Travellers Unseen: A Study on the Application of International Refugee Law to Somali Refugees in Turkey

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Abstract

Turkey currently hosts the largest refugee population in the world with an astounding number of four million refugees. Since Turkey stands between Europe and the Middle East, combined with a variety of other factors, it emerges as a popular destination for protection seekers. Somali refugees are among such protection seekers, with especially the young people escaping decades of instability and social conflict in Somalia. However, if it was not for the Convention Relating to the Status of Refugees or Turkey’s peculiar protection system with a variety of temporary statuses, the number would have soared even higher. This study focused on the possible motivations of Somali nationals in coming to Turkey and found that the peculiarities of both the domestic law concerning aliens and refugees and the reservations placed on the 1951 Convention Relating to the Status of Refugees prevent Turkey from becoming a true refugee’s heaven.

Keywords: International refugee law, Somali refugees, conditional refugee, temporary protection, subsidiary protection, geographical reservation, Turkish refugee law, status of refugees in Turkey.

Introduction

Migratory movements, be it migration, immigration, or emigration, are phenomena older than civilization itself that in many ways have been shaping and re-shaping civilization significantly, such as the way the demographic characteristics of entire continents were re-arranged during the Migration Period. Since the dawn of humanity, people have been covering vast spaces of land by whatever means available for social, political, geographical, economic, health-related, or even climate-related reasons. The incentives for human movement have been quite abundant and remain so; whether it is fleeing war, abandoning barren fields in search of lush ones, or escaping plague and disease, the conditions for abandoning one’s home in search of refuge were always present at least in one corner of the world. The reactions to movement of refugees changed in time as civilization advanced and an age of law was heralded. Initially, the efforts to regulate the movement of peoples mostly consisted of local reactions to the oncoming mass of people. With the tragedy of World Wars, especially World War 2, forcing millions to move in search of a life without persecution, refugees became a significant, internationalized, and urgent issue that could not possibly be managed locally. Therefore, the 1951 Convention Relating to the Status of Refugees was finally drafted to help regulate the legal status and treatment of refugees, and it still continues to serve as the basis of international refugee law. Apart from the new international applications, countries still reserve the right to shape their legal approach to migratory flows. In light of international refugee law and Turkey’s obligations towards relevant international authorities, this paper aims to analyze the applications of refugee law to Somali refugees in Turkey as a community that largely goes unnoticed in public view compared to other significant refugee populations from, for example, Syria and Afghanistan. The political, economic, and social characteristics of Somalia are analyzed in terms of stability to reveal the possible motivations and incentives for seeking refuge, the possible demographic characteristics of Somalis in Turkey are provided to an extent, and Turkey’s obligations with regard to international refugee law and relevant international organizations are analyzed and applied to Somali refugees in Turkey.

2. Literature Review

Preliminary research on literature conducted by the authors highly suggests that a study focusing specifically on the application of law to Somali refugees in Turkey was either not conducted or not published for public access. Therefore, this study made use of international treaties regarding international law, and other studies on Somalia with regard to its history, politics, social characteristics etc.

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In his paper titled Somalili Mültecilerin Sosyo-Kültürel ve Dinî Hayatları Üzerine Sosyolojik Bir Araştırma: Konya Örneği (A Sociological Study on the Sociocultural and Religious Activities of Somali Refugees Using the Example of Konya), published in 2009, Mehmet Gedik conducts research using hybrid research methods to analyze the sociocultural and religious activities of Somali refugees before and after they moved to Konya, Turkey. Various survey questions were posed to 25 families, and 7 individuals were interviewed. The research showed that adaptation problems were more likely to occur for adults compared to children (Gedik, 2009).

