntary repatriation of
refugees: (i) changes of a profound nature in the country of origin, (ii) voluntary
nature of the decision to return, (iii) timely dialogue between the host
country, the country of origin and UNHCR and clear allocation of responsibilities
through a tripartite agreement, and (iv) ensuring that the safety and dignity
of returnees are respected.
UNHCR
Handbook on Voluntary Repatriation emphasises the importance of ensuring
that return is voluntary, safe, dignified, sustainable, and durable. These standards
are also underlined in relevant literature (see: here, here,
here
and here).
Moreover the voluntary
nature of return means that it must be an informed choice rather than a
result of reduced
assistance and unbearable conditions in the host country. This requires the
transparent provision of detailed information about security and living conditions
in the country of origin to potential returnees. Dignified
return necessitates guarantees against potential violations of the
individual’s rights, whereas, according
to UNHCR, safe return is only possible when three elements are met: legal,
physical, and material safety. Physical safety requires a secure environment
that ensures freedom of movement and access to territory. Legal safety entails
equal treatment upon return. Material safety is established through access to
humanitarian assistance. These factors are directly proportional to progress in
improving security and living conditions in the country of origin. Regarding
the threshold for improvement in conditions, UNHCR
Discussion Note considers a “general improvement in the situation of the
country of origin so that return in safety is both possible and desired” sufficient
(UNHCR Discussion Note, para. 8.A.i). However, this threshold is open to criticism
for being lower than the one expected for cessation while it is argued
that repatriation should not take place before the circumstances have changed. On the other hand, sustainable
return could be achieved through facilitating and monitoring the
reintegration of returnees.
In short, voluntary repatriation
is a solution that can be implemented when, based on an objective assessment,
the circumstances that led to displacement no longer exist, return is deemed
feasible and in line with the principle of non-refoulement, and the process
takes place in a safe and dignified manner. Accordingly, individuals’ return
decisions will be shaped by these conditions.
Expectations for Return of Syrians
to Their Country in the Short Term After the Fall of the Assad Regime and Relevant
Obligations
As a country that has suffered extensive
damage from conflicts, Syria
remains unstable, with significant uncertainty about its future. Currently
it is impossible to predict when voluntary repatriation will become a viable
option for the beneficiaries of temporary protection. Several factors must be
considered as a priority, including the uncertainty over which actor/s will
control different parts of the county, the accommodation and housing needs of
returnees, existing infrastructural deficiencies, and the limited availability
of employment and livelihoods opportunities.
UNHCR reported the return of 270,000
Syrians from the neighbouring countries to Syria as of 5 February 2025
including 81,576
returnees from Türkiye. However, it remains unclear whether these returns
are permanent. Many Syrians may have travelled back their home country to
assess conditions, visiting their homes while waiting for the summer holiday to
bring their children and other family members along. Despite these numbers, it
is too early to draw optimistic conclusions in the short term.
Accordingly, certain factors need
to be considered for a realistic plan:
Respect for legal obligations
and the principle of non-refoulement:
As outlined above, the principle
of non-refoulement, governed by Article 33 of the 1951 Convention, is
reinforced by fundamental human rights principles. This protection is embodied
in the Turkish legislation and the ECHR. Legal provisions safeguarding the
right to life and prohibiting torture impose a duty on states to protect
individuals from potential violations of these rights. In line with this, both
the Turkish Constitutional Court (TCC) and the ECtHR have issued recent rulings
assessing whether national authorities have adequately reviewed and
corroborated applicants’ claims regarding the violation of their right to life
or the risk of torture or ill-treatment upon return to conflict areas. (See A.A. ve A.A.; Abdulkerim
Hammud; Hüsam
İbrahim; Ali
Elhüseyin cases by the TCC and L.M.
and others v. Russia; M.D.
and others v. Russia; Akkad
v. Turkey cases by the ECtHR)
Therefore, regardless of whether
temporary protection terminates collectively or individually, the State’s obligations
under international law remain in effect. In all cases, states are required to
uphold their legal commitments and respect the principle of non-refoulement. Moreover,
returnees should be provided with comprehensive
information and guidance to ensure their informed consent for safe and
dignified return, thereby mitigating the risk of human rights violations.
