Family Rights and Deportation in Turkey – Atty. Ozan Soylu

How is the concept of family defined in the context of deportation?

The European Court of Human Rights (ECHR) and the Turkish Constitutional Court generally consider the concept of family as a nuclear family. This includes relationships between spouses and relationships between parents and minor children. However, in some cases, relationships between grandparents and grandchildren or third-degree and beyond family relationships can also be included if there is a bond beyond ordinary emotional ties.

It should be noted that the ECHR does not require the existence of a formal marriage when assessing the existence of family ties. De facto family ties can also be considered sufficient.

What date is taken as the basis when evaluating the right to respect for family life?

The ECHR and the Turkish Constitutional Court take as a basis the date when the measure or ban constituting interference with family life becomes final. It is assessed whether there is an existing family life as of this date.

In Turkish law, the Constitutional Court emphasized in its decision dated 15.03.2022 on the A.A.A. Application (App. No: 2018/36516) “the necessity of establishing whether the foreign person had an existing private and/or family life in the country at the date when the deportation procedure was initiated.”

What interests conflict in deportation decisions?

In deportation decisions, public interests such as the protection of public order, public security, and public health generally conflict with the individual interests of protecting the foreigner’s right to respect for family life in the country. In this case, a fair balance needs to be struck between these interests.

What criteria does the ECHR consider in balancing interests?

The ECHR considers the “principles of legality, legitimate aim, compliance with the requirements of a democratic society, and proportionality” when balancing interests. The interference must have arisen from the necessity of protecting national security, public safety, the economic well-being of the country, as well as preventing crime, protecting health or morals, and protecting the rights and freedoms of others.

What are the Boultif criteria and what are they used for?

The Boultif criteria are the criteria set out by the ECHR in the Boultif v. Switzerland case (App. No: 54273/00, 02.08.2001) and used when balancing interests in deportation decisions. These criteria include:

• The nature and seriousness of the offense that could lead to the applicant’s deportation
• The length of the applicant’s stay in the country
• The time elapsed since the offense was committed and the applicant’s conduct during that period
• The nationalities of the persons concerned
• The applicant’s family situation
• Whether the applicant’s spouse was aware of the offense when they entered into the relationship
• The age of the children
• The degree of difficulties the spouse might face in the country to which they would be deported

These criteria are used to ensure foreseeability and proportionality in deportation decisions.

What additional criteria were introduced in the Üner v. Netherlands decision to the Boultif criteria?

In the Üner v. Netherlands decision (App. No: 46410/99, 18/10/2006), the ECHR considered the following additional criteria to the Boultif criteria:

• The best interests and well-being of the children
• The difficulties the children would face in the country to which they would be deported
• The solidity of social, cultural and family ties with the host country and with the country of destination

These additional criteria aim to address the situation of children and inter-country ties in more detail.

What principles does the Constitutional Court consider in balancing interests?

Similar to the ECHR, the Constitutional Court in Turkey considers the balance between the public interests sought to be protected by deportation and the protection of the right to respect for family life. In this assessment, it uses the criteria of “requirements of the democratic society order” and “proportionality” as stated in Article 13 of the Constitution.

The Court emphasizes that a fair balance must be struck between “the sacrifice expected from the individual” and “the legitimate aim underlying the intervention”.

How is the presence of children evaluated in deportation decisions?

The presence of children carries special importance in deportation decisions. The ECHR and the Turkish Constitutional Court consider the best interests of the child. Factors such as the child’s age, dependence on the parent to be deported, vulnerability, and which country would be more suitable for the child to live in are taken into account in the assessment.

It should be noted that a balance needs to be struck between the best interests of the child and the public interest underlying the deportation decision. The public interest should only prevail if it is an indispensable and non-negotiable interest concentrated on the general public.

What is the role of competent authorities and courts in deportation decisions?

The ECHR and the Turkish Constitutional Court expect competent authorities and courts to conduct a detailed examination and provide sufficient justification in deportation decisions.

In its decision dated 15.3.2022 on the Gulnura Toktomambetova Application (App. No: 2018/29906), the Constitutional Court ruled that the right to respect for family life was violated on the grounds that “the administrative court did not conduct an examination and balancing in terms of the effects of the administrative action on the applicant’s family life, and no justification was given regarding the right to respect for family life”.

How is the possibility of the person to be deported taking their family to another country evaluated?

The ECHR and the Turkish Constitutional Court assess whether it is possible for the person to be deported to continue their life in another country with their family. If the family can live together in another country, this situation may create an opinion that family life is not disrupted.

However, it should be noted whether the family will face extraordinary difficulties in the country they will go to. Especially in the presence of children, the possibility of experiencing extraordinary adaptation problems should be evaluated, considering the best interests of the child.

If an assessment cannot be made within the scope of the right to respect for family life, under which other right can an assessment be made?

If an assessment cannot be made within the scope of the right to respect for family life, an assessment can also be made within the framework of the right to “respect for private life”. In this case, the extent of the person’s integration into the country is taken into account.

In the assessment to be made within the scope of the right to respect for private life, factors such as the time the person has spent in the country, the ties established with the country, and the effect of these ties on the person’s life can be taken into consideration.

What happens if a family bond is formed after the deportation decision becomes final?

If a new family bond is formed after the deportation decision becomes final, for example due to marriage or having a child, it is thought that a new application can be made to the administrative authorities.

In light of this new situation, administrative authorities can make a new assessment and a new process can be initiated. However, since there is no definite regulation on this issue, each situation should be evaluated on its own merits.

Does the concept of family only cover official marriage relationships?

No, the concept of family does not only cover official marriage relationships. The ECHR does not require the existence of an official marriage when assessing the existence of family ties. De facto family ties can also be considered sufficient.

In its decision K. and T. v. Finland ([GC], App. No: 25702/94, 12/7/2001), the ECHR stated that “the key criterion for determining the existence of family life is not an official marriage bond, but whether close personal ties actually exist”, thus demonstrating this approach.

How is the best interest of the child evaluated in deportation decisions?

The best interest of the child is an important evaluation criterion in deportation decisions. The ECHR and the Turkish Constitutional Court take into account factors such as the child’s age, dependence on the parent to be deported, vulnerability, and which country would be more suitable for the child to live in.

In the Üner v. Netherlands decision (App. No: 46410/99, 18/10/2006), the ECHR stated that “the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled” should be evaluated. This approach emphasizes that the best interests of the child should be considered.

 

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