Immigration Detention in Turkey: How To Appeal?

Turkey’s geographical location and regional political dynamics have placed the country at the center of irregular migration movements. This situation has made it mandatory to regulate the processes regarding the entry, stay, and exit of foreigners in accordance with modern legal norms. The Law on Foreigners and International Protection (LFIP) No. 6458 entered into force in 2013, gathering the scattered legislation in this field under a single roof and creating a structure compatible with the European Union acquis. “Administrative detention,” one of the most critical mechanisms of this law, is an administrative measure that does not have a judicial nature but directly affects liberty, where a foreigner’s freedom is restricted to prevent them from absconding or disappearing during the deportation process. This report examines in depth the legal rights of a foreigner taken into administrative detention, the procedures they are subject to, and the legal protection shields in this process.

What is the Concept and Legal Nature of Administrative Detention?

Administrative detention is not an arrest or imprisonment in the sense of criminal law; its purpose is to guarantee the execution of the deportation decision. Since administrative detention in the Turkish legal system is accepted as an intervention in the right to personal liberty and security (Constitution Art. 19), it can only be applied in limited cases clearly stated in the law and for specific periods. Although the purpose of “effective deportation” lies at the basis of this measure, it is essential for the administration to comply with the principles of “proportionality” and “necessity” while using this authority.

How is the Administrative Detention Decision Taken and Who are the Authorized Authorities?

Foreigners for whom a deportation decision has been taken may be placed under administrative detention as a result of the evaluation made by the governorship. Law enforcement units (police or gendarmerie) are obliged to report to the governorship within 48 hours when they apprehend a foreigner. The governorship evaluates the situation of the foreigner and decides whether deportation and an accompanying administrative detention decision are required. The administration has a 48-hour evaluation period at the decision stage, and during this period, the foreigner may be temporarily held.

What are the Legal Grounds for Taking an Administrative Detention Decision?

Article 57 of the LFIP stipulates that not every deported foreigner can be taken into detention, and this measure can only be applied in the presence of certain risks. The administration must support at least one of these grounds with concrete information and documents in its decision.

Risk of Absconding and Disappearing

The foreigner’s lack of a fixed address in Turkey, use of a false identity or passport, violation of a previous deportation decision taken against them, or failure to leave Turkey within the period granted (invitation to leave) is evaluated as a “risk of absconding and disappearing.” The presence of this risk is the most frequently applied ground for administrative detention.

Violation of Entry and Exit Rules

Foreigners who enter Turkey through illegal means (by violating the border) or who are caught while attempting to exit through illegal means even if they entered through legal means can be placed under administrative detention. This article is part of the strategy for protecting border security and combating irregular migration.

Use of False or Unfounded Documents

This measure is applied to those who make false statements in visa, visa exemption, or residence permit applications or who try to stay in Turkey with documents found to be forged. The administration should add a technical report or official correspondence regarding the forgery of the document to the file.

Threat to Public Order and Public Security

The most comprehensive ground and the one most subject to judicial review is that the foreigner poses a threat to public order, public security, or public health. Connection with a terrorist organization (such as the G-87 code), serious criminal records, or having contagious diseases that threaten public health are evaluated in this context. However, the decisions of the Council of State and the Constitutional Court emphasize that the concept of “public order” cannot be used as an abstract claim, and it must be explained with which concrete action the foreigner disturbed this order.

What are the Periods of Administrative Detention and How are They Extended?

Administrative detention is not an indefinite detention; the law has clearly determined the maximum period for which an individual’s freedom can be restricted by administrative authorities.

The normal administrative detention period in removal centers cannot exceed six months. However, this period can be extended for a maximum of six months more if deportation procedures cannot be completed because the foreigner “does not cooperate” or does not provide correct information and documents regarding their country. Therefore, the total maximum period for which a foreigner can be kept under administrative detention in Turkey is 12 months.

The non-cooperation criterion generally covers the following situations:

• The foreigner hiding or not declaring their real nationality.

• Refusing to participate in consular interviews to obtain a travel document.

• Detection of intentional destruction of their passport or entry documents.

Monthly Regular Evaluations

Whether there is a “necessity” in the continuation of administrative detention is reviewed regularly every month by the governorship (Provincial Directorate of Migration Management). If the administration decides that the foreigner no longer carries a risk of absconding or that their deportation has become impossible (for example, intensification of the war in the country of origin), it is obliged to terminate the detention immediately without waiting for the 30-day period. In case of termination of detention, alternative obligations are imposed on the foreigner pursuant to Article 57/A.

