IV.ULUSLARARASI NECMETTİN ERBAKAN ÜNİVERSİTESİ HUKUK KONGRESİ
THE INDISPENSABLE CONDITION FOR INTERNATIONAL PROTECTION: BEING OUTSIDE OF THE COUNTRY DUE TO THE ABSENCE OF EFFECTIVE AND PERMANENT PROTECTION
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Necmettin Erbakan Üniversitesi Yayınları
In recent times, the emergence of vulnerability in the states’ protection aganist serious human rights violations constitutes the main reason for migration and forms the basic foundation of the concept of asylum. However, since since there is no obligation for states to accept asylum seekers into their countries, asylum is not considered basic human rights. On the other hand, foreigners or stateless persons who have left their country insearh fo effective and permanent protection and seel asylum may be granted international protection status where basic minimum protection standards are ensured. In Turkish law, in the determination of refugee, conditional refugee and subsidiary protection statuses, which are accepted as international protection types in the Law on Foreigners and International Protection (YUKK), it is a common condition for the applicant foreigner or stateless person must have left his/her country as a result of being unable or unwilling to avail himself/herself of the protection of state of origin or former habitual residence due to concerned fear or threat. This situation is also included in the definition of refugee in article 1(A) of the 1951 Convention Relating to the Status of Refugees. It should be emphasized that while determining the refugee or conditional refugee status, the condition of not being able to benefit from protection of one’s state of origin or habitual residence must be based on well-founded fear of persecution. As for subsidiary protection status this condition should stem from the risk of serious harm if returned based on the reasons specified in Article 63 of YUKK. To put a finer point on it, there must be a causal link between the inability to benefit from protection of one’s state of origin or former habitual residence and the respective conditions for refugee, conditional refugee or subsidiary protection statuses. Therefore, it is imperative to adopt a holistic approach when acertaining. The main point stressed when evaluating status determination is the nature of protection. One of the main debates is whether the protection that a person was deprived of and forced those people to leave the country is diplomatic protection or internal protection. This becomes particularly important when the source of well-founded persecution or risk of serious harm is a non-state actor. It is because the vulnerability in protection due to human rights violations may arise from the state’s failure to take necessary and sufficient measures. In this case, whether it is possible for the individual concerned to safely relocate within the country -in other words, the internal flight alternative- is also taken into account. So, the question of whether they could maintain a relatively normal life without encountering undue hardship in the country they came from is considered. However, the general opinion is that the individual who leaves his/her country of origin or residence does not need to have exhausted all opportunities to benefit from protection. In other words, international protection is not seen as a last resort. The main purpose of our paper is to present the fundamental facts regarding the determination of the cases in which the individual may be unable or unwilling to avail himself/herself of the concerned state protection due to well-founded fear of persecution or risk of serious harm. It is also aimed to establish the basic guiding principles, especially by referencing decisions of foreign state courts that adopt the Common Law tradition and the basic principle of European Union law.
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