A deportation measure taken against a foreigner is known in practice as a “deportation decision”, and it can be countered by two routes: bringing an action for annulment before the administrative court within seven days of notification, or requesting an annotated visa. The most striking difference between them is that an action for annulment suspends the deportation proceedings.
Removal from the country is only one dimension of the process. The foreigner’s liberty may also be restricted; administrative detention in removal centres is the expression of this. A separate channel — an objection to the criminal judgeship of peace — is provided against this decision, which interferes with personal liberty.
Below we address, in turn, the nature of the deportation decision, the persons to whom it may be applied, how the process operates, the administrative detention regime, and the routes available for having the decision set aside.
The Concept of Deportation and Its Legal Nature
Deportation is an administrative act that compels the departure from the country of foreigners who have lost, or never acquired, the right to remain in Türkiye. The foreigner subject to the act may be sent to the State of which he or she is a national, to a country of transit, or to a third State.
The power to take this measure belongs to the governorships. A governorship may issue a deportation decision only where one of the grounds set out individually in the Law on Foreigners and International Protection No. 6458 is present.
Foreigners Who May Be Subject to a Deportation Decision
The categories of persons to whom deportation may be applied are governed by Art. 54 of the Law on Foreigners and International Protection No. 6458. The provision enumerates the following situations:
- Foreigners found to have submitted forged documents or made untrue declarations in connection with entry to Türkiye, visa or residence permit procedures
- Persons sentenced to imprisonment for an offence they have committed
- Those holding the position of leader, member or supporter within a criminal organisation or a terrorist organisation
- Those found to have links with structures characterised as terrorist organisations by international institutions and bodies
- Those assessed as posing a threat to public order, public security or public health
- Those who have supported themselves by unlawful means during their stay in Türkiye
- Those whose visa has been cancelled and those who have exceeded their visa or visa-exemption period by more than 10 days
- Foreigners whose residence permit has been cancelled
- Those who fail to leave the country within 10 days despite the rejection of their residence permit application
- Foreigners found to be employed without a work permit
- Those established to have used the work permit they hold contrary to the purpose for which it was granted
- Those found to have entered or left the country by means contrary to the legislation
- Those found to have entered Türkiye notwithstanding an entry ban imposed on them
- Those who, for various reasons, cannot benefit from international protection and have no right to continue residing in the country
The occurrence of one of these grounds may result in a restriction code being entered against the foreigner and the deportation process being initiated. The decision is notified to the foreigner or to his or her legal representative; with notification, the deportation measure takes effect in practice.
Cases in Which a Deportation Decision Is Prohibited
Art. 55 of the Law on Foreigners and International Protection No. 6458 precludes the issuing of a deportation decision in certain situations. Under that protective provision, no deportation measure may be taken in respect of the following persons:
- Foreigners in respect of whom there are serious indications that they would face the death penalty, torture, or inhuman or degrading punishment or treatment in the country to which they would be sent
- Persons for whom travel is considered inadvisable on account of age, pregnancy or serious health problems
- Foreigners undergoing treatment for a life-threatening illness where it is established that such treatment cannot be provided in the country to which they would be sent
- Victims of human trafficking who continue to benefit from the victim support process
- Persons who have suffered psychological, physical or sexual violence and whose treatment processes have not yet concluded
Separately from these, there are also foreigners who must leave the country but in respect of whom no separate deportation measure is pursued. This group comprises:
- Foreigners whose visa has been cancelled or has expired, and likewise those whose work permit has been cancelled or has expired, who present themselves at the border gates in order to depart within 10 days
- Those whose residence permit application has been rejected but who continue to be present in Türkiye on a valid visa
- Foreigners who fail to leave the country within 10 days after the expiry of their residence permit without a valid excuse, but who present themselves at the border gates of their own accord in order to depart
- Persons whose application to extend a residence permit has been rejected and who have not departed within the 10-day period, but who nonetheless come to the border gates of their own volition in order to leave the country
- Foreigners who have withdrawn their international protection application and have stated in writing that they waive their right of action and will return voluntarily to their country, together with those who retain the right to remain in Türkiye under other provisions of the Law
- Applicants for international protection falling within the inadmissible application and accelerated assessment procedures who have had recourse to the courts — as regards these persons, no measure is applied until the court’s final decision
Foreigners falling within the category of persons who may not be deported may be made subject to other obligations in place of removal from the country. In this framework, the foreigner may be required to reside at a designated address or to report to the administration at specified intervals.
