Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families

Concluding observations on the initial report of Turkey *

1.The Committee considered the initial report of Turkey (CMW/C/TUR/1) at its 314th and 315th meetings (see CMW/C/SR.314 and 315), held on 14 and 15 April 2016. At its 325th meeting, held on 22 April 2016, it adopted the present concluding observations.

A.Introduction

2.The Committee welcomes the submission of the initial report of the State party, which was prepared in response to the list of issues prior to reporting (CMW/C/TUR/QPR/1). The Committee also welcomes the additional information that was provided during the dialogue by the large, multisectoral delegation, which was headed by the Permanent Representative of Turkey to the United Nations Office and other international organizations in Geneva, Mehmet Ferden Çarıkçı, and composed of representatives of the Ministry of Labour and Social Security, the Ministry of Justice, the Ministry of National Education, the Directorate-General for Migration Management, the Ombudsperson Institution and the Permanent Mission of Turkey to the United Nations Office and other international organizations in Geneva.

3.The Committee appreciates the constructive dialogue held with the delegation. The Committee, however, regrets that the initial report was submitted on 8 April 2016 only, which did not allow sufficient time for translation into the working languages of the Committee, nor for due consideration by the Committee.

4.The Committee is aware that Turkey, as a country of origin of migrant workers, has made progress in protecting the rights of its nationals abroad. However, the Committee also notes that the State party, as a transit and destination country, faces several challenges in terms of the protection of migrant workers’ rights.

5.The Committee notes that some countries in which Turkish migrant workers are employed as well as the countries to which many migrants in transit in the State party are going are not parties to the Convention, which may constitute an obstacle to migrant workers’ enjoyment of their rights under the Convention.

B.Positive aspects

6.The Committee welcomes the State party’s efforts to promote and protect the rights of Turkish migrant workers abroad, in particular with respect to the right to social security and the right to vote.

7.The Committee notes with appreciation the ratification of or accession to the following instruments:

(a)The Convention on the Rights of Persons with Disabilities, in September 2009, and the Optional Protocol thereto, in March 2015;

(b)The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in September 2011;

(c)The Optional Protocol to the International Covenant on Civil and Political Rights, in November 2006;

(d)The Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, in March 2006;

(e)The Convention relating to the Status of Stateless Persons, in March 2015;

(f)The Council of Europe Convention on Action against Trafficking in Human Beings, in January 2016;

(g)The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, in October 2007;

(h)The European Social Charter, in June 2007.

8.The Committee welcomes the adoption of the following legislative measures:

(a)The regulation providing that Syrians readmitted to the State party following the agreement reached between the European Union and Turkey on 18 March 2016 can be granted temporary protection again upon request, on 7 April 2016;

(b)The regulation on the implementation of the Act on Foreigners and International Protection, on 17 March 2016;

(c)The regulation on combating trafficking in human beings and protection of victims of trafficking, on 17 March 2016;

(d)The regulation on work permits for foreigners who have been granted temporary protection (No. 8375), on 15 January 2016;

(e)The regulation on temporary protection (No. 6883), on 22 October 2014;

(f)The Ministry of Education circular on education services for foreign nationals (No. 2014/21), on 23 September 2014;

(g)The Act on Foreigners and International Protection (No. 6458), on 11 April 2013;

(h)Act (No. 6304) amending the Act on Elections and Electoral Registers and certain Acts, on 9 May 2012;

(i)The circular on foreign national students (No. 2010/48), on 16 August 2010;

(j)The Act on Social Security and Universal Health Insurance (No. 5510), on 31 May 2006.

9.The Committee also welcomes the following institutional and policy measures:

(a)The adoption of the tenth National Development Plan (2014-2018) with a dedicated chapter on migration;

(b)The adoption of the Strategy Document and National Action Plan on Irregular Migration, in 2014;

(c)The establishment of the Directorate-General for Migration Management under the Ministry of the Interior, in 2013;

(d)The establishment of the Office for Turks abroad and related communities, on 6 April 2010.

C.Factors impeding the implementation of the Convention

10.The Committee recognizes that the State party is currently hosting more than 2.7 million Syrian nationals under temporary protection and that it has been providing emergency response assistance to them since 2011, which has put a huge strain on the resources and infrastructure of the State party. It commends the State party for the tremendous support it has provided to Syrian nationals in the world’s largest humanitarian crisis since the Second World War, triggered by the conflict in the Syrian Arab Republic.

D.Principal subjects of concern and recommendations

1.General measures of implementation (arts. 73 and 84)

Legislation and application

11.The Committee welcomes the steps taken by the State party to adopt legislation to protect the rights of migrant workers, including the 2013 Act on Foreigners and International Protection (No. 6458). However, the Committee is concerned that:

(a)The State party has not made sufficient effort to ensure that the provisions of the Convention are reflected in all relevant national legislation;

(b)The guarantees of access to health, education, the labour market, social assistance, interpretation and similar services under the Act on Foreigners and International Protection appear to be discretionary rather than mandatory, given the wording of article 260161 (1);

(c)The lengthy procedures for work permit applications for migrant workers, including those under temporary protection, encourage employers to hire undocumented migrant workers;

(d)Strict procedural rules and challenges encountered in the recognition of professional certificates cause migrant workers to be employed in jobs that are not compatible with their professional and educational backgrounds, including as unskilled labourers.

