Grounds for detention

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:

1. 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;
2. At border gates, for the purpose of preventing irregular entry;
3. 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. It remains to be seen how the new provision on alternatives to detention from December 2019 are implemented and if this reduces the time spent in pre-removal detention.

Since the changes to the LFIP in December 2019 an alternative to detention may also be ordered but it is too soon to know how this will be implemented in practice. 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 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. There was an increase in such cases in 2018.[15]However, it was reported that people arriving irregularly ‘inadmissible passengers’ are not held for long in the new airport in Istanbul in 2019.[16]

In conformity with the law, the duration of assessment of the applications in the accelerated procedure does not exceed 2-3 days.[17] 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.[18]

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 are concerned that this will create problems and violations of procedural safeguards, and the period of detention, conditions and access to appeal. [19]