Article 68(3) LFIP requires an individualised assessment of the necessity to detain, and the consideration of less coercive alternatives before detention in the international protection procedure. It instructs authorities “to consider whether free residence in an assigned province and regular reporting duty as per Article 71 LFIP will not constitute a sufficient measure”. The residence and reporting obligations set out in Article 71 LFIP involve residence in a designated Reception and Accommodation Centre, a specific location or a province, and reporting to the authorities at designated intervals.[1]
The LFIP states that the competent authority may end detention at a later time following the detention order and put in place less coercive alternative measures.[2] This is echoed by the RFIP, which provides that an applicant who is released from administrative detention may be required “to fulfil other obligations besides mandatory residence and notification obligation.”[3] Both provisions are problematic as they refer to such obligations after detention is lifted rather than before it is ordered.
Since 2019, it has been observed that applicants who were released after the expiry of the maximum duration of pre-removal detention were issued an Administrative Surveillance Decision (“T6”) and were obliged to regularly report to the PDMM (see Registration). This was a concerning practice, as the imposition of reporting obligations to the PDMM is as an additional restriction when detention may no longer be applied, rather than an alternative to detention. Applicants are often ordered to report to PDMM in the Removal Centre from which they are released, or in provinces located far from their assigned “satellite cities” within tight deadlines, without necessarily possessing the means to get there. NGOs are aware of cases where clients have been obliged to discharge their reporting duties in a distant city, two, three or even five days a week, thereby entailing disproportionate transportation and accommodation costs for applicants.[4] In addition, people were not properly informed of this obligation upon release from the Removal Centre.[5]
New amendments to the law in December 2019 included Article 57(A) LFIP, which lays down alternatives to pre-removal. The measures are:
a) Residence at a specific address
b) Notification
c) Family-based repatriation
ç) Return consultancy
d) Working on a voluntary basis in public benefit services
e) Guarantee
f) Electronic monitoring
In September 2022, the long-awaited implementing regulation on alternative measures entered into force. The regulation establishes the possibility to apply measures that do not limit or restrict their freedom in substitution of administrative detention to an individual who was issued a deportation order.[6] These measures shall not be applied for more than 24-months and non-compliance shall be a ground for imposing pre-removal detention.[7] According to the regulation, alternatives can be applied to these groups of people:
- Persons whose administrative detention has been terminated;
- Persons deemed suitable for alternative duty/duties without a decision of administrative detention;
- Persons whose administrative detention has been terminated as a result of an assessment conducted by the PMM or the relevant governorate;
- Persons whose administrative detention was terminated through the decision of the governorate based on the ruling of a magistrate court.[8]
These individuals are ineligible for an alternative-to-detention determination.
- Persons who face a significant risk of persecution in their country of origin;
- Persons who are at risk of travelling due to severe health issues, age, or pregnancy;
- Individuals receiving treatment for life-threatening diseases;
- Victims of human trafficking who benefit from the victim support process;
- Victims of psychological, physical, or sexual violence until their treatment is completed.[9]
These are the alternative measures detailed in the regulation:
a) Residence at a specific address: The foreigner shall notify the PDMM of the address at which they will reside until deportation. For this measure, either a lease agreement signed by the foreigner or the written consent of the individuals with whom the foreigner will reside is required. The individual must reside in the province where the measure is applied, but they may submit a written request to move to a different province. It is necessary to submit the request to the relevant PDMM for this purpose.
b) Notification: A foreigner may satisfy this requirement in one or more of the following ways:
- Fingerprint verification;
- Voice recognition application;
- Signing in person at PDDM.
c) Family-based repatriation: Family-based repatriation refers to the obligation to ensure that irregular migrants remain with their first and second-degree relatives in Türkiye legally until the deportation order is executed. Therefore, if the foreigner who has been issued a deportation order requests in writing to be subjected to the family-based repatriation, they may remain with their first and second-degree relatives who are legally in Türkiye until the deportation order is executed. This obligation can only be fulfilled at the foreigner’s request. Additionally, written consent is obtained from relatives who will reside with the applicant involved. Their relatives also agree to cooperate with the PDMM during the deportation procedure of the foreigner and to cover their travel expenses.
