A foreign national released from prison in Türkiye may become subject to deportation or administrative detention proceedings. However, release in the criminal file, the deportation decision and being held in a removal centre are separate legal acts. The question families often ask, “The court released him, so why is he still being held?”, usually calls for each of these decisions to be examined separately.
For effective legal assistance, the decisions in the migration file must be obtained as well as those in the criminal file. An action against a deportation decision and an application against an administrative detention decision are pursued before different authorities. Doing one does not mean the other has been done.
Does a Criminal Conviction Automatically Lead to Deportation?
TCK Art. 59 provides for notification and assessment
TCK Art. 59 provides that a foreign national sentenced to imprisonment is to be reported to the Ministry of the Interior, at the relevant stages such as supervised release, conditional release or after completion of the sentence, so that his or her situation can be assessed for deportation proceedings. The criminal court’s judgment does not take the place of the separate act of the migration authorities or of the statutory review of that act. [1]
Article 54 of Law No. 6458 on Foreigners and International Protection sets out the situations in which a deportation decision may be taken. In addition, the non-refoulement principle, the persons against whom a deportation decision may not be taken and individual circumstances must be assessed together. The nature of the offense, as well as whether the judgment has become final, the person’s life in Türkiye and the risks in the country of destination, may matter for the relevant application. [2]
Not every restriction after the release decision has the same basis
There may be a travel ban against the foreign national in the criminal file. There may also be a search or arrest warrant from another criminal file. In addition, the migration authority may have issued an administrative detention decision. A family’s sharing only the information “he was released” is not enough to tell these possibilities apart. The latest decision and the referral records must be seen.
Within What Period Is an Action Filed Against a Deportation Decision?
The special seven-day period for filing an action
Under YUKK Art. 53/3, the foreign national, his or her legal representative or lawyer may apply to the administrative court within seven days of notification against a deportation decision. The application is also notified to the authority that issued the decision. Waiting in the belief that the general administrative action period will apply can lead to a loss of rights. The date of notification, to whom the document was handed and whether the decision was notified in an understandable manner must be recorded. [2]
Under the arrangement as amended by Law No. 7533, applications are to be concluded within fifteen days from the file becoming ready for decision (tekemmül) or, in cases where an interim decision or a hearing is required, from the completion of these. The file is deemed ready for decision when the defense is filed or the period for filing it has passed. For this reason, the period must not be calculated, in every file, as if it begins on the day the action is filed. This provision cannot be used as a service commitment that every concrete file will in fact be concluded on the same date. The statutory finality of the court’s decision and any constitutional application routes, if available, must be examined separately on the basis of the decision and the current provisions.
How does filing an action affect the enforcement of deportation?
Subject to the foreign national’s consent, the foreign national cannot be deported within the period for filing an action and, once judicial remedies are pursued, until the proceedings are concluded. This safeguard does not mean that administrative detention automatically ends as well. The lawfulness of the detention is assessed separately.
For this reason, the nature of the documents the person is made to sign matters. A document that includes voluntary return or consent should not be signed without understanding its content. If such a document exists, the language in which it was explained, the conditions of signing and the person’s real intention are investigated. The family’s account and the information in the official records are assessed together.
How Is an Application Made Against an Administrative Detention Decision?
The competent authority is the criminal judgeship of peace
Against an administrative detention decision under YUKK Art. 57, the foreign national, his or her legal representative or lawyer may apply to the judge of the criminal judgeship of peace (sulh ceza hâkimliği). The application does not stop the administrative detention by itself. The law provides that the judge is to conclude the review within five days; the decision is final. A new application may be made on the claim that the conditions have changed or ceased to exist. [2]
The seven-day period for filing an action against a deportation decision and the application against administrative detention should not be described as if they were subject to the same time rule. However, since deprivation of liberty is involved, the application should not be delayed unnecessarily. If, after the first petition, a new medical report, a fixed address or a document on family circumstances is obtained, its effect is assessed separately.
The duration and continuation of detention require concrete reasons
The basic maximum duration of detention in the law is six months; if the deportation proceedings cannot be completed because the foreign national does not cooperate or does not provide accurate information and documents, an extension of up to six more months may come into question. The extension is not automatic. Whether the detention needs to continue is assessed regularly by the governorate; if the conditions have ceased to exist, it must not be continued.
In the application, not only the total duration but also whether the deportation is actually being carried out, work on the travel document, the country of destination, the basis of the claim of risk of absconding and the sufficiency of lighter obligations are discussed. That a person has just left prison does not by itself prove all the conditions of detention.
Alternative obligations to administrative detention
YUKK Art. 57/A provides for alternative obligations such as residence at a specific address and reporting. For an appropriate option to be assessed, the genuineness of the address, family support, means of communication and the person’s ability to comply with the obligations can be documented. These obligations are also a legal interference; their scope and duration are examined within the framework of their own legislation.
How Are the Non-Refoulement Principle and Family Life Raised?
Documents on personal risk matter
The non-refoulement principle in YUKK Art. 4 concerns the risk of torture or inhuman or degrading treatment and the threats to life and liberty specified in the article. YUKK Art. 55 also contains safeguards for persons against whom a deportation decision may not be taken. Where there is a serious health problem, the medical situation must be explained with concrete documents as regards access to treatment and travel.
The existence of general negative news about a country may not be sufficient on its own in every application. The connection of the threat to the person, past events, official records and current country information are submitted together. A criminal conviction cannot be made a ground for disregarding the prohibition of ill-treatment.
