What are the alternative obligations to administrative detention?

What Is Administrative Detention?

Administrative detention is a legal measure applied to foreign nationals who are subject to a deportation order, based on concerns such as public security, public order, counter-terrorism, and the prevention of irregular migration. It is a preventive form of deprivation of liberty that is applied under specific conditions and for a limited period of time. It differs from police custody or criminal detention, which fall under the scope of criminal law.

Rather than being punitive, administrative detention is intended to monitor and restrict the movements of a foreign national and minimize potential risks to public security. While the individual is partially deprived of liberty, the purpose is not punishment but protection of public interest.

Legal Basis for Administrative Detention in Turkey

The legal grounds for administrative detention and its alternatives are defined in:

Articles 57 and 58 of the Law No. 6458 on Foreigners and International Protection (LFIP)
Articles 59 and 61 of the Regulation on the Implementation of the LFIP

According to these provisions, administrative detention may be imposed on foreign nationals who:

Are at risk of absconding or disappearing
Violate the rules for entering or exiting Turkey
Use forged or false documents
Fail to leave Turkey within the legally prescribed time without a valid excuse
Pose a threat to public order, public security, or public health

Administrative Detention in International Law

The concept of administrative detention is also recognized under international law:

UN Convention Against Torture (CAT) and its optional protocols: Holding an individual without consent in a public or private facility may constitute detention (Art. 4/11).
Universal Declaration of Human Rights (Art. 9): No one shall be subjected to arbitrary arrest, detention, or exile.
European Convention on Human Rights (ECHR, Art. 5): Everyone, whether citizen or foreigner, has the right to liberty and security. However, there are exceptions to this right.

Under Article 5/1(f) of the ECHR, deprivation of liberty may be lawful in cases where:

The individual has entered the country unlawfully,
A deportation or extradition order has been issued,
The detention procedure complies with national law.

Procedural Safeguards

Under the European Convention on Human Rights (ECHR) and other international instruments, individuals subject to administrative detention must be afforded the following safeguards:

(Article 5/2): Individuals must be informed promptly and in a language they understand of the reasons for their arrest and detention.
(Article 5/4): Every detained person has the right to apply to a court to challenge the lawfulness of the detention, and to be released if the detention is found to be unlawful.

Alternatives to Administrative Detention

Administrative detention is not intended to be the primary or default measure. Less restrictive alternative obligations may be imposed, such as:

Requirement to reside at a specific address
Obligation to report regularly to the Directorate General of Migration Management (DGMM)
Financial guarantee or bail
Electronic monitoring
Family sponsorship or guarantor system

These alternatives limit individual freedoms to a lesser extent while still serving the interest of public security.

Duration of Administrative Detention

Administrative detention is a temporary and exceptional measure applied to a foreign national subject to a deportation order, typically based on reasons such as public order, public security, or public health. Its duration and implementation are defined as follows:

Time Limitations:

The initial period of administrative detention is up to six months.
If necessary, this may be extended once for an additional six months.
The maximum total duration of detention shall not exceed one year.

These limits are designed to prevent prolonged or indefinite deprivation of liberty.

Review and Lifting of the Measure:

The provincial governor’s office must review the detention order monthly.
If it is determined that detention is no longer necessary, the measure must be lifted.
This ensures compliance with the principles of proportionality and necessity.

Notification and Right to Appeal:

The decision of administrative detention must be notified in writing to the foreign national and, where applicable, to their legal representative or lawyer.
The decision must be clearly explained, including its legal consequences.
The individual has the right to appeal the decision before a competent court.

These safeguards ensure that while administrative detention serves public interest objectives, it is implemented in line with fundamental rights and international human rights standards.

Who Issues the Administrative Detention Order?

Under Law No. 6458 on Foreigners and International Protection, the administrative detention order is issued as follows:

• Competent Authority:

The decision to impose administrative detention is made by the Provincial Governorate.
It may be issued concurrently with or subsequent to a deportation decision.

• Legal Grounds for the Decision:

The Provincial Governorate may impose administrative detention in the following cases:

If the foreign national fails to leave Turkey within the period granted.
If the individual poses a threat to public order, public security, or public health.

• Transfer to Removal Centers:

Once the decision is made, the foreign national must be transferred to a Removal Center within 48 hours by the law enforcement authorities who carried out the apprehension.

These practices aim to uphold border security, public order, and control of irregular migration, and must be implemented in accordance with national and international legal standards.

Challenging the Administrative Detention Order (Lifting the Detention)

Foreign nationals subject to an administrative detention order have the right to judicial review under Law No. 6458. This process is designed to ensure the detention measure complies with legal safeguards and protects the individual’s fundamental rights.

• Right to Appeal:

The foreign national may submit a written petition to the Criminal Judgeship of Peace to object to the administrative detention decision.
The application may be filed by the foreigner, their legal representative, or lawyer.

• Appeal Procedure:

The petition is forwarded to the Criminal Judge of Peace.
The judge must review and finalize the objection within 5 days.
The court will assess whether the detention is lawful and justified.

• Effect of the Application:

Filing an appeal does not automatically suspend the enforcement of the detention.
The foreign national may remain in detention during the review process.

• Finality of the Decision:

The decision of the Criminal Judgeship of Peace is final.
No further judicial remedies are available against the ruling.

