Mohamed Bashir Attayee was captured by the police on 23rd of July 2022 during a routine ID control of Turkish police. The reason was his visa’s expired, and he couldn’t get short-term residency permit, which makes his existence in Turkey illegal. A lawyer was informed about the situation and went to the police center in Kumburgaz district (which is West edge of Istanbul) to visit Bashir and inform him about the situation. He would have been kept under custody for a while, and then he was to transferred to a detention center in Tuzla (which is on the east edge of the city). They transferred him to Tuzla on the same day and he stayed in that detention center for six days. Because of Istanbul’s detention centers are so crowded, he was sent to a western border city named Iğdır’s Detention Center (which is 1,500 kilometers away from Istanbul) on the 6th day of his capture.(29/07/2022)
The lawyer of Bashir applied to court to end his custody (30/07/2022) but the application was denied by the court (03/09/2022). During his stay in Tuzla, the lawyers tried to see Bashir and his file many times, but they were prevented by the officers with an excuse of there was a problem with the records and documents between the detention center and the police. But they were able to see him in Tuzla after 3 days. And then he was sent to Iğdır, a lawyer went to visit him more than ones. After getting information from Tuzla about his file, the lawyers could learn that there was a deportation decision about Bashir by the Istanbul Immigration Office. The lawyers objected to this decision via Istanbul Administrational Court. At the same time, after applying to the Turkish connotational court (02/09/2022) to ask for ending his custody, he was released by Iğdır Immigration Office after 4 days of the application (06/09/2022).
The Decision by the Istanbul Administrative Court
After 9 months since this application, Istanbul 15th Administrative Court has ruled that the deportation decision against Bashir was unlawful. According to this decision, the court found that the deportation decision given by Istanbul Provincial Directorate of Migration Management, which claimed that Bashir entered Turkey illegally, did not reflect the truth when examined based on the documents. The court determined that Bashir entered Turkey legally but his residence permit had expired. Although, according to the laws of the Republic of Turkey, a non-citizen individual without the necessary documents to stay in Turkey should be deported, the court stated that the decision of the Ministry of Interior Affairs regarding Bashir was unlawful, invoking the prohibition of deportation according to Law No. 6458 on Foreigners and International Protection.
According to this law, although the Republic of Turkey has the right to deport foreigners within the boundaries of the Republic of Turkey based on its sovereignty, if the person to be deported is likely to face the death penalty, torture, inhumane or degrading treatment in the country of deportation, they cannot be deported.
Considering the current situation in Afghanistan and the possible ill-treatment, torture, imprisonment, and even the death penalty that Bashir may face by the Afghan government, the defense claiming these points and the court’s decision to take them into account, the court has ruled that the decision made by the Ministry of Interior Affairs, without conducting sufficient examination regarding Afghanistan and considering Bashir‘s situation, is directly unlawful and has decided to cancel this action taken by the Ministry.
Although it is important that the court made this decision by referring to the Turkish Constitution and the European Convention on Human Rights, unfortunately, the Ministry of Interior Affairs continues to implement similar arbitrary policies regarding immigrants in Turkey. Therefore, this decision alone does not legitimize Bashir’s presence in Turkey, but we have the opportunity to claim compensation in favor of Bashir based on this decision. This will be the next step we will take.
Bashir is currently in Germany and does not have a short-term desire to return to Turkey but the results obtained in such cases are important for shaping the Turkish government’s policies regarding Afghan immigrants in the medium and long term.
Text by Adnan Onur Acar and Thomas Büsch