In Somalili Göçmenlerin Türkiye Üzerinde Batı’ya Göç Güzergahları (The Migration Routes of Somali Migrants and Refugees in Turkey on their Way to the West), dated 2019, Zekeriye Bakal Ali and Selver Özözen Kahraman aim to determine the pushing factors for Somali nationals choosing Turkey as a destination for immigration and migration, to ascertain the relevant migratory routes, and to analyze the motivations for using Turkey as a transit country. Using qualitative methods, 21 questions were posed to 30 Somali nationals, 16 of whom were male and 14 were female, using Turkey as a transit country. The participants aged 18-24 were mostly single while the ones aged 25-34 were mostly married but were moving alone. Participants aged 35-44 were mostly accompanied by their families. Female participants aged 18-34 had spouses abroad and were moving with the purpose of family reunification. The study shows that these individuals were in Turkey by legal means and were preparing to move to destination countries legally but would resort to illegal means if they were unable. The results also show that participants with higher education levels starting from high school were able to move more easily and legally while lower education levels indicate otherwise, and that participants with lower education levels often resorted to illegal means and routes (Ali and Kahraman, 2019).

In her research paper published on Polis Bilimleri Dergisi in 2008, Sema Buz presents the results of her two previous field works conducted in 2002 and 2006 and aims to give information about the social profiles of the two groups in question. As the result of her field work in 2006, where 20 female and 20 male participants were interviewed in depth, Buz concluded that Somali refugee women generally had 3 or more children, and lacked any sort of education or vocational training, having no profession. They had left Somalia mostly due to being unable to stay since they were subject to rapes after their husbands were killed during civil conflict. The study also showed that Somali refugee men were mostly married, although they came to Turkey without their families and generally had lower levels of education (Buz, 2008).

3. Methodology

This paper relies heavily on readily available data previously gathered by the authors for previous relevant research efforts on international refugee law and its applications, as well as political and social stability in Somalia, and the possible demographic characteristics of Somali refugees as well as their motivations for choosing Turkey for protection. Relevant research papers, international treaties such as the Convention Relating to the Status of Refugees, statutes of relevant international organizations, data from relevant state authorities such as the Turkish Ministry of Interior and its Directorate General of Migration Management (DGMM), data and statements from relevant organizations such as the United Nations High Commissioner for Refugees (UNHCR) were used for analysis.

4. An Overview of Somalia

Located in Northeastern Africa, Somalia covers most of the Horn of Africa. It has generous coastlines: 1400 kms to the Gulf of Aden to the north, and 1800 kms to the Indian Ocean to the east. (Somali Ministry of Education, 1971 as cited in Ali and Kahraman, 2019). Its capital is Mogadishu, and it has a population of roughly 16 million with a land area of 637,657 km².

4.1. Ethnic Composition and Legal Applications

The population is composed of ethnic Somalis with a majority of 85%, and the remaining 15% consists of various other ethnicities. Official languages are Arabic, Italian, and English. After gaining independence from Britain, the Republic of Somalia was founded in 1960. The country is still in the process of implementing a parliamentary system, and the current constitution is the Federal Republic of Somalia Provisional Constitution of 2012. The legal system is a combination of a traditional law system called the Heer or Xeer, combined with civil law and sharia law (Yılmaz, 2014). Before the rule of colonial powers, the country was ruled with Xeer combined with sharia law (Lewis, 1994 as cited in Yılmaz, 2014).

There are several categories of identity in Somalia, including conservative Islamist identity, nationalist identity, and clan identity. The clan identity is quite important and multifunctional, as it serves to satisfy the individual need for identity, to facilitate recognition among people, to allow people to receive aid from their clans in times of need, and the fact that clan identity provides a political identity. However, “the clan identity emerges as the most destructive element of Somali culture”. The law of talion is also quite harmful (Elmi, 2012 as cited in Yılmaz, 2014). Punishments are more on a clan level, rather than on an individual level. National identity, on the other hand, is not quite prominent as the society rarely interacts with foreigners. Islamic identity is extremely significant, with almost the entire population being Sunni Muslim.

The Somali society is divided by the clan-based societal structure, but also by various cultural factors such as ethnicity, language, status, and by economic differences such as profession and class. Previously, not all Somali nationals belonged to clans. Somali society includes groups that do not belong to any caste, identified by ancestral family and/or profession; therefore, while most belong to clans, others are entirely out of the clan system. Additionally, clan membership is not a lifetime membership determined at birth. Switching between clans is possible, and it is actually quite widespread at the southern provinces. Clan membership can be swapped for a new one for marriage, grazing, land ownership, and labor purposes or for political or personal reasons (Besteman, 1996).

