The emergence of social rights of refugees coincided with the international recognition of human rights. Currently, the main sources for the inclusion and protection of refugees’ social rights are the provisions of international human rights instruments. Although they have not been ratified by all States, the relevant human rights instruments provide a framework for the rights of refugees and the related protection procedures and shed light on the issue of “social rights of refugees”.
Additionally, there is no obstacle to persons seeking asylum in order to escape a legitimate fear of persecution benefiting from certain standards foreseen for “everyone” in international human rights instruments in order to maintain their lives “humanely” during their stay in the country. The Universal Declaration of Human Rights exemplifies the bundle of rights under the heading “an adequate standard of living” for “everyone” with the right of every person to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, health care and necessary social services, as set out in Article 25.
In this article, right to education as well as access to healthcare services of refugees are evaluated within the frame of international conventions and Turkish state law.
1. Right to Education and Training
The right and freedom of refugees to receive education and training in Turkey is guaranteed by Article 42 of the Constitution, which recognizes that no one may deprived of the right to education and training. However according to Article 16 of the Constitution, refugees are subject to different rules and regulations than citizens are regarding this privilege.(1)
1.1. International Protection Status Applicants in the Scope of Education
Firstly, the Geneva Convention obliges States Parties to treat refugees in the same manner as citizens with regard to basic education. Prior to the entry into force of the YUKK, the Asylum Regulation recognized the right of refugees and asylum-seekers to receive education limited to the period of their stay in Turkey and subjected the exercise of this right to the general provisions of Turkish law for refugees in general (Art. 27).
Specifically, when the relevant regulations of the EU are examined, it is seen that the Council Directive 2003/9/EC of 27.01.2003/9/EC (2), referred to as the ‘Minimum Conditions Directive’, imposes an obligation on Member States to provide young children of asylum seekers and young children seeking asylum with access to the education system on a similar basis to that of their own nationals, as long as they or their parents are not subject to an expulsion order, but recognizes that Member States may provide that such access shall be limited to the state education system (Art. 10). The Qualification Directive, which applies to foreigners who have refugee or subsidiary protection status in the Union, has adopted the principle that all minors granted refugee or subsidiary protection status should be given full access to the education system on the same terms as nationals of Member States (Art. 27/1). Adults granted refugee or subsidiary protection status will be allowed to benefit from general education, further education or retraining under the same conditions as third-country nationals lawfully residing in Member States (Art. 27/2). The Directive subjects adults with international protection status to the same standards as other refugees who are lawfully residing in Member States when it comes to exercising their right to education. In this context, it can be said that the same principle is generally adopted in Turkish law; since the YUKK only states that international protection applicants or international protection status holders and their family members have the right to education and training services in Turkey (Art. 89/1), it is the legal regulations in Turkish law regulating the right to education and training granted to refugees in general that will determine the procedures and principles on the subject. ‘The Circular on Foreign Students’ issued by the Ministry of National Education is one of these regulations. The Circular was created to specify the guidelines to be followed in the education and training of foreign students, stateless people, asylum seekers, or children of refugees and asylum seekers, with the exception of higher education. There are no provisions in Turkish Law restricting the right of refugees or asylum-seekers to education and training in high school or higher education institutions other than primary and secondary education. As a matter of fact, the ‘Regulation on Foreign Students Studying in Turkey’, which regulates the arrival to Turkey, admission to educational institutions, departure, relevant institutions and organizations, obligations and other issues of foreign students studying in educational institutions of all degrees and branches, enables foreign students to study in educational institutions of all degrees and branches in Turkey upon fulfillment of the obligations set out in the Regulation (unless otherwise stipulated).
1.2. Refugees Benefiting from Temporary Protection
As a matter of fact, the right to education and training of refugees benefiting from temporary protection is specifically regulated in the Temporary Protection Regulation. Pursuant to the Regulation, education services will primarily be provided to those in temporary accommodation centers to the extent possible, and temporary protected persons outside temporary accommodation centers may also benefit from the services in these centers to the extent possible (Art. 38) (3). Depending on demand, language training, vocational training, skills and hobby courses for all age groups can also be organized in temporary protection centers (Art. 28/1-c). Pursuant to the Regulation, pre-school education may be provided within the scope of education and training services, while the education and training activities of those of primary and secondary education age will be carried out within the framework of the relevant legislation of the Ministry of National Education. The procedures and principles regarding the associate, bachelor’s, master’s and doctoral education of those under temporary protection will be determined by the Council of Higher Education. As can be seen, the right to education and training is also recognized for refugees benefiting from temporary protection; however, the conditions and procedures are subject to the legislation of the relevant public institutions and organizations. When we look at the EU regulations on the subject (4), it is seen that the EU Temporary Protection Directive imposes an obligation on Member States to ensure that persons under the age of 18 benefiting from temporary protection benefit from the education system of the host Member State under equal conditions with its citizens. However, in the case of adults, it does not regulate this as an obligation, recognizing that Member States may allow adults to benefit from the education system (Art. 14/2).
2. Right to Access to Social Welfare/Services and Right to Healthcare
Generally, everyone has the right to health and social welfare, which is protected by several international human rights organizations and treaties. The Geneva Convention requires States Parties to treat refugees legitimately resident in their countries in the same manner as their nationals with regard to social welfare and subsistence when it comes to providing them with social welfare and services. In EU law, the Qualification Directive obliges Member States to ensure that beneficiaries of refugee or subsidiary protection status benefit from social welfare services under the same eligibility conditions as the Member State granting such status provides to its nationals (Art. 28/1).
