The entry of foreigners into the country and their departure from it, their stay in Türkiye, and the content and manner of application of the protection to be afforded to persons within the scope of international protection, are governed by the Law on Foreigners and International Protection No. 6458. The same text also regulates the deportation decisions to be issued in respect of foreigners. A deportation decision may be taken by the governorship in respect of the persons enumerated in Article 56 of the Law.
By their legal nature, these decisions are administrative acts. They may therefore be made the subject both of an objection before the relevant authorities and of an action for annulment before the administrative courts. A person in respect of whom such a decision has been issued may apply to the court seeking the setting aside of the act. To that end, an application must be made within seven days of the date on which the decision was notified, to the administrative court in the province where the governorship that gave the decision is located.
As a natural extension of the sovereign powers of states, the State is vested with a power of deportation enabling it to remove from the country foreigners considered undesirable in terms of general security and public order. Below we examine the scope and limits of that power and the legal remedies to be pursued against the decision.
The Concept of Deportation
Before addressing how the decision is given and by what means it may be set aside, it will be useful to clarify the definition of the concept so that it is not confused with similar sanctions. Deportation denotes the removal of a foreign national from Türkiye where certain grounds are present, and the prohibition of their entry into the country thereafter.
In practice, this decision arises in situations such as where the person engages in conduct contrary to the law or to morality, poses a threat to national security or public health, works without a work permit, or continues to live in the country without a residence permit or a student residence permit.
Persons in Respect of Whom a Deportation Decision May Be Taken
Article 54 of Law No. 6458 enumerates the persons who may be made the subject of a deportation decision. Accordingly, a deportation decision may be issued in respect of those in the following situations:
- Those in respect of whom it has been concluded, within the framework of Article 59 of the Turkish Penal Code No. 5237, that they should be deported
- Those holding the position of leader, member or supporter of a terrorist organisation, and those acting as leader, member or supporter of a criminal organisation established for profit
- Those assessed to have links with structures defined as terrorist organisations by international bodies and organisations
- Those who use false documents or untrue information in entry, visa and residence permit procedures
- Those who, during their stay in Türkiye, obtain their livelihood by means not regarded as lawful
- Those who pose a threat in terms of public order, public security or public health
- Those whose visa has been cancelled and those who exceed the visa or visa-exemption period by more than ten days
- Those whose residence permit has been cancelled
- Those who, their residence permit having expired, exceed that period by more than ten days without showing an acceptable excuse
- Those who, their application for extension of a residence permit having been refused, do not leave the country within ten days
- Those found to be working without a work permit
- Those who breach, or attempt to breach, the rules on lawful entry into or lawful exit from Türkiye
- Those found to have come to the country notwithstanding an entry ban to Türkiye
- Persons whose application for international protection has been refused, who are excluded from international protection, whose application is deemed inadmissible, who withdraw their application, whose application is deemed withdrawn, or whose international protection status has ceased or been cancelled, and who, following the final decision given in their regard, have no right to remain in Türkiye under the other provisions of this Law
Persons in Respect of Whom a Deportation Decision May Not Be Taken
Article 55 of the Law identifies the persons in respect of whom a deportation decision may not be given, even where they fall within the enumeration set out above. This protection arises in the following situations:
- Where there are serious indications that the person will face the death penalty, torture, or inhuman or degrading punishment or treatment in the country to which they are to be sent
- Where travel is considered risky by reason of their age, pregnancy or serious health problems
- Where, their treatment for a life-threatening illness being ongoing, there is no possibility of continuing that treatment in the country to which they are to be sent
- Where they are a victim of human trafficking and are benefiting from the victim support process
- Where they have been subjected to psychological, physical or sexual violence, until the treatment process is completed
These persons may be required to reside at a designated address and to report in the manner and at the intervals requested.
Taking the Deportation Decision
Persons falling within the scope of Article 54 of the Law on Foreigners and International Protection may be deported for the purpose of being sent to their country of origin, to the country through which they will transit, or to a third country. The authority competent to issue the decision is the governorship. The governorship may exercise this power upon the instruction of the Directorate General of Migration Management, or may act of its own motion.
The decision, together with its reasons, may be notified to the foreigner in person, or to their legal representative or lawyer. Where the foreigner is not represented by a lawyer, they or their legal representative are informed of the outcome of the decision and of the procedures and time limits for objection.
Invitation to Leave Türkiye
Where a deportation decision is given, that fact is recorded in the foreigner’s own passport. That record is one giving rise to serious consequences which may confront the person throughout their life in the travel they undertake and in various judicial enquiries. For that reason, a foreigner who bears one or more of the grounds for deportation may, in order to prevent the record from being entered in their passport, pursue the setting aside of the decision, or may equally make use of the invitation-to-leave procedure, which offers a shorter solution. It must not be forgotten, however, that this route affords the person no possibility of remaining in Türkiye.
The procedure operates as follows: where the necessary conditions are present, the foreigner applies in person to the law enforcement units, requesting to be invited to leave rather than deported, and may leave the country without being sent to a removal centre. This course produces markedly more favourable results for the foreigner than deportation. The person is granted a period of not less than fifteen and not more than thirty days in which to leave the country. Subject to the discretion of the administration, a foreigner in respect of whom a deportation decision has been given upon a finding of a visa breach may also be invited to leave.
That said, it is not obligatory to apply this procedure to every foreigner who wishes to leave the country of their own volition. The administration reaches a conclusion on the invitation to leave by weighing the person’s particular circumstances, their history and, in short, their subjective characteristics. In other words, the administration enjoys a discretionary power as to whether this procedure is to be applied.