4.2. History

Somalia was once divided between colonial powers such as Britain, France, Italy, and Ethiopia. The age of colonialism in Somalia was characterized with frequent changes of regime and unstable governing authority. While Britain claimed the north of modern Somalia, the south was shared between Italy and Britain, with the Jubba River serving as the border, until Italy took over at the beginning of 1920s. Northern Somalia later became the British Somaliland, as southern Somalia became the Trust Territory of Somaliland under Italian rule by UN mandate. Therefore, the differences in language, politics, law, and economy under colonial rule divided the Somali society and created different hierarchies as much as they contributed to its dynamism (Besteman, 1996). At the end of the trusteeship period, both Northern Somalia and Southern Somalia declared independence and later merged as a greater state, the Republic of Somalia (Elmi, 2012:55, as cited in Yılmaz, 2014).

Having maintained neutrality for several years, Somalia could no longer evade the impact of the Cold War due to its strategic location at the Horn of Africa. It first fell under the influence of the USSR and turned into a socialist state. Later, a coup d’état took place with Siad Barre at the helm. After failing to take control of the state, Barre resorted to authoritarianism. After the Barre regime was toppled, a massive power vacuum occurred and a significant race for domestic power erupted, giving way to a great civil war (Gettleman, 2009 as cited in Yılmaz, 2014).

With the Cold War coming to an end, and the influence of the Soviets on Somalia fading, US began to make a move to consolidate its influence in the country. Somali militants resisted the American influence, downing two Black Hawk type helicopters, which led to both the US and the West in general keeping their distance for the next decade.

As the country lacked a strong governing power, groups claiming Islamic ideologies began to emerge (Mansur, 2005 as cited in Yılmaz, 2014). One of such groups, Al-Shabaab, swore allegiance to Al-Qaeda back in 2010 and subsequently took its place among groups posing threat to international security. There is general consensus on Al-Shabaab being founded in 2006 as a resistance force against the Ethiopian invasion, and it is therefore considered to be the result of a larger group of problems that plague the country; stemming from the conflict regarding resources, military issues happening after the colonial powers withdrew, the clan identity increasingly becoming political, the ease of obtaining weapons, and the high rates of unemployment (Elmi, 2012 as cited in Yılmaz, 2014).

5. Somali Refugees in Turkey

The conflict in the Middle East, including the Iranian Revolution, the Iraq-Iran War, and the outbreak of the Arab Spring back in 2010 impacted Turkey without a doubt. Various reasons such as the significance of its geographical position, the relative ease of obtaining a visa, and the less-than-strict control mechanisms regarding smuggling makes Turkey a preferred destination (Kartal and Başçı, 2014). Turkey turned into an increasingly popular destination for protection as refugee flows from both Middle Eastern and African countries including Iraq, Iran, Somalia, and Sudan increased significantly during 1990s, especially due to heightened political tension and conflict in the Middle East (Erdil, 2020). A report from the International Organization for Migration (IOM) claims that more than 100.000 Somali nationals escaping political conflict in Somalia has been the principal factor contributing to the increase in persons seeking protection in 2010 (Kartal and Başçı, 2014).

Turkey hosts a significant refugee population and frequently receives refugees from countries like Somalia, Sudan, Eritrea, and Nigeria, where life standards are relatively lower, and political and economic stability are lacking. However, most refugees consider Turkey not as the destination country, but a transit country on the way to a destination country. A report from the IOM states that there were 3.598 Somali nationals in Turkey under either “conditional refugee” or “subsidiary protection” statuses as of 2016 (Aygül, 2008).

Migratory flows from Somalia date back to early 20th century, however, the highest numbers have been recorded in the recent years as poverty and political instability escalated significantly. First the male spouse goes abroad, and then finances the female spouse, allowing them to come to Turkey by legal means. They express a willingness to move to European countries by legal means as well, although they are also willing to resort to illegal means if they have to. Refugees and migrants of lower education levels especially resort to illegal means (Ali and Kahraman, 2019).

