DEPORT DECISION
WHAT IS A DEPORTATION ORDER?
Deportation is the expulsion of foreigners whose behaviour is deemed dangerous for the general security and public order of the country in which they are located and who exhibit behaviour contrary to the legislation that sets out the order of migration movements. In accordance with the sovereignty of states in international law, it is accepted that states are authorised to decide whether a foreign person can enter the country, stay in the country and be removed from the country.
Under international law, expulsion/deportation is used as a general concept6 that refers to the removal of foreigners from the country and means the removal of the foreigner from the country regardless of whether the foreigner entered the country legally, whether he/she is in the country legally, the duration of his/her stay in the country, his/her legal status, i.e. refugee, asylum seeker, etc. A deportation order is the legal decision that constitutes the basis for the deportation process.
Deportation is regulated in Article 52 of the Law on Foreigners and International Protection as follows: “Foreigners may be deported to their country of origin or transit country or to a third country by a deportation order”.
The expulsion of a foreigner from the borders of the country may be carried out on the basis of a judicial decision taken by a court or an administrative act in various countries.
WHICH AUTHORITY IS AUTHORISED TO TAKE THE DEPORTATION DECISION?
According to paragraph 1 of Article 53 of the Law on Foreigners and International Protection, “The deportation decision is taken by the governorships upon the instruction of the Directorate General or ex officio”, the governorships are authorised to take the deportation decision. Governorships take the deportation decision either ex officio or upon the instruction/request of the Directorate of Migration Management. First of all, the existence of the reasons regulated in Article 54 of the LFIP for the deportation decision and whether there are obstacles originating from Turkey or the destination country that make the removal of the foreigner from the country unlawful will be evaluated. In order to carry out any examination regarding the destination country, it is necessary to determine the country or possible countries to which the foreigner may be sent. The removal of the foreigner to the border of another country is not only limited to the sphere of influence of national institutions and organisations and individuals within the decision-making country, but also constitutes a process consisting of a complex network of relations involving actors of the destination country and international institutions and organisations. In this respect, beyond the mere assertion of the protection of public order by the administrative authority competent to make the decision, many institutions, individuals and communities are now involved in the process and the impact of all these actors on the process is also examined by the competent authority. As a consequence, it can be said that the deportation decision is an administrative act requiring expertise and a public institution specialised in this field is needed. It is regulated that the governorships, which are determined as the competent authority to make the deportation decision, will take the decision ex officio or upon the instruction of the Directorate of Migration Management.
Deportation Decision
It is applied to those who violate the reasons regulated in Article 54 of the LFIP. According to the clear wording of the law, this decision can only be taken by governorships. The evaluation and decision phase of the deportation decision takes a maximum of 48 hours.
Those who will be subject to deportation decision
In the event of one or more of the situations listed in Article 54 of the Law, the governorate is obliged to take a deportation decision, without prejudice to the provisions of Article 55 of the LFIP.
The following are the persons listed in the first paragraph of Article 54 of the LFIP and a deportation decision shall be taken against them.
1)
a) Those who are deemed to be deported within the scope of Article 59 of the Law No. 5237 (art.54/1-a),
b) Those who are managers, members or supporters of a terrorist organisation or a criminal organisation for interest (Art. 54/1-b),
c) Those who use false information and forged documents in the procedures for entry into Turkey, visa and residence permits (Art. 54/1-c),
ç) Those who earn their living through illegitimate means during their stay in Turkey (Article 54/1-ç),
d) Those who pose a threat to public order or public safety or public health (Art. 54/1-d),
e) Those who exceed the visa or visa exemption period by more than ten days or whose visa is cancelled (art.54/1-e),
f) Those whose residence permits have been cancelled (art.54/1-f),
g) Those who have a residence permit but violate the duration of the residence permit for more than ten days without acceptable justification after the expiry of the residence permit (Art. 54/1-g),
ğ) Those found to be working without a work permit (Art. 54/1-ğ),
h) those who violate the provisions on legal entry into or legal exit from Turkey (Art. 54/1-h),
ı) Those who are found to have come to Turkey despite being banned from entering Turkey (Art. 54/1-ı),
k) Those whose international protection application is rejected, those who are excluded from international protection, those whose international protection application is deemed inadmissible, those who withdraw their international protection application, those whose international protection application is deemed withdrawn, those whose international protection status is terminated or cancelled, and those who do not have the right to stay in Turkey according to the other provisions of Law No. 6458 after the last decision made about them (art.54/1-i),
j) Those whose residence permit extension applications are rejected and who do not leave Turkey within ten days (Art. 54/1-j).
k) (Addition: 3/10/2016-KHK-676/36 Art.; Adopted as amended: 1/2/2018-7070/31 Art.) Those who are considered to be associated with terrorist organisations defined by international institutions and organisations
2) (Amended: 3/10/2016-KHK-676/36 Art.; Adopted as amended: 1/2/2018-7070/31 Art.) A deportation decision may be taken at any stage of international protection proceedings for international protection applicants or international protection status holders who are considered to be within the scope of subparagraphs (b), (d) and (k) of the first paragraph of this Article.
