The procedures and principles governing the entry of foreigners into and their exit from the country, their stay in Türkiye, and the scope and manner of application of the protection to be afforded to those requesting protection are laid down by the Law on Foreigners and International Protection No. 6458. The same Law also contains the provisions relating to deportation and administrative detention decisions to be applied in respect of foreigners. Pursuant to these provisions, a deportation decision may be issued by the governorship in respect of the persons enumerated in Article 56 of the Law. In respect of those against whom a deportation decision has been issued and who present a risk of absconding or disappearing, who constitute a threat to public security or public health, and the other persons specified in the Law, an administrative detention decision may additionally be taken. For those in respect of whom administrative detention is not ordered, alternative obligations replacing that measure may be prescribed. If the administrative detention decision is considered to be unlawful, it is possible to object to the decision by applying to the criminal judge of peace.
That States control the entry into and exit from the country of persons who are not their nationals, and decide independently on a foreigner’s residence, is a natural manifestation of sovereign power. As an extension of that same power, the State is afforded the power of deportation as regards the removal from the country of foreigners regarded as objectionable in terms of general security and public order. Alongside this power, where the situations enumerated in the Law exist, it is also possible to hold the foreigner in administrative detention. Conversely, a person who is deported unlawfully or who is faced with an administrative detention decision may have recourse to the remedies available against these acts.
Details concerning the deportation decision itself and the objection procedure to be pursued against that decision are examined in a separate note entitled Objection to a Deportation Decision.
Administrative Detention Decision
Article 54 of the Law on Foreigners and International Protection No. 6458 identifies the persons in respect of whom a deportation decision may be taken. When such persons are apprehended by law enforcement, they are reported without delay to the governorship so that a decision may be taken in their regard. In respect of some of the foreigners against whom a deportation decision has been issued, the measure of administrative detention may additionally be ordered. The measure in question arises for the following persons:
- those who present a risk of absconding or disappearing
- those who breach the rules on lawful entry or lawful exit
- those who use false or unfounded documents
- those who constitute a threat in terms of public security or public health
- those who, without an acceptable excuse, fail to leave Türkiye within the period granted to them to depart from the country
In respect of these persons, the governorship either takes an administrative detention decision or imposes alternative obligations that take the place of administrative detention.
Duration of Administrative Detention and Transfer to a Removal Centre
Persons in respect of whom an administrative detention decision has been taken are transferred to removal centres within forty-eight hours of being apprehended by the law enforcement authorities.
The upper limit of the period to be spent in these centres is six months. However, where the deportation proceedings cannot be concluded because the foreigner refuses to cooperate or fails to submit accurate information or documents concerning his country, this period may be extended by a further six months.
Whether the continuation of the detention is necessary is reviewed regularly each month by the governorship. Where deemed necessary, the expiry of the thirty-day period is not awaited. In respect of foreigners for whom it is concluded that there is no necessity for the continuation of detention, the measure is terminated immediately. It is also possible for alternative obligations, such as residing at a specified address or reporting in the manner and at the intervals determined, to be imposed on these persons.
The administrative detention decision, the act relating to the extension of the period, and the results of the assessments carried out each month are notified, together with their reasons, to the foreigner, to his legal representative or to his lawyer. Where the person is not represented by a lawyer, he or his legal representative is informed of the outcome of the decision and of the procedures and time limits for objection.
Services Provided in Removal Centres
Foreigners placed in administrative detention following a deportation decision are accommodated in removal centres. It is prescribed that the following facilities are to be provided in these centres:
- Emergency and basic health services are provided free of charge for foreigners who are unable to meet the cost.
- The foreigner is afforded the possibility of contacting and meeting his relatives, a notary, his legal representative and his lawyer, as well as the possibility of making use of telephone services.
- The foreigner is enabled to meet his visitors, the consular official of the country of which he is a national, and an officer of the United Nations High Commissioner for Refugees.
- The best interests of children are observed and families are accommodated in separate sections.
- The necessary measures are taken by the Ministry of National Education so that children may benefit from education and training opportunities.
Alternative Obligations to Administrative Detention
In respect of foreigners against whom a deportation and administrative detention decision may be issued, as well as persons whose detention has been terminated, certain obligations may be prescribed to take the place of detention.
Under Law No. 6458, these alternative obligations are grouped under seven headings: residing at a specified address, reporting, family-based return, return counselling, taking up duties on a voluntary basis in services for the public benefit, providing security, and electronic monitoring.
Where one or more of these obligations has been imposed on the foreigner, the period during which the measure is to be applied may not exceed twenty-four months.
An important detail must be pointed out here. A person against whom a deportation decision has been issued and who may be placed in administrative detention pursuant to Article 57 of the Law may not be subjected to that measure. In such a case, at least one of the alternative obligations must necessarily be applied in respect of the person concerned.
The fact that he has been made subject to alternative obligations is notified, together with the reasons, to the foreigner, to his legal representative or to his lawyer. Where the foreigner is not represented by a lawyer, he or his legal representative is informed of the outcome of the decision and of the avenues and time limits for objection.
