Deportation Decision

Deportation in General

States have the right to exclude and expel foreigners who behave in a manner incompatible with their interests. Expulsion is a legal institution recognized under international law that allows states to forcibly remove foreigners from their borders. Each country, based on its sovereignty rights, may expel foreigners within its borders without seeking their consent on grounds such as the protection of public order and public security. This authorization is a practice accepted within the framework of international law in order for states to protect themselves from certain dangers that may arise.

Since deportation is an administrative sanction applied to foreigners, it is necessary to determine who is included in the concept of foreigner. Article 3 of the Law No. 6458 on Foreigners and International Protection defines a foreigner as “a person who has no citizenship ties with the Republic of Turkey”. The concept of foreigner is not a narrow concept that covers only foreign citizens; it also includes stateless persons, foreigners who have applied for international protection or who have international protection status, foreigners with special status, those who have more than one citizenship other than Turkish citizenship, and those who have lost their Turkish citizenship and become foreigners.

Foreigners to be Deported

1. Those deemed deportable under Article 59 of the Turkish Criminal Code

Article 59 of the Turkish Criminal Code No. 5237 on deportation stipulates that the foreigner who is sentenced to imprisonment for the crime he/she committed, after the execution of his/her sentence by applying probation measures or after the conditional release is decided and in any case after the execution of his/her sentence is completed, his/her situation shall be immediately notified to the Ministry of Interior to be evaluated in relation to deportation procedures. When the provision in question is evaluated, it can be said that the administration is given the right of discretion in terms of deportation of the foreigner.

2. Those who are a Director, Member or Supporter of a Terrorist Organization or a Director, Member or Supporter of a Criminal Organization for Profit

Pursuant to the Law on Foreigners and International Protection, persons who are leaders, members or supporters of a terrorist organization and persons who are leaders, members or supporters of a criminal organization for profit are deported. In this context, the concept of “terrorism” should be understood as defined in the Anti-Terrorism Law No. 3713 and “criminal organization for profit” should be understood within the framework set out in the Law No. 4422 on Combating Criminal Organizations for Profit. At this point, it should be noted that in order for the relevant reason for deportation to be applied, it is not required that the situation in question has been determined by a judicial decision.

3. Those who use false information and forged documents in the procedures for entry into Turkey, visa and residence permits

In the event that any of the documents submitted by the foreigner in the entry, visa and residence procedures contain untrue information or a forged document is used, it is an obligation to issue a deportation order against the foreigner in question. The use of forged documents is also regulated as a crime under the Turkish Penal Code, and if the foreigner concerned is sentenced to imprisonment as a result of the prosecution, a deportation decision may also be made based on the reason explained under heading (1).

4. Those who earn their living illegitimately during their stay in Turkey

The foreigner’s illegitimate means of earning a living during his/her stay in Turkey is regulated among the grounds for a deportation order to be issued against the foreigner. It can be said that the term “illegitimate” in the relevant reasoning covers activities that are not subject to a work permit, such as blackmail, prostitution, human trafficking, human smuggling, human trafficking and money laundering.

5. Threats to Public Order or Public Safety or Public Health

The administration has a wide discretionary power to deport foreigners on the grounds of public order, public security and public health. Due to the nature of these concepts, any situation that does not fall under other grounds for deportation may be considered within the framework of this reason.

6. Those who overstay their visa or visa exemption for more than ten days or whose visa is canceled

Pursuant to the Law on Foreigners and International Protection, a visa is defined as “a permit granting the right to stay in Turkey for up to ninety days or allowing transit”, while a visa exemption is defined as “an arrangement that removes the need to obtain a visa”. It is stipulated that the period of stay in Turkey provided by a visa or visa exemption cannot exceed ninety days in every one hundred and eighty days. Therefore, those who overstay their visa or visa exemption for more than ten days or whose visa has been canceled will be deported.

7. Those whose residence permits have been revoked

Pursuant to the Law on Foreigners and International Protection, a residence permit is defined as “a permit to stay in Turkey”. There is no general revocation provision for the revocation of a residence permit, and the issue of revocation is regulated separately for each type of residence permit.

8. Those who have a residence permit but violate the duration of the residence permit for more than ten days without an acceptable justification after its expiration

Failure to extend residence permits within the time limit, irregular migrant behavior and collecting the amount of the fee for the violated period by one times more is an important sanction, and the fine is not considered sufficient and may also be subject to deportation. The duration of residence permits varies according to each type of residence permit and it is not possible for the duration of each residence permit to be the same for the same residence permit.

9. Those found to be working without a work permit

Article 48 of the Constitution stipulates that everyone has the freedom to work and to contract in the field of his/her choice. The right to work is one of the fundamental rights that must be recognized to the individual and is among the public rights and freedoms. The fact that this right is granted to everyone is interpreted as no discrimination between foreigners and citizens. However, the granting of this right to foreigners is not an unlimited and absolute freedom. According to Article 16 of the Constitution, fundamental rights and freedoms may be limited for foreigners by law in accordance with international law. The work of foreigners in Turkey is subject to authorization. Therefore, foreigners who wish to work must obtain a work permit. Work permits are generally issued by the Ministry of Labor and Social Security. Foreigners who work without a work permit are included in the scope of those who will be deported and it is aimed to prevent unauthorized and unregistered work. It should be noted that foreigners who are found to have used their work permit in violation of its purpose will also be considered within the framework of this reason for deportation.

10. Those Who Violate or Attempt to Violate the Provisions on Legal Entry into or Legal Exit from Turkey

The article titled “Entry into and exit from Turkey” of the Law on Foreigners and International Protection stipulates that entry into and exit from Turkey shall be made at border gates with a valid passport or a document substituting for a passport, and the article titled “Administrative Fine” stipulates that foreigners who enter or leave Turkey illegally or attempt to do so shall be subject to an administrative fine of two thousand Turkish Liras and then deported.

11. Foreigners found to have entered Turkey despite being banned from entering Turkey

The article titled “Prohibition of entry into Turkey” of the Law on Foreigners and International Protection stipulates that foreigners who are deemed to be inconvenient to enter Turkey in terms of public order or public security or public health may be banned from entering the country. The duration of the ban on entry into Turkey is a maximum of five years, but may be increased for a maximum of ten years in case of a serious threat to public order or public security. An entry ban order prevents the foreigner from entering Turkey. However, a deportation decision must be taken against the foreigner who somehow entered Turkey despite the entry ban.

12. Those whose applications for international protection have been rejected, who have been excluded from international protection, whose applications have been deemed inadmissible, who have withdrawn their applications, whose applications have been deemed withdrawn, whose international protection status has expired or has been revoked, and who do not have the right to stay in Turkey after the final decision made against them

Foreigners whose applications for refugee, conditional refugee and subsidiary protection are rejected; foreigners whose applications for refugee, conditional refugee and subsidiary protection are rejected; foreigners whose applications are found inadmissible within the scope of foreigners excluded from international protection, inadmissible applications, foreigners from the first country of asylum and foreigners from the safe third country; foreigners who have withdrawn or deemed to have withdrawn their applications; foreigners whose international protection status has expired and foreigners whose international protection status has been revoked will be deported after the final decision issued against them, unless they have the right to stay in Turkey in another way. At this point, the final decision is defined as the decision made by the Directorate General of Migration Management or decisions that cannot be appealed to the judiciary.

13. Those whose residence permit extension applications are rejected and who do not leave Turkey within ten days

Pursuant to the Law on Foreigners and International Protection, in order for a deportation decision to be taken against the foreigner, the residence permit extension application must be rejected, the foreigner must not leave Turkey within ten days of the rejection decision and the foreigner must not leave the country by going to the border gate. Residence permit extension applications must be submitted to the governorates starting sixty days before the expiry date of the current residence permit and in any case before the residence permit expires. Foreigners who apply for a residence permit extension are issued a fee-free document. With this document, foreigners can legally stay in Turkey until a decision is made about them, even if their residence permit has expired.

14. Those Assessed to be Associated with Terrorist Organizations Defined by International Institutions and Organizations

Pursuant to the Law on Foreigners and International Protection, a deportation decision will be taken against foreigners who are considered to be associated with structures defined as terrorist organizations by international institutions and organizations. However, it should not be overlooked that a court decision on the foreigner’s connection with a terrorist organization will not be sought in the issuance of a deportation order.

Deportation Decision and its Implementation in General

According to the Regulation on the Implementation of the Law on Foreigners and International Protection, a deportation order is “an administrative decision to remove a foreigner who does not have the right to stay in Turkey to his/her country of origin, country of transit, country of transit to Turkey or another third country”. A deportation order bears the characteristics of an administrative act due to its administrative decision characteristic; for this reason, the authority authorized to take the decision is an administrative authority that can exercise public power and the consent of the addressee is not sought since it is an act made by a unilateral declaration of will.

1. Obtaining the Deportation Decision

In the presence of one of the grounds for deportation, the decision to deport the foreigner is taken upon the instruction of the Directorate General of Migration Management or ex officio by the governorates, separately for each foreigner. The administration is not given discretionary power in the deportation decision. When the administration determines the existence of the foreseen conditions, it is obligatory to take a deportation decision on the foreigner. However, it is accepted that the administration has discretion as to whether public order, public security and public health reasons are met.

The deportation order, together with its grounds, shall be notified to the foreigner or his/her legal representative or lawyer. If the foreigner is not represented by a lawyer, he/she or his/her legal representative shall be informed about the outcome of the decision, appeal procedures and deadlines. Within the framework of this process, “notification” is one of the most important stages. In the case of Abdolkhani and Karimnia v. Turkey, the European Court of Human Rights accepted the application on the grounds that the individuals were not informed of the reasons for their detention and that they were not informed in a language they understood. For this reason, the notification process should be considered as a tool that enables the understanding of its content, not its form.

2. Determination of the Country of Deportation

It is a requirement of the obligation to respect human rights that public authorities conduct a comprehensive and diligent investigation phase in determining the country of deportation of the foreigner. Pursuant to the Law on Foreigners and International Protection, “foreigners may be deported to their country of origin or transit country or to a third country with a deportation order”. In determining the country to which the foreigner will be deported, his/her citizenship status, whether he/she will be accepted to the country to which he/she is planned to be sent, and his/her request for a third country to which he/she can go, if any, are taken into consideration.

3. Invitation to Leave Turkey for Deportation

Those who have been ordered deported shall be given a period of not less than fifteen days and up to thirty days to leave Turkey, provided that this period is specified in the deportation order. However, this period shall not be granted to those who are at risk of flight or disappearance, who violate the rules of legal entry or legal exit, who use false documents, who try to obtain or are found to have obtained a residence permit with false documents, who pose a threat to public order, public security or public health.

Persons who are given time to leave Turkey shall be given an exit permit and those who do not exit within the allotted time without an acceptable excuse shall be taken into administrative detention by the governorate and deportation procedures shall be carried out from the removal center. Foreigners who are invited to leave cannot apply for a residence permit or work permit within the allotted period. Of those who are invited to leave Turkey, those who leave the country in due time may not be subject to an entry ban. However, those who arrive at the border crossing after the invitation to leave has expired will be banned from entering according to the duration of the visa or residence violation

4. Administrative Surveillance Decision

There is no commonly accepted definition of administrative detention and there is no uniform practice as to where and for how long a person is considered to be under administrative detention. Despite this situation, some international regulations define administrative detention. The Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines administrative detention as “detention in a public or private place where it is not authorized by order of any judicial, administrative or other authority”. In the doctrine, administrative detention is a precautionary measure applied in the presence of certain conditions during the implementation of deportation and refoulement decisions and during the evaluation of the applications of international protection applicants.

Deportation and administrative detention processes are determined according to the entry and exit of foreigners and their impact on public order. When foreigners are apprehended, the situation is reported to the governorate within 48 hours and a deportation decision is made within 48 hours. Administrative detention may be ordered for persons who pose a flight risk, use false documents, violate exit rules or threaten public order and security. Detained persons are taken to a removal center within 48 hours. The detention period is limited to 6 months, but may be extended for another 6 months in cases such as non-cooperation of the foreigner. The governorate evaluates this period every month and if it is not deemed necessary, detention is terminated immediately.

5. Alternative Obligations for Deportation

The concept of alternative measures to administrative detention covers measures and obligations that are less restrictive of fundamental rights and freedoms than administrative detention, and these measures are considered to be more humane, less restrictive of fundamental rights and freedoms and less burdensome on public finances than administrative detention. In this framework, the European Court of Human Rights states that the administrative detention measure must be necessary, reasonable and proportionate; while evaluating this issue, it is assessed whether there is a less restrictive measure instead of administrative detention. In particular, for children, families with children and persons with serious illnesses, alternative obligations should be imposed, if possible, instead of administrative detention.

Alternative obligations to administrative detention include residence at a specific address, regular reporting, family-based return, return counseling, voluntary service in the public interest, collateral and electronic monitoring. One or more of these obligations may be imposed on the foreigner for a maximum period of 24 months. In case of non-compliance with alternative obligations, foreigners may be placed under administrative detention. If the foreigners who have a collateral obligation do not leave Turkey within the time limit and this situation occurs outside of force majeure or court proceedings, the collateral is transferred to the Treasury.

6. Removal Centers

Removal centers have an important function in the execution of the deportation order and it is only possible to accommodate foreigners who are not wanted in the country and for whom deportation and administrative detention orders have been issued, under administrative detention orders, until the exit procedures are completed.

The services provided in removal centers are organized in accordance with the fundamental rights and needs of individuals. In these centers, emergency and basic health services are provided free of charge to foreigners who do not have financial means. Furthermore, the right of foreigners to meet with relatives, notaries, legal representatives and lawyers is guaranteed and access to telephone services is also provided.

Visitors are given the opportunity to meet with consular officials of the country of nationality and representatives of the United Nations High Commissioner for Refugees. The best interests of children are taken into consideration; accordingly, families are accommodated in separate facilities and necessary measures are taken by the Ministry of National Education to ensure that children benefit from education and training.

7. Prohibition of Entry into Turkey for Deported Foreigners

Entry bans may be imposed on foreigners who pose a risk to public order, security or health. The decision to ban the entry of deported foreigners is taken by the Directorate General or governorships. However, the entry ban may not be imposed on those who leave voluntarily before the expiry of their visa or residence period, those who pay administrative fines and those who do not exceed certain violation periods. The ban may also not be imposed on those who leave Turkey within the prescribed period. The Directorate General may lift the entry ban or grant a limited entry permit.

8. Execution of the Deportation Decision

At the point of implementation of the deportation decision, foreigners are taken to the border gates by law enforcement units. Travel expenses are primarily covered from the foreigner’s available funds; in case of insufficiency, the costs are undertaken by the Directorate General. The foreigner may not be allowed to enter Turkey unless the travel expenses are reimbursed.

The Directorate General may cooperate with international organizations and authorities of the relevant country in deportation procedures. Furthermore, employers or guarantors of unauthorized labor are obliged to pay the deportation costs. Foreigners’ passports or other documents may be held until the deportation proceedings are completed.

9. Voluntary Return

Irregular migrants who have been subject to a deportation order and who wish to voluntarily return to their country of origin may be provided with in-kind or cash support when the Directorate General deems appropriate. Voluntary return efforts are carried out in cooperation with international organizations, public institutions and civil society organizations.

10. Prohibition of Refoulement

The prohibition of refoulement is a fundamental principle of international law, which ensures that persons seeking refuge in a safe country from persecution or life-threatening dangers should not be returned to countries where they would face those dangers. Article 3 of the European Convention on Human Rights, stating that no one shall be subjected to torture, inhuman or degrading punishment or treatment, constitutes the fundamental basis of the prohibition of refoulement and this principle is considered to be guaranteed in the decisions of the European Court of Human Rights.

The Law on Foreigners and International Protection also adopts the prohibition of refoulement as a fundamental principle. Article 4 of the Law stipulates that no one shall be sent to a place where he/she is subjected to torture, inhuman or degrading treatment or to conditions that threaten his/her life or freedom. Furthermore, Article 63 of the Law provides for the granting of “subsidiary protection” status to persons who, if returned to their country of origin, would face threats such as the death penalty, torture, inhuman treatment or indiscriminate violence. These regulations reinforce the application of the principle of non-refoulement.

Judicial Remedies against Deportation Decisions

Deportation is an administrative act and judicial review can be obtained by filing an action for annulment against this decision. Annulment actions are a type of lawsuit that aims to annul unlawful administrative acts by administrative judicial bodies. These lawsuits may be filed by persons whose interests are violated for the annulment of administrative acts that are contrary to the law in terms of jurisdiction, form, reason, subject matter and purpose.

1. Competent and Competent Court for Deportation Decision

Pursuant to Article 32 of the Administrative Procedure Law No. 2577, the administrative court in the province where the governorate that issued the deportation decision is located is authorized and competent. Therefore, an annulment action should be filed before the administrative court in the place or jurisdiction where the governorship that issued the deportation order is located. If there is more than one administrative court in this place, these cases must be heard at the 1st Administrative Court.

2. Period for filing a lawsuit against deportation

Pursuant to the Law on Foreigners and International Protection, the foreigner or his/her legal representative or lawyer may appeal against a deportation decision to the administrative court within seven days of the notification of the decision. The person who applies to the court shall also notify the authority that issued the deportation decision of his/her application. In the case of applications to the court, the file is deemed to be finalized upon the submission of the defense or the expiration of the defense submission period.