2.1. International Protection Status Applicants in the Scope of Healthcare
The YUKK generally stipulates that international applicants or international protection status holders in need may be granted access to social assistance and services, but unlike the Qualification Directive, it does not stipulate that access to these rights or services must be under the same eligibility conditions as Turkish citizens (Art. 89/2). Apart from the YUKK, the Law No. 3294 on Encouragement of Social Assistance and Solidarity, which will be applicable in the context of international protection, also recognizes that its purpose is to assist citizens in poverty and in need and, where necessary, those who have been admitted or who have arrived in Turkey by any means whatsoever, to ensure the equitable distribution of income by taking measures to reinforce social justice, and to encourage social assistance and solidarity (Art.1). Although it is clear from the Law’s text that both individuals seeking international protection and those with such status may receive social assistance as a result of the Law, it is not possible, in the opinion of some, to infer that this benefit will be provided on an equal footing with Turkish citizens.
Furthermore, the YUKK stipulates that, except for those whose applications for international protection have been rejected and whose requests will be subject to rapid assessment, the applicant who is found to be in need may also be granted an allowance within the framework of the procedures and principles to be determined by the Ministry with the consent of the Ministry of Finance (Art. 89/5). The YUKK stipulates that refugees who have applied for international protection status and refugees who have acquired this status shall be subject to the provisions of the Social Security and General Health Insurance Law No. 5510. The premiums of those who will benefit from general health insurance will be paid by the Directorate General; however, depending on their ability to pay, all or a certain percentage of the premium will be demanded from these persons (Art. 89/3-a). In terms of Law No. 5510, refugees who apply for international protection or who have international protection status will be considered as general health insured from the date they apply for international protection or receive international protection status and start to benefit from protection, care and rehabilitation services free of charge (Art. 60/c-2, Art. 61/b). Therefore, both applicants for international protection status and those who have been granted this status will be able to benefit from the health services available to those who are considered to be generally insured under Law No. 5510. When we look at the EU regulations on the subject, we can see that the YUKK follows the same principle as the Qualification Directive in regulating the right to benefit from health services for international protection status holders. The Directive also imposes an obligation on Member States to ensure that persons benefiting from refugee or subsidiary protection status benefit from health services under the same conditions of eligibility that the Member State granting such status provides to its nationals (Art. 29/1).(5) However, the YUKK is more comprehensive than the Minimum Conditions Directive in that it recognizes international protection applicants as equal to those who have acquired this status and Turkish citizens who have general health insurance in terms of access to health care services, which includes treatment of basic illnesses and emergency care for asylum seekers.
Pursuant to the YUKK, persons with special needs will be prioritized in terms of access to health and social assistance services, as in other rights, and persons who have been subjected to torture, sexual assault or other serious psychological, physical or sexual violence will be provided with adequate treatment to address the damage caused by such acts (Art. 67).
2.2. Refugees Benefiting from Temporary Protection
Finally, the Temporary Protection Regulation recognizes that refugees who fall within the scope of this protection and who are in need may benefit from social assistance under the Law No. 3294 on Social Assistance and Solidarity Encouragement (Art. 30).
At the present time, the principles regarding the provision of health services and the content of these services are regulated in Article 27 of the Regulation. When the mentioned article examined, it is understood that refugees benefiting from temporary protection can benefit from basic and emergency health services and patient co-payment will not be charged for the treatment and medicines within this scope. With the exception of vaccinations, these refugees will not be provided with health services that are not covered by the Social Security Institution (Art. 27/1-b). In this way, the Regulation has linked the access of refugees under temporary protection to healthcare services on the same basis as the EU Council’s Temporary Protection Directive, which has been criticized for limiting healthcare services for beneficiaries of temporary protection to emergency care and treatment necessary for illnesses.
Overall, the process for providing health care is governed by AFAD Circular No. 2014/4, another guideline on the health benefits temporary protection recipients in Turkey may get. As a result, it is crucial that individuals receiving temporary protection receive medical care in the provinces where they have registered. However, individuals who can prove they cannot receive care in these provinces with a valid doctor’s referral may be directed to another suitable province where they can receive care. Expenses will be paid by the governorate where the foreigner under temporary protection is registered.(6)
Like the YUKK, the Regulation specifically regulates the access to health and social services for those with special needs. Accordingly, all kinds of assistance and support, particularly health services, psycho-social support and rehabilitation, will be provided to those with special needs with priority and free of charge to the extent possible; the provisions of the relevant legislation will be applied in all transactions related to children, taking into account the best interests of the child, and necessary measures will be taken for those who are assessed to be victims of violence and those who are assessed to be victims of human trafficking (Article 48).
Author; Hasan ASGAROV
Advisor; Atty. Lider TANRIKULU
(1) ÇALLI, Y., & ÖDEN, M. (2009). TÜRK ANAYASA HUKUKUNDA EĞİTİM HAKKI.
(2) Peek, M. (2010). Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. EU Immigration and Asylum Law. Commentary on EU Regulations and Directives, München, 871.
(3) Önder, N. (2019). Türkiye’de geçici koruma altındaki Suriyelilere yönelik sağlık politikalarının analizi. Göç Araştırmaları Dergisi, 5(1), 110-165.
(4) Harvey, C. (2004). The Right to Seek Asylum in the EU. European Human Rights Law Review, 10, 17-36.
(5) Mole, N., & Meredith, C. (2010). Asylum and the European convention on human rights (Vol. 9). Council of Europe.
(6) Akman, K. (2020). Türkiye’de Belediyeler ve Sığınmacılar. Astana Yayınları.