Some of the foreign nationals in respect of whom a deportation decision has been taken are held in removal centres until the proceedings are completed. An objection against the administrative detention decision, which is the legal basis of that detention, is the principal remedy provided for enabling the person concerned to leave the centre.
If the objection is upheld, the foreign national may be released, or, where circumstances allow, obligations constituting an alternative to detention in the centre may suffice. Suspension of the deportation proceedings, by contrast, requires a separate mechanism; for that, an action for annulment must be brought against the deportation decision.
Below we examine in turn what administrative detention means, in respect of which foreign nationals it is applied, the periods of detention, the authority to which the objection is to be addressed and how it is made, and the obligations that arise where the decision is set aside.
The Nature of the Administrative Detention Decision
An administrative detention decision is an administrative act enabling a foreign national in respect of whom a deportation decision exists to be held in a removal centre for the periods laid down in the Law. A foreign national who does not leave the country within the period granted, or who falls within one of the situations listed in the Law, is transferred to such a centre so that the deportation proceedings may be concluded.
In Respect of Which Foreign Nationals Is the Decision Issued?
Not every foreign national whose deportation is ordered by the governorship is automatically taken into detention; one of the situations listed in the Law is required for that. The persons in respect of whom administrative detention is to be applied are as follows:
- Those who do not leave the country voluntarily within the period granted to them
- Those presenting a risk of absconding or disappearance
- Those using forged or untrue documents
- Those acting contrary to the rules on entry into and exit from the country
- Those constituting a threat to public order, public security or public health
If the foreign national who is the addressee of the deportation decision presents any of these characteristics, they are held in administrative detention until the moment of deportation. Those taken into detention are accommodated in centres designated by the administration. The administrative detention decision, like the deportation decision, is also taken by the governorship.
Where the Foreign National Is Held
Persons in respect of whom an administrative detention decision has been taken by the governorship are held in removal centres. These centres are facilities in which foreign nationals kept under control pending deportation are accommodated until their proceedings are completed.
The removal centres operating in our country are shown below; in accordance with the transfer ordered by the governorship that took the decision, the foreign national is sent to one of these facilities.
- Istanbul: Silivri (Women), Çatalca (Men), Tuzla
- Ankara: Akyurt
- İzmir: Çiğli
- Bursa: Osmangazi
- Kocaeli: İzmit
- Adana: Sarıçam
- Antalya: Döşemealtı
- Gaziantep: Oğuzeli
- Kayseri: Kocasinan
- Malatya: Yeşilyurt 1 and Yeşilyurt 2
- Erzurum: Aşkale 1 and Aşkale 2
- Şanlıurfa: Eyyübiye
- Van: Edremit
- Ağrı: Merkez
- Iğdır: Merkez
- Çankırı: Merkez
- Kütahya: Merkez
- Niğde: Bor
- Muğla: Ula
- Aydın: Efeler
- Balıkesir: Bandırma
- Çanakkale: Ayvacık
- Edirne: Sarayiçi
- Kırklareli: Pehlivanköy
A foreign national transferred to these facilities is deprived of liberty for the relevant period. While the person is in the centre, the competent authorities carry out the deportation proceedings; once those proceedings are concluded, the deportation is carried out.
The Maximum Period of Detention in the Centre
A foreign national may be held in administrative detention in a removal centre for at most 6 months. However, where the deportation proceedings cannot be concluded for various reasons, a further 6 months may be added to that period.
An extension can arise only where the failure to complete the proceedings is due to reasons attributable to the foreign national. Those reasons are the person’s refusal to cooperate with the competent authorities and their failure to submit the information and documents requested concerning their country.
How the Objection Is Made and the Competent Authority
An objection against an administrative detention decision is addressed to the magistrate’s court for criminal matters by the foreign national concerned or their lawyer, by way of a reasoned petition. The court with jurisdiction is the magistrate’s court for criminal matters of the place where the governorship that took the decision is located, or of the place where the foreign national is held in detention.
The making of the objection does not of itself bring about release; the foreign national continues to be held in detention until the court gives a decision in their favour. Where the request is rejected, the person concerned or their lawyer may apply again to the magistrate’s court for criminal matters, asserting that the conditions for detention have ceased to exist or have changed.