3. Optional Administrative Recourse in Deportation Procedure

Pursuant to the Administrative Procedure Law, it is possible to file a voluntary administrative application against the deportation of a foreigner without filing an annulment action. At this point, the relevant person may request the administration to revoke, withdraw, modify or establish a new deportation procedure. The administrative application made within the time limit for filing a lawsuit will suspend the time limit for filing a lawsuit. If the administration remains silent or responds negatively within the 30-day period, the time limit for filing a lawsuit will continue to run from where it left off.

4. Duration of Proceedings in Deportation Decisions

The Law on Foreigners and International Protection has introduced a different regulation in terms of duration from the general rules of administrative procedure. Within this framework, the general time limit for filing a lawsuit against a deportation order is set at seven days. Holding a hearing is at the discretion of the court. The applications shall be finalized within fifteen days from the completion of the file or, in cases where an interim decision or a hearing is required, from the completion of these. The court’s decision on this matter shall be final. Without prejudice to the consent of the foreigner, the foreigner shall not be deported within the period for filing a lawsuit or, in case of a judicial remedy, until the conclusion of the proceedings.

5. Suspension of Execution of Deportation Decision

A stay of execution is the suspension of the presumption of legality and the execution of an administrative act until the end of the proceedings in order to prevent these negative consequences and to protect the public interest, in cases where the implementation of an administrative act may cause irreparable or impossible damages and the act is clearly contrary to the law. One of the important provisions of the Law on Foreigners and International Protection regarding the judicial remedy against deportation decisions is the stay of execution.

There is a guarantee that the foreigner will not be deported within the time limit for filing a lawsuit or in the event of a judicial remedy, until the conclusion of the proceedings. Pursuant to the Administrative Procedure Law, in cases filed before administrative courts or the Council of State, a request and a decision of the court are required to stay the execution of an administrative act. However, in cases filed against deportation orders issued under the Law on Foreigners and International Protection, pursuant to the special provision in Article 53, there is no need for a stay of execution request or a court decision for the proceedings subject to the annulment action.

6. Individual Application to the Constitutional Court

The individual application allows persons whose fundamental rights and freedoms have been violated by the public power to apply to the Constitutional Court after exhausting other remedies. In order to file an application, ordinary legal remedies must be exhausted. However, the individual application does not include the assessments made in the legal remedies.

Actions that interfere with constitutional rights, such as deportation, can be subject to individual application after the administrative court decision has become final. Applications can be made directly, through the courts or through foreign representative offices.

The following information must be included in the application petition:

• Identity and address information of the applicant and his/her representative, if any
• Rights and articles of the Constitution allegedly violated
• Grounds for violation and process for exhaustion of remedies
• Date of learning of the violation (if there is no remedy)
• Damages suffered and evidence relied upon

The petition must be accompanied by a copy of the decisions that are said to have caused the violation and proof that the fee has been paid. The application must be filed within 30 days from the date of exhaustion of remedies or from the date of learning of the violation. In the case of a justified excuse, the application may be filed with evidence within 15 days from the date the excuse ceases to exist. If the excuse is deemed valid, the application will be accepted.

Frequently Asked Questions

Why Us?

As Güneş & Güneş Law Office, we provide comprehensive legal support to our clients during the deportation process of foreigners. Deportation proceedings are a complex administrative process and require the protection of the fundamental rights of foreigners and the execution of the process in accordance with the law. Below is the support we provide:

1. Legal Advice and Process Management: We provide legal guidance at every stage of the deportation process under the Law on Foreigners and International Protection. We analyze the situation in detail in order to best defend our clients’ rights.

2. Appeal and Litigation Processes: We provide professional support to our clients who wish to appeal the deportation decision or file an annulment lawsuit against this decision. We take the necessary steps to prevent loss of rights in these processes that require swift action.

3. Alternative Solution and Determination of Obligations: We inform our clients about more humane and less restrictive measures that can be applied instead of administrative detention and deportation orders and ensure that the processes are carried out with a humanitarian approach.

4. Refoulement and International Protection Applications: We prepare international protection applications for our clients who fall within the scope of the prohibition of refoulement and carry out the necessary appeal processes.

5. Protection of Rights: Within the framework of the European Convention on Human Rights and other international conventions, we take the necessary measures to ensure that our clients’ rights are not violated and, if necessary, we file individual applications.

Güneş & Güneş Law Office is a strong solution partner in deportation processes with its knowledge based on international law, expert staff and client-oriented service approach. We are at your side to manage the process in the best way and protect the rights of our clients.