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] For instance, Aydın Removal Centre obliged a non-Syrian registered in Afyon to give his signature every week in Aydın.[5] In addition, people were not properly informed of this obligation upon release from the Removal Centre.[6]
Lawyers have appealed cases of reporting obligations after detention is terminated, but with varied outcomes. One case before the Administrative Court of Gaziantep concerned a Yemeni national subject to an administrative decision on reporting obligation five days per week in a city other than his assigned city. The Court annulled the decision on the ground that “the application of this duty will cause irreversible damages for the applicant residing in İstanbul in terms of his family unity and financial burden.”[7]
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
These measures shall not be applied for more than 24-months and non-compliance shall be a ground for imposing pre-removal detention. Article 57(8) LFIP inserts that a person’s electronic tagging device may be examined by the authorities to establish the person’s identity.
In 2019, concerns were expressed about return counselling given reported pressure on detained refugees to voluntarily return.[8] In İstanbul lawyers requested return counselling as an alternative to detention for a woman from Kyrgyzstan, however, the request was rejected by the court. The woman was issued a T6 form with an obligation to report in a specific city.[9]
Two alternatives to detention started to be used more frequently in 2020, i.e. signing in/reporting duties and being placed at a residential address. There was no regulation or guidance on how to implement alternative measures to detention and in practice, lawyers were mainly aware of their clients being asked to undertake reporting duties.[10] People in removal centres in İzmir, Muğla and Aydın were released with a signature obligation and a T6 form. Due to their obligation to sign in, they could not stay in the three provinces but had to go to another city where registrations were open during COVID-19. This meant that they had to travel at their own costs between their city of registration and city of ‘signature’.[11] In Adana, a person was issued a decision on ‘not leaving the domicile’ as an alternative to detention.[12] COVID-19, however, meant that people were released from removal centres in early 2020 because flights were cancelled and in several cities, reporting duties were required. For example, in Van people were released from removal centres, including to reduce the numbers detained there and obliged to give their signature. People were also released from the airport, due to COVID-19. In İstanbul, reporting duties seemed linked to security measures under criminal law.[13]
There was a consultation project on alternatives to detention between DGMM and IOM that started in early 2020. The project “Supporting Directorate General of Migration Management (DGMM) to Develop Alternatives to Immigration Detention (ATDs) System in Türkiye” is funded by the Embassy of the Kingdom of the Netherlands and will support PMM in establishing and implementing an effective ATD program in Türkiye. It finished in early 2021. Under the project legal analysis, cost analysis and feasibility analysis were conducted and guidelines for the implementation of ATD measures were prepared.[14] A new EU project started in March 2021,[15] 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).
[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.
[5] Information provided by a stakeholder in Ankara, February 2020.
[6] Information provided by a stakeholder, February 2019.
[7] 1st Administrative Court of Gaziantep, Decision 2017/1302, 9 October 2017.
[8] Information provided by a stakeholder, February 2020.
[9] Information provided by a stakeholder in İstanbul, March 2020.
[10] Information provided by a stakeholder, March 2021.
[11] Information provided by a stakeholder, March 2021.
[12] Information provided by a stakeholder in Gaziantep, February 2020.
[13] Information provided by a stakeholder, March 2021.
[14] See IOM, Türkiye’s First Standalone Project on Alternatives to Immigration Detention was Finalized, 12 May 2021. Available at: https://bit.ly/3ocw1pk.
[15] See DGMM, “İdari Gözetime Alternatifler” Konulu İstişare Toplantısı Gerçekleştirildi”, (Consultation Meeting on “Alternatives to Administrative Detention” was Held), 9 March 2021, available in Turkish at: https://bit.ly/326TlL6.