12. The Committee recommends that the State party take the steps necessary to ensure that its national laws and policies are in line with the provisions of the Convention and consider simplifying procedures for work permit applications and for the recognition of foreign professional certificates.

13.The Committee is concerned about the lack of information on the application of the Convention by domestic courts.

14. The Committee invites the State party to provide in its second periodic report information on the application of the Convention by domestic courts.

Declarations and reservations

15.The Committee is concerned that the State party has made declarations and reservations under articles 15, 40, 45 and 46 of the Convention that may impede the full enjoyment of the rights of migrant workers under the Convention.

16. The Committee recommends that the State party take the steps necessary to withdraw the declarations and reservations made with respect to articles 15, 40, 45 and 46 of the Convention.

Articles 76-77

17.The Committee notes that the State party has not made the declarations recognizing the competence of the Committee to receive and consider communications from State parties and individuals concerning violations of the rights set out in the Convention, provided for in articles 76 and 77 of the Convention.

18.The Committee recommends that the State party consider making the declarations provided for in articles 76 and 77 of the Convention.

Ratification of relevant instruments

19.The Committee commends the State party for ratifying most core international human rights treaties as well as a number of International Labour Organization instruments. The Committee, however, notes that it has not yet ratified the International Convention for the Protection of All Persons from Enforced Disappearance, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, or the following International Labour Organization instruments: the Migration for Employment Convention (Revised), 1949 (No. 97), the Minimum Wage Fixing Convention, 1970 (No. 131), the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), the Private Employment Agencies Convention, 1997 (No. 181), and the Domestic Workers Convention, 2011 (No. 189).

20.The Committee recommends that the State party consider ratifying or acceding to the above-mentioned instruments as soon as possible.

21.Noting that the State party is party to the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees, the Committee is concerned that it maintains a reservation limiting the application of the Convention to States members of the Council of Europe.

22. The Committee recommends that the State party consider withdrawing the reservation relating to the geographical limitation of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

Comprehensive policy and strategy

23.While noting the development in 2015 of the National Action Plan on Migration and Asylum and the Strategy and National Action Plan on Irregular Migration, the Committee regrets that the State party has not provided sufficient information on the specific measures it has taken to implement the Convention.

24. The Committee recommends that the State party adopt, implement and adequately resource a comprehensive migration policy, in line with the Convention and in a gender-sensitive manner. The Committee urges the State party to include in its second periodic report updated information, supported by statistics, on the concrete measures taken to implement the rights of migrant workers set out in the Convention, both in law and in practice.

Coordination

25.While welcoming the establishment in 2013 of the Directorate-General for Migration Management under the Ministry of the Interior, as well as other coordination mechanisms such as the Migration Advisory Board and the Migration Policies Board, the Committee is concerned that the coordination among the institutions and services that deal with the various measures to implement the rights under the Convention is insufficient.

26. The Committee recommends that the State party strengthen its efforts to improve coordination among ministries and agencies at all levels of government for the effective implementation of the rights protected under the Convention, including by ensuring appropriate human and financial resources, as well as capacity for the Directorate-General for Migration Management and other key institutions engaged in handling migration issues.

Data collection

27.While appreciating the State party’s efforts to provide data on migration flows and on other migration-related issues, the Committee is concerned that labour migration statistics in the State party are produced in a fragmented way.

28. The Committee recommends that the State party establish a system for compiling qualitative and quantitative migration-related statistics and information covering all aspects of the Convention, including on migrant workers in an irregular situation, and that it collect detailed data on the status of migrant workers in the State party. The Committee encourages the State party to compile information and statistics disaggregated by sex, age, nationality, reason for entry into and departure from the country and type of work performed, in order to have an effective impact on relevant policies and the implementation of the Convention in line with target 17.18 of the Sustainable Development Goals. The Committee also recommends that the State party ensure the cooperation of its consular and diplomatic representations abroad in order to compile data on migration, including the situation of irregular migrant workers and victims of trafficking. In cases in which it is not possible to obtain precise information, for example, in the case of migrant workers in an irregular situation, the Committee would welcome information based on studies or estimates.

Independent monitoring

29.The Committee welcomes the information in the State party’s report that the Ombudsperson Institution has the power to investigate all complaints made by migrant workers, including those in an irregular situation. The Committee is, however, concerned that:

(a)The Ombudsperson Institution does not have the right to conduct inquiries on its own initiative;

(b)The Act on the Human Rights and Equality Institution of Turkey, which entered into force on 20 April 2016, and under which the Turkish National Human Rights Institution will become the Human Rights and Equality Institution, weakens the monitoring mandate as, for cases of discrimination, the institution will be mandated to investigate human rights violations upon application only;

(c)The Act on the Human Rights and Equality Institution of Turkey does not fully comply with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles). Moreover, the functional and financial independence of the national institution could be detrimental to its work as the national preventive mechanism established under the Optional Protocol to the Convention against Torture.

30. The Committee recommends that the State party seek technical assistance from the Office of the United Nations High Commissioner for Human Rights (OHCHR) with a view to ensuring that: