Pehlivan & Güven Law FirmPublished:
Administrative detention (idari gözetim) is applied as a preventive measure to hold a person for security reasons. Administrative detention is different from a prison sentence. Administrative detention is not related to the foreigner having committed a crime. For a foreigner, being held in a closed or open penal institution is different from being held in a removal centre.
The 1951 Geneva Convention Relating to the Status of Refugees is a convention to which Türkiye is a party. Article 9 of the Convention provides that states may take provisional measures under certain conditions. In international law, administrative detention, as a provisional measure applied in exceptional circumstances, derives from this Convention.
Under Article 57/2 of the Law on Foreigners and International Protection, an administrative detention order is applied to foreigners who are subject to a deportation order and who are in certain situations.
Among those subject to a deportation order, for foreigners who:
The risk of absconding or disappearing is the most common ground cited in administrative detention orders. A foreigner who is subject to a deportation order must file a lawsuit within seven days to have the deportation order annulled. Governorships also issue an administrative detention order together with the deportation order. Because there is a risk that foreigners will no longer be at their addresses after a deportation order, the administrative authorities hold them in removal centres, which ensures that the order can be enforced if no lawsuit is filed.
If it is found that a foreigner did not enter Türkiye lawfully, or stayed longer than they were legally permitted to stay, an administrative detention order is issued and they are sent to a removal centre. If a foreigner did not enter Türkiye lawfully and has not made an application for international protection, commonly known as a refugee application, they are considered to be in the country without the knowledge of the administrative authorities, and an administrative detention order is issued. In a separate article we will explain that foreigners who came to Türkiye by unlawful means may apply for international protection if they meet the conditions.
The most common situation in practice is that foreigners enter Türkiye lawfully and hold valid visas, but do not leave the country within the legal periods. Foreigners must obtain permission from the administrative authorities for the periods they stay within Türkiye's borders. However, where foreigners do not leave the country within the legal periods and stay in Türkiye beyond them, which is referred to as a visa violation, an administrative detention order is issued and they are sent to removal centres.
The documents that foreigners submit to the administrative authorities in Türkiye are expected to be genuine. Cases arise where foreigners submit forged identity documents or passports to the administrative authorities. Submitting forged documents in Türkiye is both a criminal offence under criminal law and a ground for an administrative detention order under the law on foreigners. In practice, foreigners are also sometimes arrested (placed in pre-trial detention) by the criminal courts. If pre-trial detention is not ordered, an administrative detention order is issued.
These foreigners belong to the group in point 2: those who breach the rules for entering and leaving Türkiye. In practice, foreigners usually fall into visa violation for economic reasons, and sometimes as a result of errors by educational institutions. There are also cases where foreigners who entered under a visa exemption stay beyond the legal period. We recommend that you also read our other article on what to watch out for to avoid a visa violation.
For foreigners alleged to pose a threat to public order, public security or public health, the relevant governorship issues both a deportation order and an administrative detention order. Here too, in practice, the Directorate General also places a restriction code (tahdit kodu) on foreigners who pose a threat to public order, public security or public health.
As a result, for foreigners who pose a threat to public order, public security or public health:
Where a foreigner is considered a threat to public order, public security or public health, three separate legal proceedings will need to be started. These three separate legal proceedings are:
Administrative detention can end in four different ways.
If the administrative court annuls the deportation order in an action for annulment filed before it, the administrative detention order is also terminated.
Article 57/3 of the Regulation on the Implementation of the Law on Foreigners and International Protection provides: “For foreigners in respect of whom the judicial authorities have decided to annul the deportation order, the deportation order and, if any, the administrative detention order shall be terminated.”
An objection to the Criminal Judgeship of Peace (Sulh Ceza Hakimliği) is available as a legal remedy to have the administrative detention order lifted. Filing an objection does not suspend administrative detention. While the objection is being considered, the foreigner continues to stay in the removal centre. The foreigner remains in the removal centre unless the Criminal Judgeship of Peace accepts the objection and lifts the administrative detention order.
Following the objection, the Criminal Judgeship of Peace may decide to lift administrative detention. If the Criminal Judgeship of Peace rejects the objection, administrative detention continues. The law does not set a time limit for the objection. Although the law provides that the Criminal Judgeship of Peace shall decide on the objection within 5 days, in practice this is not possible. Because it takes time for the foreigner's file to reach the Criminal Judgeship of Peace, the judgeship sometimes does not decide within 5 days.
The administrative detention order is issued by the relevant Governorship. The Governorship reviews the administrative detention order monthly. If continued administrative detention is no longer deemed necessary, the governorship may lift it on its own initiative.
Article 57/4 of the Law on Foreigners and International Protection provides: “Whether continued administrative detention is necessary shall be reviewed regularly every month by the governorship. Where deemed necessary, the thirty-day period need not be awaited. For foreigners whose continued administrative detention is not deemed necessary, administrative detention shall be terminated immediately. These foreigners shall be subject to alternatives to administrative detention under Article 57/A.”
In practice, when the relevant governorship lifts an administrative detention order, the alternatives to administrative detention set out in Article 57/A of the Law on Foreigners and International Protection are applied. Of the alternative obligations in that article, the reporting (signature) obligation appears to be the most commonly used.
Administrative detention orders are time-limited. They end when the period expires. Article 57/3 of the Law on Foreigners and International Protection provides: “The period of administrative detention may not exceed six months.” In practice, administrative detention orders are usually issued for 6 months. When this 6-month period expires, under Article 57/3 of the Law on Foreigners and International Protection, the administrative detention period may be extended once by 6 months “where the deportation procedures cannot be completed because the foreigner does not cooperate or does not provide correct information or documents about their country”. In short, an administrative detention order is issued for 6 months, but it may be extended once for a further 6 months.
Foreigners placed in administrative detention are held in removal centres. Article 3 of the Regulation on the Implementation of the Law on Foreigners and International Protection defines removal centres as “centres where foreigners subject to an administrative detention order are temporarily held and where their basic humanitarian needs are met during this period”.
The provinces in our country with removal centres are: Adana, Ağrı, Ankara, Antalya, Aydın, Balıkesir, Bayburt, Bursa, Çanakkale, Çankırı, Edirne, Erzurum-1, Erzurum-2, Gaziantep, Iğdır, İstanbul (6), İzmir, Kayseri, Kırklareli, Kocaeli, Kütahya, Malatya-1, Malatya-2, Muğla, Niğde, Şanlıurfa and Van.
The basic humanitarian needs of foreigners are met in removal centres.