Escaping from the civil war in Somalia, Somali refugees’ first stop is Saudi Arabia. However, unable to withstand the high cost of living in Saudi Arabia, they move to Syria, where another civil war broke out recently, leading them to choose Turkey as their next stop. With the Syrian Civil War, irregular migration surged. However, as mentioned before, refugees mostly consider Turkey as a transit country, moving to Western countries after temporarily staying in Turkey (Ali and Kahraman, 2019).

As relations between Iran and Somalia deteriorated in 2016, migratory flows to Turkey through Iran decreased, as Somali refugees had been seeking protection in Iran until 2016, escaping the sectarian conflict in Somalia. As tensions between Iran and Somalia increased, the Shia population in Somalia chose to escape Somalia and go to Western countries through Turkey instead of staying in Iran. Many Somali students first moved to Sudan; however, after inner conflict broke out in Sudan, they were deceived with promises of continuing their studies in Turkey and subsequently arrived in Turkey (Ali and Kahraman, 2019).

Most Somali women seeking protection in Turkey have three or more children, and they have little to no education or no jobs whatsoever. The pushing factors for their arrival in Turkey mostly have to do with the fact that many have lost their husbands to civil war or clan conflict in Somalia, and that they did not lead safe lives. Meanwhile most Somali men seeking protection in Turkey are married, although they do not bring their families, and have lower levels of education (Buz, 2006 as cited in Buz, 2008). Somali women generally expressed that their primary objective was to get to Italy, but they were deceived by the people seemingly aiding them. They also expressed that due to the great distance between Turkey and Somalia, the journey is often harsh. They consider Turkey to be a temporary country providing them protection. However, in case they cannot obtain relevant statuses or fail to move to Europe, they plan to settle down in Turkey (Buz, 2008).

6. Turkey’s Obligations Regarding International Refugee Law

According to the World Bank, Turkey is currently host to the largest refugee and protection seeker population in the world, with approximately 4 million people. Due to its geographical location and its proximity to both Europe, with high life standards and high Human Development Index Scores, and the Middle East, forever rife with conflict; Turkey is a popular destination for individuals seeking protection. Therefore, international treaties regarding refugees are doubly important for Turkey.

It can be said that there are three main treaties on an international scale that Turkey is party to regarding international refugee law: first and foremost, the 1951 Convention Relating to the Status of Refugees, and the 1953 Convention for the Protection of Human Rights and Fundamental Freedoms.

When it comes to refugees, the fundamental convention serving as the backbone of international law is the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, commonly referred to as the 1951 Geneva Convention, and also regarded as the statute of the United Nations High Commissioner for Refugees (UNHCR). It must be noted that not all states parties to the Convention are parties to the Protocol and vice versa, although most states are parties to both. Additionally, signatories of the Refugee Convention and/or its Protocol are referred to as “states parties”. Turkey has signed the Convention on August 24, 1951, with the accession to the 1967 Protocol taking place on July 31, 1968.

The obligations of all states parties to the Refugee Convention and/or its 1967 Protocol, are laid out separately in their respective texts. Therefore, the principles and obligations detailed henceforth apply to Turkey, as well as any other state party to the Convention and/or the Protocol, and Turkey performs its relevant duties diligently.

First, all United Nations (UN) member states and all signatories of the 1951 Refugee Convention and/or the 1967 Protocol of the Refugee Convention have obligations to carry out towards UNHCR. Article 35 states that all states parties must cooperate and share related data with UNHCR. Similar to the Resolution 428, all states parties are expected to act in accordance with the Convention in their treatment of displaced persons. They are to treat refugees without any discrimination in any given field, such as education. Refugees’ stay in their territories is to be considered lawful residence. Basically, refugees are to be accorded the same fundamental rights as any citizen and in the same circumstances, are to be treated like any other alien. In a law context, an “alien” refers to non-citizens of a respective country, also referred to as a “foreign national”. The principle of non-refoulement is to be respected and irregular entry is not to be punished. Article 33 of the 1951 Refugee Convention states that, except on grounds that the refugee constitutes a threat to the security of the respective country, a contracting state cannot expel a refugee into a territory where their life would be in danger; this is referred to as “the principle of non-refoulement” (Alişiroğlu, 2021).