Where it is not possible to send the foreigner to any country, a humanitarian residence permit may be issued.
How the Deportation Process Operates
The process begins with the notification to the foreigner of the reasoned decision taken by the governorship. Notification is followed by these stages:
- The foreigner is invited to leave the country
- Persons who do not depart of their own volition, or who must necessarily be placed under detention, are transferred to removal centres and made subject to administrative detention
- Health checks are completed
- Provided that no action for annulment has been brought, the necessary formalities are carried out and actual removal takes place
The Invitation to Leave the Country
An invitation to leave means granting the foreigner in respect of whom a decision has been taken a period in which to depart the country by his or her own means, before being removed by force. The period granted is set at no less than 15 and no more than 30 days. Foreigners in this position are issued with an exit permit document without any charge being levied.
Decisions both as to an invitation to leave and as to administrative detention must be taken within 48 hours at the latest. That period is calculated from the moment the foreigner is apprehended by law enforcement and conveyed to a removal centre, or from the moment the foreigner applies to the provincial directorate of migration management of his or her own accord.
The invitation-to-leave procedure is not operated in respect of every foreigner. For certain groups, the person is referred directly to a removal centre as soon as the decision is taken. The foreigners to be placed in administrative detention directly are:
- Those presenting a risk of absconding or disappearing
- Those who have breached the rules on lawful entry into or lawful exit from the country
- Persons using forged documents
- Those who attempt to obtain a residence permit by means of untrue documents, or who are found to have obtained a permit in this way
- Those posing a threat in terms of public health, public security or public order
Where the foreigner leaves the country after the expiry of the period granted, an entry ban is additionally imposed. By contrast, no entry ban arises in respect of foreigners who pay at the border gate the administrative fines stemming from a visa or residence permit breach.
Administrative Detention and Objection to That Decision
Those who are not invited to leave, and those who are so invited but do not depart within the period granted to them, are placed in administrative detention in removal centres. The transfer of foreigners apprehended by law enforcement to these centres is completed within 48 hours at the latest.
As a rule the period of detention may not exceed 6 months. However, where the deportation proceedings cannot be concluded because the foreigner declines to cooperate with the administrative authorities or fails to supply accurate information and documents concerning his or her country, the period may be extended by a further 6 months.
A foreigner held in a removal centre may object to this decision. Objections against an administrative detention decision are addressed to the criminal judgeship of peace.
A critical distinction arises here: objecting to administrative detention does not suspend the deportation proceedings. Indeed, even a foreigner whose detention decision has been lifted may lawfully be removed from the country. Suspension of the deportation proceedings is achieved only by bringing an action for annulment against the deportation decision itself, independently of the objection to detention.
Obligations That May Be Applied Instead of Administrative Detention
Governorships may prescribe a number of obligations to take the place of detention in respect of foreigners who could otherwise be detained. A foreigner made subject to one or more of these obligations need not additionally be placed in detention. The available alternatives include reporting to the provincial directorate of migration at specified intervals to sign, residing at a designated address, and a duty to notify. Alongside these, family-based return and return counselling mechanisms may be operated; the foreigner may be asked to undertake voluntary duties in services carried out in the public interest; and a decision may be taken requiring a security to be deposited or imposing electronic monitoring.
The period of application of these obligations may not exceed 24 months. Where an alternative obligation is imposed, the decision is likewise notified to the foreigner. A decision imposing electronic monitoring may be challenged by objection to the criminal judgeship of peace.
If the foreigner fails to comply with these obligations determined by the governorship, an administrative detention decision may be taken in respect of him or her.