Those who will not be subject to deportation orders
Even if they fall within the scope of Article 54, the following foreigners shall not be subject to a deportation order
a) those for whom there is a serious indication that they will be subjected to the death penalty, torture, inhuman or degrading punishment or treatment in the country of deportation (Art. 55/1-a),
b) Those whose travelling is deemed risky due to serious health problems, age and pregnancy (art.55/1-b),
c) Those who cannot be treated in the country of deportation while their treatment for life-threatening diseases is in progress (Art. 55/1-c),
d) Victims of trafficking in human beings who are benefiting from the victim support process (art.55/1-ç),
e) Victims of psychological, physical or sexual violence until their treatment is completed (Article 55/1-d).
The assessment of whether they are within the scope of Article 55 is made separately for each foreigner. In order for these foreigners to stay in the country, they may be granted a humanitarian residence permit in accordance with Article 46 of the LFIP, and they may also be asked to reside at a certain address and to notify in the required manner and periods.
In the event that the aforementioned conditions expire, a deportation decision will be taken against these foreigners.
Judicial remedy against deportation decision
The expulsion decision, together with its reasons, shall be communicated to the foreigner against whom the expulsion decision has been taken or to 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, the appeal procedures and deadlines.
Application to the administrative court and its characteristics:
The foreigner or his/her legal representative or lawyer may appeal against the deportation order 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 expulsion decision of his/her application.
Applications to the court shall be finalised within fifteen days.
The decision of the court shall be final.
Without prejudice to the consent of the foreigner, the foreigner shall not be deported within the period of filing a lawsuit or until the judgement is finalised in case of an application to the court.
Invitation to Leave Turkey
Those who are ordered to be deported shall be given a period of not less than fifteen days and up to thirty days to leave Turkey, provided that it is specified in the deportation order.
Persons who are given time to leave Turkey shall be given an “Exit Permit Certificate” which is not subject to any fees.
Of those who are invited to leave Turkey, an entry ban may not be imposed on those who leave the country within the time limit.
Foreigners who do not leave Turkey in due time shall be taken under administrative detention.
The following persons shall not be invited to leave Turkey and the aforementioned period shall not apply to them
a) Those at risk of escape and disappearance,
b) Those who violate the rules of legal entry or legal exit,
c) Those who use forged documents,
d) Those who try to obtain or are found to have obtained a residence permit with false documents,
e) Those that pose a threat to public order, public safety or public health.
Administrative Detention and Duration of Deportation
Administrative Surveillance Decision
Administrative detention shall be ordered by the governorate for the following persons among those for whom a deportation decision has been taken
Those who are at risk of escape and disappearance,
Those who violate the rules of entry or exit to Turkey,
Those who use forged or false documents,
Those who, without an acceptable excuse, do not leave Turkey within the time allowed for their departure,
Those who pose a threat to public order, public security or public health.
Those subject to administrative detention are held in Removal Centres (RDCs).
The duration of administrative detention at the DGMM cannot exceed six months. However, this period may be extended for a maximum of six months if the deportation proceedings cannot be completed due to the foreigner’s non-cooperation or failure to provide correct information or documents about his/her country.
The governorate shall regularly assess every month whether there is a necessity for the continuation of administrative detention. If deemed necessary, the thirty-day period shall not be waited.
Those whose administrative detention is deemed to be unnecessary shall be immediately notified to the Ministry. If the Ministry deems it appropriate, the administrative detention order on the foreigner shall be lifted. Alternative obligations to administrative detention shall be imposed on these foreigners in accordance with Article 57/A of the Law.
Foreigners listed in the second paragraph of Article 57 of the LFIP No. 6458 or foreigners whose administrative detention is terminated may be subject to the following alternative obligations to administrative detention
A) Residing at a specific address
B) Notification
C) Family-based repatriation
Ç) Return counselling
D) Voluntarily taking part in services in the public interest
E) Collateral
F) Electronic monitoring
If the alien is subjected to one or more of the alternatives to administrative detention, this period may not exceed 24 months.
Foreigners who do not comply with alternative measures to administrative detention may be placed under administrative detention.
