The LFIP provides for two types of administrative detention:
- Administrative detention of international protection applicants during the processing of their applications;[1] and
- Administrative detention for the purpose of removal.[2]
Detention of international protection applicants
The decision to detain an applicant for international protection is issued by the governorate of the “satellite city” in which the applicant resides. That said, administrative detention of international protection applicants must be an exceptional measure.[3] Persons “may not be detained for the sole reason of having submitted an international protection application.”[4]
Article 68(2) LFIP identifies 4 grounds that may justify detention of international protection applicants:
- In case there is serious doubt as to the truthfulness of identity and nationality information submitted by the applicant for the purpose of verification of identity and nationality;
- At border gates, for the purpose of preventing irregular entry;
- Where it would not be possible to identify the main elements of the applicant’s international protection claim unless administrative detention is applied;
(ç) Where the applicant poses a serious danger to public order or public security.
In practice, there is no substantial information on detention being ordered under Article 68 LFIP for the purpose of the international protection procedure. Most detained asylum seekers are deprived of their liberty on the basis of pre-removal detention.
Pre-removal detention
According to Article 57(2) LFIP, detention for the purpose of removal may be ordered to persons issued a removal decision who:
- Present a risk of absconding;
- Have breached the rules of entry into and exit from Turkey;
- Have used false or forged documents;
- Have not left Turkey after the period of voluntary departure, without a reasonable excuse;
- Pose a threat to public order, public security or public health.
The law further provides that detention shall immediately cease where it is no longer necessary.[5] Judgments from Magistrates’ Courts of Antalya and Hatay in 2018 held that there is no basis to detain under Article 57 LFIP if removal cannot be carried out due to interim measures from the Constitutional Court and the Administrative Court.[6] Conversely, the Magistrates’ Court of Van has reached the opposite conclusion in similar cases.[7]
The RFIP provides that where a person makes an application for international application while detained in a Removal Centre, he or she will remain in detention without being subject to a separate detention order for the purposes of the international protection procedure.[8] This not only runs contrary to the LFIP, which provides that applicants for international protection are protected from deportation, but also raises the risk that grounds for detention under Article 68 LFIP will not be adequately assessed with a view to maintaining or releasing an applicant from pre-removal detention. In practice, asylum seekers remain subject to pre-removal detention orders, although some persons are released after their application for international protection has been registered.[9] Even this can nevertheless entail a prolonged period of pre-removal detention due to the significant obstacles to the Registration of applications from Removal Centres. There is limited information on how the new provision on alternatives to detention from December 2019 has been implemented but practice in 2020 seems to indicate an increased use of reporting duties and being placed at a residential address. See section on Alternatives to detention.
Detention without legal basis
Beyond detention in the international protection procedure and pre-removal detention, a number of migrants and asylum seekers are arbitrarily detained without legal basis. Firstly, persons who are apprehended outside their designated province (“satellite city”) may be detained in order to be transferred back. According to HRW, the combination of the registration ban in certain provinces and the travel ban forces Syrians either to stay illegally in one province or to travel illegally to other provinces, thus risking detention and deportation. [10] While it appears that detention is imposed on applicants who violate residence restrictions with varying rigour, often depending on different factors such as the nationality of the individual, in 2018 and 2019[11] the authorities intensified checks on persons travelling outside their designated province, resulting in an increasing number of applicants for international protection detained in Removal Centres (see Freedom of Movement). Administrative detention based on a lack of travel permission was common in 2019.[12] In 2020 travel restrictions still applied and there were new restrictions due to the COVID-19 pandemic. Intercity travel banned for several weeks from April 2020.There was no information given by stakeholders on how this affected detention practices.
In addition, persons arriving at international airports and refused entry into Turkey are also held under a regime of detention as “inadmissible persons” (kabul edilemez), even though this occurs de facto. Turkey does not consider holding people in transit zones as a form of detention, on the basis that “at any time inadmissible passengers can leave holding areas to travel to a country where they would like to go.”[13] These persons are required to sign an “inadmissible passenger form” (kabul edilemez yolcu formu).[14]
In practice, it is widely reported that applicants for international protection are held in facilities at the airport. However, it was reported that people arriving irregularly ‘inadmissible passengers’ are not held for long in the new airport in Istanbul in 2019.[15] In 2020 due to COVID-19 restrictions people held in detention were released to allow for social distancing measures in detention and asked to report regularly or stay at a particular address.
In conformity with the law, the duration of assessment of the applications in the accelerated procedure does not exceed 2-3 days.[16] However, even though this is not formally regarded as a form of detention, as stated in the judgment of the Constitutional Court in B.T., any detention beyond 48 hours prior to transfer to a Removal Centre is unlawful and constitutes a violation of the right to liberty.[17]
In 2019 the LFIP was amended regarding ‘inadmissible passengers’ to say that ‘Foreigners covered under this article shall stay at the designated areas at border gates until the process in relation to them is finalised.’ NGOs were concerned that this would create problems and violations of procedural safeguards, and about the period of detention, conditions and access to appeal. [18] It was difficult to know how this was implemented in practice in 2020 due to COVID-19 restrictions on admissible and inadmissible passengers and quarantine, that took precedence.
[1] Article 68 LFIP.
[2] Article 57 LFIP.
[3] Article 68(2) LFIP; Article 96(1) RFIP.
[4] Article 68(1) LFIP.
[5] Article 57(4) LFIP.
[6] 2nd Magistrates’ Court of Antalya, Decision 2018/1761, 2 April 2018; 2nd Magistrates’ Court of Hatay, Decision 2018/4659, 26 December 2018.
[7] 2nd Magistrates’ Court of Van, Decision 2018/6023, 27 November 2018; Decision 2018/6166, 7 January 2018.
[8] Article 96(7) RFIP.
[9] Information provided by a stakeholder, February 2018.
[10] HRW, Turkey Stops Registering Syrian Asylum Seekers, July 2018, available at: https://bit.ly/2XM5t2V.
[11] For the situation for Syrians in Istanbul, see: Amnesty International, ‘Turkey: Syrians illegally deported into war ahead of anticipated ‘safe zone’’, 25 October 2019, available at: https://bit.ly/2XTTa4V; and Human Rights Watch, ‘Turkey: Syrians being deported to danger’, 24 October 2019, available at: https://bit.ly/2VFjCw7.
[12] Information provided by a stakeholder, March 2020.
[13] Council of Europe, Response of the Turkish Government to the report of the CPT on its visit to Turkey from 16 to 23 June 2015, CPT/Inf (2017) 33, 17 October 2017, available at: http://bit.ly/2G8tjL7, 3.
[14] DGMM, Kabul Edilemez Yolcu Formları, available at: https://bit.ly/2Fz961l.
[15] Information provided by a lawyer from the Istanbul Bar Association, March 2020.
[16] Information provided by a stakeholder, March 2018.
[17] Constitutional Court, B.T., Decision 2014/15769, 30 November 2017, available at: https://bit.ly/2IWjuS0. The applicant was an Uzbek national who tried to exit Turkey and enter Greece with a counterfeit passport. B.T. was detained in Sabiha Gökçen Airport in Istanbul for 6 days before being transferred to Kumkapı Removal Centre. There, he applied for international protection and after 44 days he was released and assigned to Sinop. See also Anadolu Agency, ‘AYM’den Özbekistan vatandaşı için hak ihlali kararı’, 16 February 2018, available in Turkish at: https://bit.ly/2pIzGhq.
[18] Mülteci-Der, Joint Assessment: Proposed Amendments in the Law on Foreigners and International Protection of Turkey, 4 December 2019, available at: http://bit.ly/2IRYoVQ.