The 1951 Convention is doubly important for the refugee context in Turkey, as Turkey adheres to the definition of “refugee” stated by the Convention and has placed a geographical reservation to Article 1 on the Definition of the Term “Refugee”. Article 1, paragraph A offers states parties two definitions to choose from. Art.1, para. A(1) states that the term “refugee” shall apply to any person that was considered a refugee under previous conventions, such as the Constitution of the International Refugee Organization. Art.1, para. A(2) states that the term “refugee” shall apply to persons who:

“As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

Art.1, para. B(1) then asserts that states parties to the Convention will assume that the “events occurring before 1 January 1951” either refers to the events occurring in Europe, as per B(1)(a), or to the events occurring in Europe and elsewhere, as per B(1)(b). Due to the reservation placed by Turkey, Turkey adheres to the definition stated by B(1)(a). Consequently, only nationals of European countries may be given the status of refugee in Turkey.

Turkey, as a member of the Council of Europe, signed the Convention for the Protection of Human Rights and Fundamental Freedoms on November 4, 1950, and it was ratified by the Grand National Assembly on May 18, 1954. The Convention, more commonly referred to as the European Convention on Human Rights, does not explicitly refer to refugees or asylum seekers, but it addresses the legal situation concerning aliens. Protocol No. 7 to the Convention, Article 1 on the procedural safeguards relating to expulsion of aliens states that an alien residing lawfully on a territory cannot be expelled except on legally justified grounds. Hence, Turkey guarantees the non-expulsion of refugees and asylum seekers unjustifiably and the application of relevant legal procedures.

Turkey is also party to the relatively new European Social Charter (ESC) as a member of the Council of Europe. Signed by Turkey on October 6, 2004, the Revised ESC also reaffirms the states parties’ loyalty to the 1951 Geneva Convention and its 1967 Protocol, stating that refugees will be granted “treatment as favourable as possible, and in any case not less favourable than under the obligations accepted by the Party under the said convention and under any other existing international instruments applicable to those refugees” (ESC(r) Appendix, 1996).

7. Turkey’s Obligations Towards Relevant International Organizations

Turkey is member to the most prominent international organizations whose field of work include refugees and immigration; most notably UNHCR, and International Organization for Migration (IOM).

Turkey is a UN member state, and it is a state party to both the 1951 Refugee Convention and its 1967 Protocol. Article 35 of the Convention states that all states parties are obligated to cooperate with UNHCR. Therefore, it has obligations towards UNHCR, the UN refugee agency, as per the relevant UN resolutions, the Convention itself, and the Charter of the United Nations. Cooperation with IOM as part of the UN system is also mostly tied to the Charter.

With regard to both UNHCR and IOM, The Charter lays out several relevant obligations towards cooperation. First of all, Article 2 of the Charter states that all members agree to assist in any UN action that conforms to the Charter and asserts that non-member states shall also be encouraged to do so as long as it serves the establishment or maintenance of international peace and security. Under Chapter IX on international economic and social cooperation, Article 55 states that UN shall promote solutions to international social and related problems and that fundamental human rights will be respected universally. Following Article 55, Article 56 asserts that all member states therefore pledge to take joint and separate action wherever necessary to fulfil the purposes laid out in Article 55. Considering that refugee flows are a social issue considered a threat to peace and security, and that they result from conflict in the first place, and that member states are obligated to take action to fulfil Article 55; compliance with the abovementioned articles means to comply with relevant UN agencies including UNHCR and IOM.