What are the Living and Housing Standards in Removal Centers (GGM)?

Foreigners for whom an administrative detention decision has been taken are held in Removal Centers affiliated with the Presidency of Migration Management. These centers have a status different from prisons, and it is the responsibility of the administration to protect the basic human rights of the persons accommodated here.

Social and Economic Rights

Services provided to foreigners accommodated in removal centers are regulated by Article 59 of the LFIP and the relevant regulations.

• Health Assistance: Emergency and basic health services, the cost of which cannot be met by the foreigner, are provided free of charge. Medication procurement and hospital referral processes are managed for those with chronic ailments.

• Access to Communication and Lawyer: The foreigner is provided with the opportunity to access their relatives, lawyer, notary, and consular official. Access to telephone services (via payphones with cards) in GGMs is a right.

• Status of Children and Families: Considering the best interests of children, separate and appropriate housing areas are allocated for families and unaccompanied children. Cooperation is made with the Ministry of National Education to ensure that children benefit from the right to education and training.

• Worship and Social Activities: The necessary environment is provided for persons to worship in accordance with their beliefs. In addition, hours for going out into the open air and ventilation are regulated.

What are the Alternative Obligations to Administrative Detention (Article 57/A)?

With the legal change made in 2019, less restrictive methods (alternative obligations) that can be applied instead of “administrative detention” or after the termination of detention have been included in the legal system. This system aims to release the individual into society with certain control mechanisms instead of completely restricting their liberty.

Types of Measures Applied

Alternative obligations to administrative detention are determined by the governorship according to the risk status and personal conditions of the foreigner.

• Residing at a Specific Address: The obligation of the foreigner to be present at the address they declared.

• Reporting: The foreigner going to the Provincial Directorate of Migration Management or the designated police station at regular intervals (usually once or twice a week) and signing.

• Family-Based Return: Giving the foreigner to the supervision of their family members in Turkey and following the return process.

• Guarantee: The foreigner blocking a certain amount in the bank or presenting it to the administration to cover the deportation costs.

• Electronic Monitoring: Tracking the foreigner through the use of an electronic bracelet or location sharing (GPS) via a mobile application.

• Return Counseling: Regular meetings of the foreigner with experts to encourage their voluntary return.

Duration and Appeal Procedure

The period of being subjected to alternative obligations cannot exceed 24 months. Against the electronic monitoring (bracelet/mobile tracking) obligation, the foreigner or their lawyer can apply to the Criminal Judgeship of Peace and request the removal of this measure. If the foreigner violates the reporting or residence obligation imposed on them without an acceptable excuse, the administration may cancel the alternative measure and take the person into administrative detention again.

Which Legal Recourses are Available Against the Administrative Detention Decision?

The administrative detention decision is, by its nature, open to judicial review. The main mechanism the foreigner can apply to in order to ensure their release is the Criminal Judgeship of Peace.

Appeal Process to the Criminal Judgeship of Peace

The foreigner, their legal representative, or their lawyer can apply to the Criminal Judgeship of Peace against the administrative detention decision.

• Right of Application and Period: An objection can be made at any time starting from the notification of the decision. The objection does not automatically stop the administrative detention, but the way to be released by court decision is opened.

• Review and Decision Period: The Criminal Judge is obliged to conclude the application within 5 days. The court examines the administration’s file and evaluates whether the foreigner has a risk of absconding and whether the grounds shown by the administration are concrete.

• Finality and Re-application: The decision given by the Criminal Judge is final. However, in case of a change in circumstances (for example, deterioration in health status, finding the passport, etc.), the foreigner can always apply to the Criminal Judgeship of Peace again.

• Legal Aid Request: Foreigners who do not have the financial power to hire a lawyer can apply to the relevant bar association and request that a free lawyer be assigned to them. In case this request is conveyed to the administration in removal centers, the administration is obliged to inform the bar association.

Relationship with the Cancellation Case Against the Deportation Decision

Since administrative detention is a result of the deportation decision, the lawsuit to be filed against the main transaction (deportation decision) may also affect the detention process.

• A cancellation case can be filed in the Administrative Court within 7 days from notification against the deportation decision.

• Filing a lawsuit, as a rule, stops the deportation of the foreigner until the end of the trial (automatic stay of execution).

• However, the stopping of the deportation process does not mean that the administrative detention will also be automatically lifted; a separate decision must be obtained from the Criminal Judgeship of Peace for release.

What are the Scenarios That May Be Encountered During the Administrative Detention Process?

Foreigners may encounter various scenarios during the administrative detention process. Knowing these scenarios is critical for determining the legal strategy.