Objection to an Alternative Measure Decision
A foreigner placed under an electronic monitoring obligation, his legal representative or his lawyer may apply to the criminal judge of peace against this decision and request that the measure be lifted. However, this application does not suspend the administrative obligation to which the person is subject. The criminal judge of peace completes his examination within five days and the decision he gives is final.
Where foreigners who have been made subject to alternative obligations instead of administrative detention fail to comply with those obligations, the measure of administrative detention may be applied in their regard.
The Law does not settle whether recourse to the courts is available as regards measures other than electronic monitoring. Although the legislature has left this point unregulated, we are of the view that the avenue of judicial review is likewise open in respect of the other measures.
Objection to the Administrative Detention Decision
A person against whom a deportation decision has been taken must first apply to the administrative court and object to that act. Where both a deportation decision and an administrative detention decision have been issued in respect of the same person, the objection directed against the administrative detention decision must be addressed to the criminal judgeship of peace. As will be seen, the authorities prescribed for the two decisions are separate from one another. For this reason, applying only to the administrative court or only to the criminal judgeship of peace may give rise to a loss of rights. Persons who, alongside a deportation decision, have also been made subject to administrative detention must apply to both authorities.
An application made to the criminal judgeship of peace does not suspend the application of the detention. Where the objection to administrative detention is submitted to the administration, the petition is transmitted without delay to the competent criminal judge of peace. The judge concludes his examination within five days and his decision is final. The person in detention, his legal representative or his lawyer may apply afresh to the criminal judge of peace for the measure to be lifted, on the ground that the conditions of detention have ceased to exist or have changed.
Frequently Asked Questions
Is representation by a lawyer mandatory in the action before the administrative court?
In Turkish law, parties may as a rule defend and represent themselves in person; save for limited exceptions, there is no obligation of representation by counsel. Nor is representation by an administrative law lawyer required before the administrative courts. That said, the multi-layered structure of administrative law legislation and the short and strict nature of the time limits in the Administrative Procedure Act No. 2577 may, where the process is conducted by persons who are not lawyers, give rise to errors of procedure and of substance that are difficult to remedy. For this reason, it is recommended that support be obtained from lawyers practising in the field of administrative law before any step is taken.
What is a removal centre?
The places in which those foreigners liable to deportation who have additionally been made subject to an administrative detention decision are accommodated until they are sent to their own country or to a safe third country are called removal centres.
How soon is a foreigner taken to a removal centre?
Foreigners in respect of whom an administrative detention decision has been taken are transferred to removal centres within 48 hours by the law enforcement units that apprehended them.
How is it reviewed whether administrative detention is to continue?
Whether there is a necessity for the continuation of the detention is assessed each month by the governorship. If it is concluded that the necessity no longer exists, the decision is lifted. If no decision to that effect is taken by the governorship, the detention continues until the foreigner is deported, for a maximum of 6 months.
What is the maximum period for which one may stay in a removal centre?
Administrative detention may as a rule not exceed 6 months; accordingly, a foreigner may be held in these centres for a maximum of 6 months. However, where the deportation proceedings cannot be completed because the foreigner does not cooperate or does not submit accurate information or documents concerning his country, the period may be extended by a maximum of a further 6 (six) months.
How is the lifting of an administrative detention decision requested?
The foreigner placed in detention may apply to the criminal judgeship of peace for the decision to be lifted, in person, through his legal representative or through his lawyer. This application does not suspend the detention. The criminal judge of peace concludes his examination within 5 days.
Does every deportation decision require transfer to a removal centre?
No. Only those foreigners in respect of whom an administrative detention decision has also been issued are sent to these centres. Where only a deportation decision has been issued in respect of the person and no administrative detention decision has been taken, transfer to a removal centre does not arise.
Independent Legal Assessment
Although administrative detention is a measure serving the conduct of the deportation process, in its consequences it directly restricts personal liberty. For this reason, the duration of the measure, its monthly review and the possibility of substituting alternative obligations for it are as important in practice as the arguments going to the substance. When the proportionality review is carried out, it must also be asked whether a lighter measure, such as residence at a specified address or reporting, would suffice in place of detention.
The error most frequently encountered in practice is the making of a single application in respect of two separate acts. The deportation decision is subject to the review of the administrative jurisdiction, while the administrative detention decision is subject to the review of the criminal judgeship of peace; an application against one does not of itself cover the other.
The matters to which priority should be given in a specific file are the following:
- identifying the deportation and detention decisions separately and applying to the correct authority for each of them
- calendaring the start date of the detention and the six-month maximum period, and reviewing the reasoning of any extension decisions
- investigating whether the assessment the governorship is required to carry out each month has in fact been carried out
- demonstrating with concrete evidence that alternative obligations are workable, and requesting that the detention be brought to an end
- monitoring the possibility of a fresh application to the criminal judgeship of peace on the basis of a change in the conditions of detention
- reviewing whether rights such as access to a lawyer, health services and consular interviews are in fact being made available in the removal centre
Independent Legal provides advisory services and conducts litigation in the field of immigration law and administrative proceedings, in objections to be made to the criminal judgeship of peace against administrative detention decisions and in the conduct of actions for annulment directed against deportation measures.