The obligations of UN member states are laid out in the General Assembly Resolution 428 (V) dated 14 December 1950. According to Resolution 428, all UN member states are called upon to comply with the activities of UNHCR and are encouraged to cooperate with it whenever necessary. They are especially asked to become parties to not only the 1951 Convention and the 1967 Protocol, but also other international conventions and treaties on the protection of refugees. Members are called upon to form “special agreements” with the UNHCR in order to facilitate the execution of UNHCR’s duties and to help reduce the number of refugees. Members are to admit refugees into their respective territories without discrimination and to assist UNHCR in its duties such as promoting the voluntary repatriation of refugees or facilitating their naturalization and to facilitate resettlement and transfer of assets. They are also obligated to inform the UNHCR on the condition of refugees, any related law and regulations, and related statistical data. The Statute of UNHCR was also shared with states non-members with the aim of promoting their cooperation (Alişiroğlu, 2021). Turkey cooperates with UNHCR in many aspects, such as the creation of immigration policies, and designating suitable third countries for persons seeking protection but unable to receive the refugee status in Turkey.

Turkey is a member of the IOM, which is mostly concerned with the good governance of migration. IOM is part of the UN system and is guided by the principles laid out in the Charter of the United Nations. Therefore, Turkey has obligations towards IOM mostly due to its obligations deriving from the Charter. Contrary to its obligations towards UNHCR, Turkey’s obligations towards IOM are not as comprehensive. Still, Turkey cooperates with IOM especially with regard to the transportation of refugees.

8. The Legal Status of Somali Refugees in Turkey

As detailed above, only nationals of European countries can possess the refugee status in Turkey. Since Somalia, being an African country, does not satisfy this criterion, Somali nationals seeking protection in Turkey are not considered refugees. There are three categories of protection in Turkey that are applied to nationals of non-European countries: conditional refugee, temporary protection, and subsidiary protection.

Nationals of non-European countries, as per the 1951 Geneva Convention, Article 1, fleeing from persecution or unable to benefit from the protection of their countries for various reasons, fall under the status of conditional refugee. Currently, the temporary protection status only extends to Syrians fleeing from the civil war and unrest in Syria. Subsidiary protection, on the other hand, applies for either stateless persons or persons unable to benefit from the conditional refugee status. Therefore, Somali nationals are granted conditional refugee status, and they are allowed to stay in Turkey temporarily until they are resettled to a suitable third country (DGMM). Turkey cooperates with UNHCR in the process of designating suitable third countries for resettlement, and in the following administrative and logistics processes.

The situation of Somali conditional refugees is therefore applicable to nationals of any non-European country, and the processes are identical, which is why Turkey’s geographical reservation to the 1951 Geneva Convention is quite controversial among human rights defenders and certain international organizations, criticised for being highly discriminatory. Amnesty International had even argued that Turkey cannot be a treated as a safe third country due to such limitations (2016).

Therefore, it might be concluded that in order to settle down in Turkey, Somali nationals have to migrate through marriage, education, etc. instead of seeking protection.

Conclusion

Turkey is often made out to be a refugee’s heaven in international media, largely due to hosting the largest refugee population in the world. However, the peculiarities of both Turkish domestic law concerning aliens and refugees, and the geographical reservation placed on the Convention Relating to the Status of Refugees, indicate that Turkey is far from being a heaven for refugees. These legal mechanisms effectively prevent the biggest flows of protection seekers from the world’s most conflict-ridden regions with spectacularly low Human Development Index scores, including Somalia, from obtaining refugee status in Turkey. Non-European nationals may only obtain temporary statuses including conditional refugee, to be resettled to suitable third countries later. As it was out of the scope of this research, the options for migrants were not explored. However, it should be mentioned that only migrants may settle down for good in Turkey, provided that they follow the requisite administrative procedures. Therefore, all factors combined indicate that while Turkey is an ideal transit country between the West and the Middle East, it is not a destination country for refugees. The geographical reservation placed on the 1951 Geneva Convention either demonstrates the foresight of the Turkish policymakers of old or it reflects the traditional foreign policy of the Republic characterised in part by keeping a distance from the perpetual instability of the surrounding regions.

In conclusion, like many other protection seekers coming from outside of Europe, Somali nationals’ stay in Turkey as conditional refugees is bound to be rather brief, not rousing the interest of media and keeping them out of the public eye unlike Syrians with a special temporary protection status and an undeniable population. Therefore, they remain travellers unseen, stopping briefly in Turkey, then continuing their quest for a safer life out of Turkey.

Ayşenur Alişiroğlu

Eylem Zehir

Göç Çalışmaları Staj Programı

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