Making an International Protection Application

A foreigner held in a removal center can apply for “international protection” (asylum) by claiming that their life would be in danger if they returned to their country.

• Process: The application is immediately conveyed to the Provincial Directorate of Migration Management. During the evaluation of the application, the deportation of the foreigner stops.

• Accelerated Evaluation: Applications made in GGMs are generally included in the “accelerated evaluation.” If the application is seen as “malicious” or “made solely to prevent deportation,” it can be rejected.

Voluntary Return Request

The foreigner may want to return to their country of their own will while under administrative detention.

• Support: The Presidency of Migration Management may provide in-kind or financial support to encourage voluntary return.

• Transactions: The foreigner signs the voluntary return form, and the person is referred directly to the border gate by leaving the GGM through accelerated consular procedures.

Release for Health Reasons

In case the foreigner has a disease severe enough not to be able to stay in GGM conditions or is in a sensitive situation such as pregnancy:

• An application can be made to the Criminal Judgeship of Peace with a medical board report to be obtained from a full-fledged state hospital, requesting the removal of detention.

• The administration usually releases these persons with the obligation to “reside at a specific address.”

What do High Court Decisions and Precedent Jurisprudence Cover?

Administrative detention practices in Turkey are subject to strict review by the Constitutional Court (AYM) and the European Court of Human Rights (ECHR). These decisions are the most important safeguards preventing the administration from acting arbitrarily.

“Personal Liberty” Decisions of the Constitutional Court

The AYM evaluates applications regarding administrative detention within the scope of Article 19 of the Constitution.

• Obligation to Provide Grounds (K.A. [GK], B. No: 2014/13044): In this decision, the AYM accepted the failure to notify the foreigner of the reasons for the administrative detention decision in a language they can understand and with concrete grounds as a violation of rights.

• Effective Remedy (Firas Aslan and Hebat Aslan, B. No: 2012/1158): Preventing persons under administrative detention from accessing judicial review or the courts rejecting objections with “formulaic grounds” is a violation of the right to an effective remedy.

• Right to Compensation: In cases of administrative detention that is unlawful or continued even though its period has expired, foreigners have the right to file a lawsuit for compensation for the non-pecuniary damage they suffered.

Council of State and Administrative Jurisdiction Perspective

Administrative courts review the administration’s discretionary power, especially in cases for the cancellation of deportation decisions.

• Principle of Proportionality: The Council of State can find it “disproportionate” to deport or take into detention a foreigner who has been living in Turkey for 10 years and has a family due to a simple visa violation.

• Definition of Public Order: The judiciary stipulates that the ground for “disturbing public order” must be supported by a concrete criminal record or intelligence report. Decisions taken solely on “suspicion” are cancelled.

Critical Information Notes and Frequently Encountered Problems for Foreigners

The most important issues that a foreigner under administrative detention should know are summarized in the table below.

Problems in Practice and Solution Suggestions

The biggest obstacle foreigners encounter in practice is the language barrier. Many foreigners go through the process without understanding whether the document notified to them is “administrative detention” or “deportation.”

• Solution: A sworn translator should be requested during notification, and a copy of the documents must be taken.

Another problem is the physical capacity of GGMs. Delays may occur in referral procedures during some busy periods.

• Solution: When the 48-hour transfer period is exceeded, an application should be made to the Criminal Judgeship of Peace with the claim of “unjust detention.”

Conclusion

Administrative detention in Turkey is a result of the state’s effort to keep irregular migration under control within the framework of its right of sovereignty. However, the rights granted to foreigners in this process are secured by international conventions to which Turkey is a party and constitutional principles. The most critical step for a foreigner taken into administrative detention is to object to the Criminal Judgeship of Peace within the first 5 days from notification of the decision and to file a lawsuit in the administrative court against the deportation decision in parallel. In case the maximum period of 12 months is exceeded, since a violation of personal liberty is in question, immediate release and compensation processes should be operated. The Turkish legal system, especially with the “alternative obligations” (57/A) developed in recent years, is trying to place the balance between public security and individual freedom on a more humane ground.

Source:

• Presidency of Migration Management of the Ministry of Interior of the Republic of Turkey: https://www.goc.gov.tr

• Constitutional Court Decision Information Bank: https://kararlarbilgibankasi.anayasa.gov.tr

• Legislation Information System (Law No. 6458): https://mevzuat.gov.tr/MevzuatMetin/1.5.6458.pdf

• United Nations High Commissioner for Refugees (UNHCR) Turkey: https://help.unhcr.org/turkiye