States can facilitate “go-and-see”
visits after conflicts end, allowing potential returnees to assess security
conditions, find accommodation, seek employment or check the general situation in
their home countries. Some of the visits facilitated by
the Turkish Ministry of Interior after the fall of the Assad regime can be
considered within this scope. The conditions of such exploratory visits are
also included in the EU
temporary protection framework.
Planning for processing of
individual applications of those in need of protection:
Under the TPR the beneficiaries
of temporary protection are not permitted to file individual asylum
applications, and applications submitted before the TPR came into force cannot
be processed (TPR,
Art. 16 and Provisional Art. 1). In the event of collective termination of
temporary protection, it should be a priority to plan how to process individual
applications of those in need of international protection and what steps to
take for those who no longer have a legal right to stay in the country. Since
circumstances will vary on a case-by-case basis, status determination
procedures must be initiated for those who claiming to be unable to return
return due to their ongoing need for international protection. Assessments may
be conducted on an individual or family basis to determine the place of origin
(in this case, in Syria) and to establish whether it is safe for return,
whether such individuals qualify for international protection, and if eligible,
what status will be granted to them. These procedures will be essential in
ensuring that protection needs are met while maintaining compliance with legal
obligations.
Adoption of realistic
approaches and transparent provision of information both to Syrians and the
society:
Historical examples demonstrate
that the return of Syrians is likely to be a realistic option only in the
medium to long term. Past mass influx experiences have shown that states often
hold overly optimistic expectations regarding safe and rapid returns. For
instance, it took more than a decade for approximately
2 million temporarily protected Bosnians to return to Bosnia and
Herzegovina following
the Yugoslav crisis. Similarly, the return of those forcibly displaced due
to conflicts in Burundi, Cambodia, Liberia, and South Sudan was also a prolonged
process. These examples suggest that
adopting a cautious approach rather than an overly optimistic one would provide
a more realistic perspective.
The UNHCR’s
Position on Returns to Syria, published in December 2024, highlights that
Syria is not yet safe for large-scale voluntary repatriation, emphasizing that
returns should only begin once security, societal, and humanitarian issues are
adequately addressed (para. 3). That said, it would also be inaccurate to portray
the return of Syrians as an impossible prospect as repatriation to safe areas
remains a possibility when based on informed consent. However, states, UNHCR,
and relevant stakeholders must work together to facilitate returns through a
multi-stage plan with a realistic timeline.
Ensuring sustainable
reintegration of voluntarily returning returnees:
Furthermore, the sustainability
of returns to Syria depends on development support for Syria and increased assistance
and support to Türkiye, rather than the symbolic funding allocated in
recent years. Even as of 2019, Turkish
authorities reported having spent $40 billion on supporting Syrians in
Türkiye. Meanwhile, following the destruction caused by internal conflicts and
international sanctions, the estimated
cost of reconstruction in Syria ranges between $250 billion and $400
billion.
Significant infrastructure
development, well-equipped human resources, and targeted development assistance
will be essential for any new government in Syria to create conditions
conducive to return and stabilize the country. To secure such assistance from
the international community, the new government must establish an inclusive and
democratic regime.
Conclusion
There is a perception that
large-scale returns to Syria will take place soon. However, given the situation
on the ground, this is dependent on political, economic and legal realities.
Voluntary repatriation is not only a political matter but also a legal one, as
it must adhere to international standards that ensure safety, dignity and
sustainability. Various challenges could facilitate or hinder this process
including political fragmentation, economic instability and security concerns. Above
all a well-managed and inclusive reconstruction process will be essential. This
process would demonstrate how a nation composed of diverse ethnic and sectarian
groups, with weak sense of nationhood and limited resources, can transform into
a stable and secure country within a relatively short period. Ultimately, time
will determine whether large-scale voluntary repatriation to Syria will be
possible. While a democratic and stable government is the ideal scenario for
the future of Syria, the opposite also remains a possibility in the near
future.
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