The decision to detain an international protection applicant during the processing of their claim must be communicated in writing.[1] The notification letter must provide the reasons justifying detention and the length of detention. The applicant must also be notified of the legal consequences of the detention decision and available appeal procedure. However, the LFIP does not impose a requirement to provide this information in writing.
In practice, due to limited familiarity with the rights of lawyers on the part of Removal Centres’ staff, applicants and their legal representatives rarely receive a copy of the removal decision and/or the detention order so as to know when the time limit for appeal starts running,[2] or receive documents without official signatures and seals.
While there is no requirement of automatic periodic review of the detention decision by either the judiciary or PMM itself in relation to detention in the international protection procedure,[3] pre-removal detention must be reviewed by the governorate on a monthly basis.[4]
The decision to detain can be challenged at the competent Magistrates’ Court through a non-suspensive appeal.[5] The law does not set out a time limit for appealing detention.
The competent Magistrates’ Court judge must decide on the judicial review application within 5 days. The decision of the Magistrates’ Court is final and cannot be appealed. However, there are no limitations on new appeals by the applicant to challenge their ongoing detention.[6]
According to lawyers’ observations, the poor quality of detention review by Magistrates’ Courts persists as a problem. In the İzmir, İstanbul, Aydın, Hatay, Gaziantep, Adana, Kayseri and Erzurum Removal Centres,[7] appeals against detention are rejected as a general rule.[8] In İzmir lawyers are concerned about a ‘systemic practice’ in courts to reject administrative detention reviews.
In 2022, judicial review of administrative detention orders was poor in Agri. One of the reasons was the shortage of personnel, as only one judge per month reviews approximately 500 cases. In Agri, when an Iranian was diagnosed with a severe illness, such as stomach cancer, his detention was terminated. In another case, an Afghan family was being held in a detention centre in Ankara due to an ongoing criminal proceeding, but they were released by the Ankara PDMM on the day their administrative detention appeal was denied by the court.[9]
One crucial gap in the LFIP provisions on detention concerns remedies against detention conditions.[10]
Finally, where administrative detention is unlawful, the applicant can lodge a compensation claim (Tam Yargı Davası) before the Administrative Court.[11] Nevertheless, based on administrative court decisions regarding compensation claims, the viability of this option remained highly questionable.[12]
In 2021, in İstanbul the 15th Administrative Court of İstanbul started to receive applications concerning deportations and international protection applications due to the high workload at the 1st Administrative Court. In 2022, lawyers widely complained about difference of opinion on the same subject matter between the two courts. The first administrative court of İstanbul in particular had some positive practices, especially during the period of prescription in deportation cases.[13] A stakeholder complained that the 15th Administrative Court of Istanbul rejected at least half of their case files in 2022.[14]
When irregular migrants are apprehended, an administrative sanction, a fine between 3700-4200 TRY, is imposed.
[1] Article 68(4) LFIP.
[2] Information provided by a stakeholder, May 2022.
[3] Article 68(6) LFIP only states that detention may be lifted at any point.
[4] Article 57(4) LFIP.
[5] Article 68(7) LFIP; Article 96(6) RFIP. In November 2015, the High Council of Judges and Prosecutors passed a decision to designate the 2nd Chamber of each Magistrates’ Court responsible for appeals against administrative detention decisions within the scope of LFIP.
[6] Article 68(7) LFIP; Article 96(6) RFIP.
[7] Information provided by a lawyer of a Bar Association, February 2018; a lawyer of a Bar Association, February 2018; International Refugee Rights Association, February 2018; a lawyer of a Bar Association, February 2019; a lawyer of a Bar Association, February 2019; information provided by various stakeholders, May-June 2023.
[8] See e.g. 2nd Magistrates’ Court of Gaziantep, Decision 2018/7568, 13 December 2018; Decision 2018/1773, 6 March 2018; Decision 2018/1776, 6 March 2018; 2nd Magistrates’ Court of Van, Decision 2018/6023, 27 November 2018; Decision 2018/6166, 7 January 2018; 2nd Magistrates’ Court of Antakya, Decision 2018/ 4287, 27 November 2018: information provided by various stakeholders, May-June 2023.
[9] Information provided by a stakeholder, May 2023.
[10] For a discussion, see Refugee Rights Türkiye, A pressing need: The lack of legal remedy in challenging material conditions of foreigners under administrative detention in Türkiye, January 2017, available at: https://bit.ly/2WkCcZm.
[11] Constitutional Court, B.T., Decision 2014/15769, 30 November 2017.
[12] Information provided by various stakeholders, June 2023. For further analysis, see; Gamze Ovacık, Turkish Judicial Practices on International Protection, Removal and Administrative Detention in Connection with the Safe Third Country Concept (On İki Levha Publications 2021) 221-250.
[13] Information provided by various stakeholders, May 2023.
[14] Information provided by a stakeholder, May 2023.