• Right to Reapply:

If the initial appeal is rejected, a new objection may be filed if there is a significant change in circumstances.
The new application must demonstrate that the legal or factual grounds for detention no longer exist.

These procedural rules are intended to ensure that administrative detention is carried out lawfully, respects fundamental human rights, and remains subject to judicial oversight, thereby preventing arbitrary practices by public authorities.

What Are the Alternatives to Administrative Detention?

Alternatives to administrative detention are measures that interfere less with the fundamental rights and freedoms of migrants and impose lower fiscal burdens on the state. These measures are particularly applied after an administrative detention order has been lifted, and aim to uphold public security and order.

Legal and International Basis for Alternative Measures

Although there is no universally binding definition or mandatory international treaty governing alternatives to administrative detention, their application is strongly encouraged in various United Nations documents:

UN General Assembly Resolutions A/RES/63/184, A/RES/64/166, and A/RES/67/172 call on States to respect the human rights and dignity of migrants, and to implement alternatives to detention wherever possible.
The UN Human Rights Committee has emphasized that administrative detention should be necessary, reasonable, and proportionate, and that less restrictive measures such as reporting obligations, financial guarantees, or travel restrictions should be considered first.
The UN High Commissioner for Refugees (UNHCR) Executive Committee has criticized prolonged detention, especially of children and vulnerable groups, and has recommended the broader use of alternative measures.

Types of Alternative Obligations

According to the Regulation on Alternative Obligations to Administrative Detention, published in the Official Gazette on 14 September 2022, the following obligations may be imposed on foreign nationals once the detention order is lifted:

Residence at a Specific Address:
The individual must reside at the address registered with the Provincial Directorate of Migration Management.
Regular Reporting (Notification):
The individual must report at designated intervals to the migration office using methods such as fingerprint verification, voice recognition, or wet signature.
Family-Based Return:
Until the deportation process is completed, the individual may reside with first- or second-degree relatives legally residing in Turkey.
Return Counselling:
Foreigners requesting voluntary return may receive in-kind or financial assistance as part of reintegration support.
Voluntary Public Service:
While implementation details are pending, this measure aims to involve foreigners in non-mandatory public benefit activities.
Financial Guarantee (Bond):
A foreigner may pay a financial security deposit to remain free of detention during immigration procedures.
Electronic Monitoring:
Foreigners may be monitored using mobile applications or electronic ankle bracelets. However, individuals maintain the right to appeal such measures before the Criminal Judgeship of Peace.

The maximum duration for applying these alternative obligations is 24 months, as per Article 57(2) of Law No. 6458.

Purpose and Legal Framework

These obligations are intended to substitute administrative detention with less restrictive measures, ensuring that the individual’s right to liberty is minimally interfered with, while still allowing the state to fulfill its migration control responsibilities.

Though they resemble security measures under the Turkish Penal Code, these obligations are administrative in nature and fall under a distinct legal regime specific to migration law.

Who May Be Subject to Alternative Obligations to Administrative Detention?

Alternative obligations may be imposed on certain foreign nationals to ensure state oversight until deportation procedures are finalized. These measures are particularly applied in situations where administrative detention has ended or was never initiated.

Applicable Individuals:

Foreign nationals whose administrative detention has expired:
If deemed necessary for public order or safety, alternative obligations may be imposed.
Those not placed under detention but deemed eligible by authorities:
Evaluated by the Directorate General of Migration Management or Provincial Governorships.
Individuals whose detention is lifted by official order (DGMM or Governor):
In such cases, an alternative measure may be issued to maintain supervision.
Individuals released from detention by court decision:
To ensure a secure reintegration process, judges may permit alternative measures in lieu of detention.

Who Cannot Be Subject to Alternative Obligations?

Certain vulnerable individuals are exempt from both detention and alternative obligations due to health risks, humanitarian considerations, or protection status.

Exempt Individuals:

Persons at risk of persecution, torture, or inhuman treatment in their country of return.
Those with severe health conditions, elderly persons, or pregnant women for whom travel may pose medical risks.
Individuals undergoing treatment for life-threatening illnesses.
Victims of human trafficking who are currently receiving support services.
Victims of psychological, physical, or sexual violence, until the conclusion of their recovery process.

These exemptions reflect Turkey’s commitment to protecting vulnerable groups and adhering to international legal obligations.

Objection to Alternative Measures

Foreigners have the right to appeal against alternative measures imposed after the end of administrative detention.

Appeal Process:

The individual or their legal representative may file an objection with the Criminal Judgeship of Peace.
Particularly intrusive measures, such as electronic monitoring, may be challenged on human rights grounds.
The judge must evaluate the application and reach a decision within 5 days.
The judge’s decision is final and not subject to further appeal.

This process forms part of the judicial oversight mechanism to protect fundamental rights.

Non-Compliance with Alternative Measures

If a foreign national fails to comply with imposed alternative obligations, the authorities may reimpose administrative detention.

Consequences:

Non-compliance results in the foreigner being removed from the monitoring system and placed back under detention.
This sanction is reserved for individuals who are considered to pose a threat to public order or public safety.

Maintaining compliance is crucial for:

Preserving the individual’s current legal status,
Ensuring continuity of due process,
Avoiding escalation to more restrictive measures.