The foreigner subjected to electronic monitoring or his/her legal representative or lawyer may apply to the Criminal Judge of Peace against this decision. The application shall not suspend the administrative obligation to which the foreigner is subjected. The Criminal Judge of Peace shall finalise the examination within five days. The decision of the Criminal Judge of Peace is final.
Voluntary Return
Among irregular migrants for whom a deportation decision has been taken and who wish to voluntarily return to their country of origin, in-kind or in-cash support may be provided to persons deemed appropriate by the Directorate General.
Studies on the voluntary return of irregular migrants can be carried out in cooperation with international organisations, public institutions and organisations and non-governmental organisations.
Judicial Procedure Against Administrative Detention Decision
The decision on administrative detention, the extension of the period of administrative detention and the results of the regular monthly reviews shall be notified to the foreigner or his/her legal representative or lawyer, together with the reasons thereof. At the same time, if the person placed under administrative detention is not represented by a lawyer, he or his legal representative shall be informed of the outcome of the decision, the procedures and deadlines for appeal.
Application to the criminal magistrate:
The person placed under administrative detention or his or her legal representative or lawyer may appeal against the administrative detention decision to a criminal judge of peace.
The application does not stop the administrative detention.
If the petition is submitted to the administration, it shall be immediately forwarded to the authorised criminal judge of peace.
The criminal judge of peace shall finalise the examination within five days.
The decision of the criminal judge of peace shall be final.
The person placed under administrative detention or his/her legal representative or lawyer may apply to the criminal judge of peace again claiming that the conditions for administrative detention have disappeared or changed.
Of those who apply for judicial remedy against the administrative detention procedure, those who do not have the means to cover the attorney’s fees shall, upon their request, be provided with attorney services in accordance with the provisions of the Attorneyship Law dated 19/3/1969 and numbered 1136.
Fulfilment of the Deportation Order
Foreigners in removal centres shall be taken to border gates by law enforcement units.
Foreigners who will be deported without the need to be transferred to removal centres shall be taken to the border gates by law enforcement units under the coordination of the provincial organisation of the Directorate General.
The Directorate General may also cooperate with international organisations, relevant country authorities and non-governmental organisations in relation to deportation procedures.
Travelling Expenses of the Foreigner to be Deported
Passports or other documents of foreigners may be kept until their deportation and their tickets may be converted into cash to be used in deportation procedures.
If the available money of the foreigner is sufficient to cover the travelling expenses, all of the travelling expenses shall be covered by the foreigner and the remaining amount shall be left to the foreigner. If the foreigner has no money, the travelling expenses are covered by the General Directorate. However, if the foreigner has some money and his/her current money is not enough to cover the entire travel expenses;
1) The travel expenses shall be covered by the General Directorate and the foreigner’s available money shall be left to him/her in the amount sufficient to meet the basic needs of the foreigners to be deported, which is determined by the General Directorate at the beginning of each financial year, and the remaining amount shall be recorded as income to the Treasury against the travel expenses.
2) If the foreigner’s available funds are below the amount sufficient to meet basic needs, the entire travel expenses shall be covered by the General Directorate and the available funds shall be left to the foreigner.
Foreigners may not be allowed to enter Turkey unless the deportation travel expenses are reimbursed. If no other prohibition has been imposed on the foreigner, the restriction shall be lifted on condition that he/she pays the expenses and shall be allowed to enter our country within the framework of visa general provisions.
The costs incurred due to deportation are a public receivable pursuant to the first article of the Law No. 6183 and will be collected by the finance offices. Pursuant to Article 104 of the Law No. 6183 on the Procedure for the Collection of Public Receivables, the statute of limitations will not run for this receivable since the debtor is in the foreign country. For this reason, there is no obstacle to enter an indefinite restriction on the foreigner.
Real or legal persons are obliged to pay the deportation expenses of foreigners whose stay or return they guarantee.The provisions of paragraph 5 of Article 23 and Article 9 of the International Labour Force Law No. 6735 shall apply to the obligations of employers or employer representatives who employ foreigners without a work permit regarding the deportation procedures of the foreigner. Within the framework of this provision, the employer or employer’s representative who employs a foreigner without a work permit shall be fined 6 thousand Turkish Liras for each foreigner. The employer or the employer’s representative is obliged to cover the accommodation expenses of the foreigner who does not have a work permit and his/her spouse and children, if any, the necessary expenses for their return to their country and, if necessary, medical expenses. In the event that these costs, expenses and expenditures are covered from the budget of the General Directorate of Migration Management, the amounts paid pursuant to this article shall be collected from the employer or employer’s representative in accordance with the Law on the Procedure for Collection of Public Receivables dated 21/7/1953 and numbered 6183. The procedures and principles regarding the implementation of this paragraph shall be jointly determined by the Ministry of Interior and the Ministry.
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