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 four 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 Türkiye;
- Have used false or forged documents;
- Have not left Türkiye 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]
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.[6] 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. Pre-removal detention orders continue to be issued towards asylum seekers; however, some people are released after their application for international protection has been registered. Due to the severe barriers to the registration of applications from Removal Centres, even this may involve a lengthy period of pre-removal detention. There is not much evidence available about how the new implementing regulation on alternative measures has been put into practice, but in 2022 stakeholders reported that reporting duties and being placed at a residential address were used more frequently.[7] See the section on Detention Alternatives.
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 stakeholders, the combination of the registration ban in certain provinces and the travel ban continued to force Syrians either to stay illegally in one province or to travel illegally to other provinces, thus risking detention and deportation in 2022. [8] 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, since 2018[9] the authorities have 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).
In 2019, the LFIP was amended as concerned the rules on ‘inadmissible passengers’ (kabul edilemez), 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 shared their concerns that this practice had created problems and violations of procedural safeguards, and about the period of detention, conditions and access to appeal.[10] (See Access to the territory).
In practice, it is widely reported that applicants for international protection are held in facilities at the airport. It was reported that people arriving irregularly ‘inadmissible passengers’ were held for long in the new airport in İstanbul in 2022.[11] (See Access to the territory). 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.[12]
After being apprehended by law enforcement, irregular migrants’ fingerprints and pictures are stored in a database shared by the General Directorate of Security, the Gendarmerie General Command, the Coast Guard Command, and the Directorate of Migration Management. Foreign nationals transported to a removal centre are interviewed to determine their identification, nationality, and travel documents. Deportation processes are carried out if considered appropriate when the required legal process is finished. However, in some circumstances, detainees cannot be deported since Türkiye lacks removal arrangements with the relevant countries.[13]
It is reported that in certain provinces such as Hatay, Article 8(3) of Temporary Protection Regulation is used as a legal basis that creates a de facto detention regime without procedural safeguards. The provision mentions the possibility of keeping foreigners who are to be excluded from temporary protection in certain designated locations without taking them under administrative detention.[14]
[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] Article 96(7) RFIP.
[7] Information provided by a stakeholder, May 2023.
[8] Information provided by various stakeholders, June 2023.
[9] Information provided by various stakeholders, May-June 2023.
[10] Mülteci-Der, Joint Assessment: Proposed Amendments in the Law on Foreigners and International Protection of Türkiye, 4 December 2019, available at: http://bit.ly/2IRYoVQ.
[11] Information provided by a stakeholder, May 2023.
[12] 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 Türkiye and enter Greece with a counterfeit passport. B.T. was detained in Sabiha Gökçen Airport in İstanbul 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.
[13] Relief Web, ‘Turkiye: Joint Submission to the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families’, 2022, available at: https://bit.ly/3NIquUs.
[14] Information provided by various stakeholders, May-June 2023.