ç) Return consultancy: Those who have been issued a deportation order and wish to voluntarily return to their home country may receive non-monetary and monetary assistance, as determined by the PMM.
d) Working on a voluntary basis in public benefit services: The details of this obligation are not yet specified in the Regulation, that states that the Ministry will determine them.
e) Guarantee: A person may deposit a PMM-determined quantity as a guarantee for their release within the country until the deportation order is executed. According to the Regulation, the guarantee amount corresponds to 100,000 TRY. After delivering the deposit to the PDMM, the foreigner is no longer under administrative detention. The individual has, however, a duty to notify PDMM. Foreigners have between one and six months to leave Türkiye. If the person fails to leave within this time frame or does not comply with their obligations, the deposit amount is recorded as Treasury income. The amount of the bail shall be returned to the person or their legal representative if it is determined that the person that should have been deported has fled Türkiye, or if the administrative court overrules the deportation order. This obligation does not apply to members of terrorist organisations, their managers, or those regarded to be associated with terrorist organisations.
f) Electronic monitoring: According to the regulation, this obligation is met through a notification via a mobile application to be installed on communication devices by the person subjected to the deportation order that will allow to determine their location, or through the use of electronic clamps. Those identified as having special needs or being in a sensitive situation will be required to notify only through a mobile application. The PDMM ensures that the foreigner subject to this obligation installs the application on their communication device and is informed in writing about the application’s use.
Electronic clamps can be used for the following cases:
- Persons who are the leader, member, supporter or sponsor of a terrorist organisation, criminal organisation, manager, member or supporter;
- Threats to public order or public safety or public health;
- Persons who have been determined to be associated with terrorist organisations identified by international institutions and organisations.
A foreign or legal representative may file a criminal complaint against this obligation.[10]
In practice, lawyers were still mainly aware of their clients being asked to undertake signing in/reporting duties and being placed at a residential address.[11] Particularly, alternatives such as electronic monitoring cannot be implemented by the PPM due to a lack of technological infrastructure.[12]
Since 2019, PMM has participated in multi-stakeholder projects aimed at improving alternative detention policies and procedures. In 2022, a roundtable event was held as part of the Action “Strengthening the Human Rights Protection of Migrants and Victims of Human Trafficking in Türkiye”. Participants from the Council of Europe, international consultants from Canada, the United Kingdom, and Austria, as well as representatives of the PMM of Turkiye attended. A comparative research report on the practical aspects of application of the alternative systems in 4 countries (the UK, the Netherlands, Canada, and Austria) was published, with the aim of supporting the PMM in the preparation of secondary legislation on implementation of alternatives to immigration detention in Turkiye.[13] There have been two projects funded and carried out by the EU Delegation from 2019, focused on the enhancement of removal centres, capacity building (better process management in handling of complaints or disciplinary investigations, coordination with other ministries), alternatives to administrative detention (capacity support in the framework of international standards – two alternatives, giving signature and being placed in a residential place are already actively implemented by removal centers) and access to basic services (implementation of right based healthcare standards like the Mandela standards, access to legal aid, access to protection). With the help of said trainings, a progress has been observed especially in terms of application of different alternatives to detention in 2022.[14] As required by the implementation regulation, each PDMM has, as of 2022, offices to monitor irregular migration, including the use of alternatives to detention.[15] The other project focusing on irregular migration has officially launched by the end of 2022, and its primary goal is to support capacity development of PMM in irregular migration (supporting administrative detention offices of PMM, enhancing the application of alternatives to detention) and regular migration (residence permits, cooperation with transit and countries of origin).[16] It is observed that across country the implementation of alternatives to detention yet remains limited to the requirements of notification and residence at a specific address which was the practice already before the adoption of the new regulation. There have been very few instances where family based repatriation, return consultancy and guarantee are implemented. Assessment for imposing alternatives to detention instead of detention is not carried out systematically and effectively. In Kayseri for instance, there is automatic detention when a removal order is issued and release or alternative measures are implemented after this initial detention. There have been instances where removal orders were cancelled and international protection or temporary protection IDs were re-issued for people who have consistently complied with alternatives to detention.[17]
[1] Article 71(1) LFIP.
[2] Article 68(6) LFIP.
[3] Article 96(5) RFIP. Article 68(6) LFIP only refers to the obligations in Article 71 LFIP where detention is lifted.
[4] Information provided by a stakeholder, February 2018, May 2023.
[5] Information provided by a stakeholder, February 2019, May 2023.
[6] Resmî Gazete,14 September 2022, available in Turkish at: https://bit.ly/3Oapom1.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Information provided by a stakeholder, March 2023.
[12] Information provided by a stakeholder, June 2023.
[13] Council of Europe, ‘Strengthening the Human Rights Protection of Migrants and Victims of Human Trafficking in Turkey’, 2022, available at: https://bit.ly/3JXb3Xo.
[14] Information provided by a stakeholder, June 2023.
[15] Information provided by a stakeholder, June 2023.
[16] Information provided by a stakeholder, June 2023.
[17] Information provided by various stakeholders, June 2023.