Having a spouse and children in Türkiye
In assessing family life, the genuineness of the relationship, the children’s ages, care dependency, settlement in Türkiye, the difficulties of continuing the family unit in another country and the public order rationale matter. Marriage alone is not an automatic protection that prevents every deportation; but family ties also cannot be disregarded without reasons.
Records showing the actual care relationship, as well as the child’s school registration or civil registry document, may be helpful. In the application, the effects on the family should be explained concretely; the personal data of the children and other family members should be limited to the necessary scope.
What Does the Constitutional Court’s Y.T. Decision Say?
The pilot decision of the Plenary Assembly of the Constitutional Court (AYM) in Y.T., B. No: 2016/22418, dated 30.05.2019, brought out the importance of an application route that can effectively have a claim of ill-treatment examined in deportation proceedings and, where necessary, stop the enforcement. The Court examined the effective-remedy problem that arose because of the statutory arrangement at that date. [3]
The historical context of the decision must be preserved: the old exceptions in the law, which was later amended, should not be conveyed as if they were still in force today. In a current application, the present text of YUKK Art. 53 applies. The main contribution of the decision is the need for claims about the risk of being sent back to be examined effectively before the act is carried out.
Which Documents Should a Foreign National’s Family Collect at the First Stage?
- The release decision in the criminal file and, if known, the decision on continuing judicial control.
- The deportation decision, the administrative detention decision and the separate notification documents.
- Decisions on the continuation or extension of the detention.
- Passport, residence or international protection documents.
- Documents showing the address and family ties in Türkiye.
- Medical reports, treatment records and documents on personal risk in the country of destination.
If the decisions have not been given to the family, obtaining them through the foreign national or an authorized lawyer is considered. There may be a difference between information the family learns from social media and the official decision. In calculating time limits, notification and records of learning of the decision, not hearsay, are the subject of the substantive review.
How Are the Two Separate Applications Followed Together?
A decision file and a timeline should be prepared
The date of leaving prison, handover to law enforcement, admission to the removal centre, notification of the deportation decision and the administrative detention decision may not occur on the same day. For this reason, it is not correct to calculate all time limits from a single “date of apprehension.” The document, date and manner of learning of each act should be recorded separately.
| Act | Authority to apply to | Main issue to follow in the file |
|---|---|---|
| Deportation decision | Administrative court | Notification, the seven-day period for filing an action, risk on return |
| Administrative detention decision | Criminal judgeship of peace | Reasons for detention, conditions for continuation, alternatives |
| Judicial control in the criminal file | Competent criminal judicial authority | Scope of the measure and conditions for lifting it |
| Problem of access to a lawyer at the institution | Administrative/judicial route appropriate to the act | Application records and effect on the defense |
It is important that the document showing that a deportation action has been filed is sent to the relevant administration and that a record of it is kept. In the detention application, the effect of developments in the deportation file on the need to restrict liberty can also be explained separately. Although the two files are connected, the requests must not be mixed up.
How is the risk of imminent removal explained?
When information about an upcoming flight or transfer is received, the source and certainty of the information must be established. A rumor and an official preparation are not the same; but information showing a serious risk must not be ignored either. By assessing the existing action, the notification records and the personal documents on the non-refoulement principle together, an appropriate request is prepared before the competent authorities.
An individual application to the Constitutional Court and a request for an interim measure are not steps to be used indiscriminately in place of the ordinary remedies. The exhaustion of remedies, the time limit, and the link between the current personal risk and the measure requested must be shown separately. It cannot be said that every health or family claim will automatically lead to an interim measure.
How should communication between the family and the lawyer be set up?
When the place where the relative is held changes, the family should pass on this information without delay. The location matters for transferring the file from the previous centre to the new one, obtaining copies of decisions or arranging a lawyer’s meeting. If family members live in different countries, a joint communication channel that the person considers appropriate may be used.
In defining the scope of service, it is clarified whether only the preparation of petitions is wanted, or the follow-up of actions and applications, or the joint review of the criminal and migration files. This distinction makes the fee and the scope of work understandable. When sharing information about the process, the foreign national’s personal data, health information and the privacy of family members are limited to the necessary scope.
Conclusion
After release from prison, liberty and the situation of staying in Türkiye must be assessed through separate decisions. Conducting the deportation action and the administrative detention application before the right authorities and with the necessary documents makes it important for families to obtain legal assistance in good time.
Related articles: Rights of Foreign Prisoners in Türkiye: Execution of Sentences, Release and Family Application Routes; Objection to an Administrative Detention Order: Application to the Criminal Judgeship of Peace, Evidence and Release; Deportation (Deport) Decision.
Frequently Asked Questions
Is a person released from the removal centre when a deportation action is filed?
The action does not end administrative detention by itself. A separate application against the detention decision is needed.
Does an acquittal in the criminal file automatically remove the migration decision?
The reasons for the migration act and its other bases are examined. An acquittal may be an important document; the administrative decision may need to be separately lifted or annulled.
Can the family accept a voluntary return procedure without the foreign national’s consent?
Kinship alone does not take the place of the person’s will. The authority of representation and the relevant procedure are assessed separately.
Can a lawyer be approached before all the documents are available?
Yes. A first assessment can be made with the information available; especially for time-limited acts, waiting until all the papers are complete may not be appropriate.
Sources
- Law No. 5237, the Turkish Penal Code, Art. 59.
- Law No. 6458 on Foreigners and International Protection, Arts. 4, 53–55, 57 and 57/A.
- AYM, Y.T. [Plenary Assembly], B. No: 2016/22418, 30.05.2019.