Administrative Detention Decision for the Purpose of Deportation
A person in respect of whom a deportation decision has been taken is granted a period of up to thirty days, and in any event not less than fifteen days, in which to leave Türkiye. This facility is not, however, afforded to everyone. No such period is prescribed in respect of the following persons:
- Those in respect of whom there is a risk of absconding or disappearance
- Those who breach the rules on lawful entry or exit
- Those who use false documents
- Those who attempt to obtain a residence permit by means of unfounded documents, or who are found to have obtained a permit by that means
- Those who pose a threat in terms of public security or public health
An administrative detention decision is taken in respect of those to whom this period is not granted, as well as those who, having been granted the period, do not leave the country within that time. The details of the matter are addressed in our study entitled Objection to the Administrative Detention Decision Concerning Persons to Be Deported.
Article 56 of the Law further provides that an Exit Permit Document is to be issued to persons granted a period in which to leave the country. This document is not subject to any fee. By contrast, obligations relating to visa and residence fees and to the penalties connected with them are not extinguished.
Objection to the Deportation Decision
A person in respect of whom a deportation decision has been given must apply to the administrative court within seven days of notification of the decision. The person making the application also notifies that fact to the authority that issued the decision. The administrative court determines the application within fifteen days at the latest, and the decision given is final. The foreigner may not be deported while the period for bringing an action is still running or, where recourse has been had to the courts, until the proceedings have been concluded.
Court with Subject-Matter and Territorial Jurisdiction
Since a deportation decision is in the nature of an administrative act, subject-matter jurisdiction in actions brought seeking its annulment lies with the administrative courts. The court with territorial jurisdiction is, under Article 32 of the Administrative Procedure Act No. 2577, the administrative court in the province where the governorship that gave the decision is located.
Frequently Asked Questions
Is representation by a lawyer mandatory in proceedings before the administrative court?
Under Turkish law the parties may, as a rule, defend and represent themselves in person; save for limited exceptions, there is no requirement 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 prescribed 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. It is therefore recommended that support be obtained from lawyers practising in the field of administrative law before any step is taken.
How does the process work after a deportation decision?
Once the decision has been given, an application must be made to the administrative court within 7 days. The court delivers its decision within 15 days. Throughout this process the person in respect of whom the deportation decision has been given may not be deported.
Is exceeding the residence permit period a ground for deportation?
A deportation decision is given in respect of those who, notwithstanding the expiry of the permit period, remain in Türkiye for more than 10 days beyond the end of that period without showing an acceptable excuse such as medical treatment. Persons whose residence permit is cancelled outright, although its period has not yet expired, may face a deportation decision without the benefit of a 10-day period.
What decision is given in respect of those who enter the country unlawfully?
A deportation decision is issued in respect of persons who do not enter Türkiye by lawful means or who attempt to enter unlawfully.
What are the consequences of exceeding the visa period?
Persons who exceed the visa period by more than ten days will, if they do not leave the country after that period, be made the subject of a deportation decision.
How long is the period granted for an invitation to leave?
Under the first paragraph of Article 56 of the Law on Foreigners and International Protection No. 6458, persons in respect of whom a deportation decision has been taken are granted, provided this is stated in the decision, a period of up to thirty days and in any event not less than fifteen days in which to leave Türkiye. This period is not, however, granted to those who present a risk of absconding or disappearance, those who breach the rules on lawful entry or exit, those who use false documents, those who attempt to obtain a residence permit by means of unfounded documents or who are found to have obtained one by that means, or those who pose a threat in terms of public order, public security or public health.
Can persons with a serious illness never be deported?
Under Article 55 of the Law, persons whose treatment for a life-threatening illness is ongoing and for whom no possibility of treatment exists in the country to which they are to be sent may not be deported. By contrast, where it is understood that the decision will not give rise to a fatal outcome and that the person will be able to continue their treatment in the country to which they are going, a deportation decision may be taken in respect of that person.
Independent Legal Assessment
The decisive factor in deportation disputes is, more often than not, time rather than the debate on the merits. The seven-day period for application is extremely short compared with the general sixty-day period in administrative proceedings, and its starting point may vary according to whether notification has been made to the foreigner, to their legal representative or to their lawyer. Documenting the date of notification is therefore the first task in the file.
Second, it must not be overlooked that the deportation decision and the administrative detention decision are separate acts, taken before different authorities. Applying against only one of them may lead to the loss of rights in respect of the other. The existence of the grounds of protection enumerated in Article 55 of the Law is a line of defence directly affecting the merits of the application, and must be evidenced.
In a concrete file, the following matters should be assessed as a matter of priority:
- Establishing the date on which the decision was notified and recording the seven-day period
- Notifying the application to the authority that gave the decision, in addition to lodging it with the administrative court
- Demonstrating, by means of medical reports and similar documents, whether one of the grounds of protection under Article 55 of the Law is present
- Where an administrative detention decision has also been taken, applying to the criminal judgeship of peace as well
- Assessing the invitation-to-leave option comparatively, having regard to the consequences of the record to be entered in the passport
- Bearing in mind that territorial jurisdiction lies with the administrative court of the place where the governorship that issued the decision is located
Independent Legal provides advisory services and conducts litigation in the field of immigration law and administrative proceedings, throughout the entirety of the objection and annulment processes to be pursued against deportation decisions.