Legal Remedies That Set Aside a Deportation Decision
A deportation decision may be deprived of effect in two ways: by bringing an action for annulment before the administrative court, or by requesting an annotated visa from the competent authority.
The Action for Annulment
A deportation decision may be set aside by bringing an action for annulment before the administrative court within a period of 7 days from the date on which it is notified to the person concerned. If an action is brought, the foreigner may not be removed from the country for as long as the proceedings continue.
The action is brought against the governorship that took the decision. Accordingly, the court with subject-matter and territorial jurisdiction is the administrative court for the place where that governorship is located. The period allowed for the application is 7 days from notification of the decision.
The legislation provides that the court is to give judgment in such actions within 15 days. In practice, however, the time taken to decide is seen to extend to between 4 and 6 months. Since the judgment given is final, appeal and appeal on points of law are not available. If the claim is rejected, the only remaining route for the foreigner is an individual application to the Constitutional Court with a request for an interim measure.
PLEASE NOTE: In practice, the administration conducting the deportation does not wait for the 7-day period for bringing an action to expire. There is therefore a possibility that the foreigner will be removed from the country before that period has run its course. Rather than waiting during the objection process, an action must accordingly be brought immediately upon notification of the decision.
A restriction code preventing entry to the country is also entered against a foreigner in respect of whom a deportation decision has been taken. For this reason, the removal of the restriction code must additionally be sought in the action to be brought; the outcome of that request varies according to the type of code.
In such an action, observing the time limits, conducting the procedural steps without omission and grounding the claim on solid reasons are decisive. Otherwise the challenge is dismissed and, there being no appeal or appeal on points of law, the foreigner is deported forthwith. It is therefore appropriate for the process to be conducted with a lawyer experienced in this field.
The Annotated Visa Route
An annotated visa allows a foreigner in respect of whom a deportation decision exists to enter Türkiye notwithstanding that decision. This type of visa is exceptional in nature and is issued on grounds of family reunification, education or health.
The application is made to the Turkish diplomatic mission in the country where the deported foreigner is located. After the competent authorities have examined the request, an annotated visa is issued for a period appropriate to the circumstances in which the foreigner finds himself or herself.
How Is a Deportation Check Carried Out?
Whether a deportation decision exists in respect of a person may be ascertained by applying to Turkish consulates, to the border gates, or to the competent administrative authorities through a lawyer. Such a check yields information such as the ground on which the decision rests and the stage the process has reached.
Conclusion
Deportation decisions are implemented so swiftly that they may be carried into effect even before the period for bringing an action has expired. When this is combined with the fact that the period for bringing an action is confined to a mere 7 days, the risk that foreigners will be removed from the country without having benefited from legal protection becomes plain. It is therefore important to act without delay, with expert support, as soon as the decision is notified.
Independent Legal Assessment
In deportation disputes the decisive factor is most often not the content of the arguments but the timing. An action for annulment not brought in time will produce no result, however strong the reasons on which it rests; given that the administration can act without waiting the seven days, taking action on the day of notification is the only safe approach.
The second critical point is that the two separately operating channels of application must not be confused. An objection to detention made to the criminal judgeship of peace targets only the restriction of liberty and does not suspend the removal; the decision itself falls within the remit of the administrative court.
In a specific file, the following headings should be prioritised:
- Documenting the date of notification and calculating the seven-day period scrupulously from the day of notification
- Establishing which subparagraph of Art. 54 of the Law on Foreigners and International Protection No. 6458 the decision is based on, and constructing the defence strategy accordingly
- Demonstrating, by means of health, victimisation and risk documents, whether one of the protective situations within Art. 55 of the Law on Foreigners and International Protection No. 6458 is present in the file
- Expressly seeking the removal of the restriction code in the statement of claim, alongside the annulment request
- Where administrative detention has been applied, making a separate and simultaneous objection to the criminal judgeship of peace
- Planning from the outset, against the possibility that the claim is rejected, for the option of an individual application to the Constitutional Court with a request for an interim measure
Independent Legal provides advisory services and conducts litigation in actions for the annulment of deportation decisions, objections to administrative detention, the removal of restriction codes and annotated visa applications.