This route of objection must not be confused with the route pursued against the deportation decision. The only matter examined on the objection is whether the person’s detention is lawful; the deportation proceedings are unaffected by it and are not suspended. Foreign nationals who wish the deportation proceedings to be suspended must additionally bring an action before the administrative court for annulment of the deportation decision.
The route to be followed against a deportation decision is addressed later in this article.
At the objection stage, conducting the procedural steps without omission and founding the petition on legal argument are decisive. Otherwise the detention will continue and the person’s deprivation of liberty will persist. Moreover, if the deportation proceedings are also being carried out while the detention continues, it becomes possible for the foreign national to be deported within a short time. In order to avoid these outcomes, it will be helpful to consult a lawyer experienced in the field of immigration law.
Setting Aside the Deportation Decision
The setting aside of a deportation decision is achieved by an action for annulment to be brought before the administrative court. The bringing of that action suspends the deportation proceedings against the foreign national. Accordingly, if suspension of the proceedings is sought, an action for annulment must be brought against the deportation decision alongside the objection against the administrative detention decision.
The court with subject-matter and territorial jurisdiction in the action is the administrative court of the place where the deportation decision was taken. The action must be brought within 7 days of service of the decision; actions brought after the period has expired are dismissed. The judgment given in this action is final; the routes of appeal and appeal on points of law are closed.
The action for annulment, which suspends the deportation proceedings and seeks the setting aside of the decision, is examined in detail in the study entitled “how is a deportation decision (removal decision) set aside?”.
How Long Does It Take for the Objection to Be Decided?
In practice, objections against administrative detention decisions are concluded within 1 to 2 weeks. Although the legislation provides that the objection is to be decided within 5 days, the period actually achieved falls within that range.
Obligations Constituting an Alternative to Detention
When the magistrate’s court for criminal matters sets aside an administrative detention decision, it may impose certain obligations to take its place. These obligations include residing at a specified address, reporting at regular intervals, providing a guarantee and electronic monitoring. In addition, family-based return, return counselling and voluntary service in work for the public benefit may also be applied as alternatives.
Where one or more of those listed is imposed as an alternative to detention, the period of application of those obligations may not exceed 24 months. As for foreign nationals who fall within the scope of administrative detention but have not been taken into detention, the application of one or more of these alternatives is mandatory.
A foreign national in respect of whom an alternative obligation has been imposed may also object to that decision by applying to the magistrate’s court for criminal matters from the time the decision is served on them. The court decides such an objection within 5 days.
A foreign national in detention or their lawyer may make a fresh application to the magistrate for criminal matters on the ground that the conditions for detention have ceased to exist or have changed.
General Assessment
Administrative detention is a measure that takes effect swiftly where no objection is made and that may lead to a foreign national remaining in a removal centre for a long period. At the end of the process, the deportation of the person in detention comes into question. In order to avoid these outcomes, it is of great importance that the decision be challenged with the support of a lawyer specialised in the field.
Independent Legal Assessment
The most frequent misconception in files of this kind is the expectation that a single application will halt both the detention and the deportation proceedings. Yet the two decisions are independent of one another: the objection made to the magistrate’s court for criminal matters concerns only the deprivation of liberty, whereas the action for annulment before the administrative court concerns the deportation act itself. A failure to pursue the two at the same time may result in the person being deported even if a favourable outcome is obtained on the objection.
In a particular file the following points must be given priority:
- Establishing the date of service of the deportation decision and diarising the 7-day period for bringing an action as from the first day
- Choosing correctly whether the objection is to be addressed to the court of the place where the governorship that took the decision is located or to that of the place of detention
- Rebutting concretely the ground on which the detention is based — risk of absconding, document forgery, threat to public order — by comparing it with the contents of the file
- Where the 6-month period is extended, disputing whether the delay is genuinely attributable to the foreign national
- Advancing the alternative obligations together with the request for the detention to be set aside, with concrete reasons
- Keeping in view the possibility of a fresh application after a decision of rejection, relying on a change in circumstances
Independent Legal provides advisory services and conducts applications in disputes arising from immigration law, from objections against administrative detention decisions to the annulment of deportation decisions.