Foreign Policy as a Basis for Deportation in Light of Turkish and American Court DecisionsErman Eroğlu
States must exercise their sovereignty on reasonable grounds by obeying the generally accepted principles of international law. How the generally accepted principles of international law are interpreted may vary from state to state. Some legal systems such as that of the United States of America may use foreign policy as a basis for deport an alien even if the alien is not involved in any activity against the state. This study examines alien deportation in terms of state foreign policy and elaborates upon the test to be applied based on public and foreign policy by reviewing the United States Supreme Court judgments, Turkish Constitutional Court rulings, and the Turkish Council of State decisions on alien deportation. The paper discusses foreign policy as a basis for deportation in Turkish law in terms of public policy and national security and proposes practical solutions for dealing with such circumstances in future research.
Türk-Amerikan Yargı Kararları Işığında Yabancıların Sınır Dışı Edilmesinde Dış Politika SebebiErman Eroğlu
Devletler, egemenlik gücünü, uluslararası hukukun genel kabul görmüş ilkelerine uyarak makul gerekçelerle kullanırlar. Uluslararası hukukun genel kabul görmüş ilkelerinin yorumu ülkeler nezdinde değişkenlik gösterebilmektedir. Bazı hukuk sistemlerinde, Amerika Birleşik Devletleri’nde olduğu gibi, ülkenin dış politikası yabancıyı sınır dışı edebilmek için sebep oluşturabilir. Yabancının varlığı ya da yapmış olduğu eylemler üzerinde bulunduğu ülkenin dış politikasına tezatlık oluşturması halinde yabancı sınır dışı edilebilmektedir. Yabancıların sınır dışı edilmesine ilişkin olarak Amerikan Yüksek Mahkemesi, Anayasa Mahkemesi ve Danıştay kararları kamu düzeni bağlamında incelenmiş ve sınır dışı edilme gerekçelerinin dayanakları irdelenmiştir. Bu makalede, Türk hukukunda yabancının sınır dışı edilme sebebi olarak dış politika unsuru kamu düzeni ve milli güvenlik açısından ele alınmakta ve çözümler önerilmektedir.
Due to being directly linked to fundamental rights and freedoms as considered under international law, the alien expulsion and deportation process has been notably shaped by ethical principles, peculiarly in the sphere of human rights. Pursuant to the commonly accepted interpretation of customary international law, the subjects of entry, residence, settlement, and departure of aliens are considered within the exclusive power of each state. States’ exclusive power regarding the entry of aliens, which also covers their expulsion and deportation, is known as state sovereignty in international law. The power to expel is a critical power states hold, peculiarly with regard to longterm alien residents who have been granted permission to reside in a state indefinitely. States are entitled to exercise jurisdiction at their borders; however, they must do so in view of their human rights obligations. In other words, the limitation on states’ power with regard to excluding aliens from their territory is drawn by the international human rights standards as the restrictions are being imposed upon state sovereignty by customary international law. Therefore, states must exercise their sovereignty on reasonable grounds by obeying the generally accepted principles of international law. How the generally accepted principles of international law are interpreted may vary from state to state. Some legal systems such as that in the United States of America may use foreign policy as a basis for alien deportation even if the alien is not involved in any activity against the state. Furthermore, the presence of aliens may be grounds for expulsion and deportation. This study examines alien deportation and expulsion in Turkey based on foreign policy in light of Turkish and American court rulings.
After determining the definition of “alien” in both American and Turkish law, the study then examines deportation as a term, which has different meanings in legal systems, and its scope in terms of the literature and Turkish and American legislation. When considering the definition of deportation in Turkish law, the basis for deportation is categorized as: (1) security and related grounds, and (2) false documentation, fraud, and misuse of visas and permits. By evaluating the basis with regard to the Foreigners and International Protection Act of Turkey (FIPA; Act No. 6458) and then applying the American policy regarding the foreign matters deportation test as explicitly stated in the reasoning of the U.S. Department of Justice’s Executive Office for Immigration Review, Board of Immigration Appeals regarding Ruiz-Massieu to Turkish law, public policy (i.e., ordre public) and the basis of FIPA’s first category with regard to national security may be a reason for deporting an alien from Turkey. To this end, foreign policy as a basis for alien expulsion from Turkey may be considered under public policy and the basis of national security. This study will thus examine public policy in Turkish law. Whilst the debate about the slippery definition of the public policy is ongoing, one can infer from mainstream Turkish scholars that public policy addresses the social, moral, and economic values that bind a society together and are shaped by morality, the fundamental rule of law, and the policy considerations underlying prevailing laws.
When reviewing the Turkish Constitutional Court’s decisions as well as the Turkish Council of State’s decisions regarding alien deportation with respect to the basis of public policy, ambiguity exists about whether foreign policy-related matters may be a basis for expulsion. In this context, the study will scrutinize Turkish court rulings to ascertain the applicable deportation test in terms of its public policy. By evaluating the rulings from past cases, this study has deducted the deportation test to apply is based on the alien’s activity. An alien who does not engage in any activity against Turkey’s public policy or national security is not deportable. Regarding this case, the deportability of an alien who takes part in a protest against Turkish foreign policy is ambiguous in terms of public policy and the basis of national security. According to the U.S. Immigration and Nationality Act of 1965, an alien may be deported if their presence in the United States is in conflict with the United States’ foreign policy. In this case, ambiguity exists when applying the American standards for alien deportation in Turkey as to whether the presence of an alien who jeopardizes Turkish foreign policy is deportable. Before the FIPA was ratified in 2013, the basis of foreign policy as a general security or political and administrative requirement under the Residence and Travel of Foreigners in Turkey Act (RTFTA; Act No. 5683 was exercisable for expelling an alien from Turkey. This study proposes a new solution for dealing with such situations by considering past legislation and court rulings. In conclusion, the foreign policy matters regarding alien deportation from Turkey is unclear. This ambiguity must be resolved from a wider perspective by considering US practices and must be supported by legislation.
This study focuses on alien deportation in terms of state foreign policy. This paper is divided into four sections. The first section introduces the background of the study. The second section considers the term “alien” and the grounds for deportation with regard to both the United States’ and Republic of Turkey’s legal systems. The third section discusses foreign policy as the basis for deportation in Turkish law in terms of public policy and national security and proposes practical solutions for dealing with such circumstances. Finally, the fifth section provides concluding remarks and makes some proposals for future research.