AN ASSESSMENT OF DEPORTATION DECISIONS WITHIN THE FRAMEWORK OF LAW FOREIGNERS AND INTERNATIONAL PROTECTION
While deportation decisions are “administrative in nature,” they differ from other administrative procedures in terms of their consequences. According to Article 53/1 of the Law on Foreigners and International Protection (LFIP), deportation decisions are issued “…by the governorates upon the instruction of the General Directorate or ex officio…” As can be seen, governorates are authorized to issue deportation decisions ex officio or upon the instruction of the General Directorate of Migration Management.
Article 54 of the LFIP stipulates the foreigners for whom deportation decisions may be issued, and the relevant provision specifies who these individuals are.
“(1) A deportation decision shall be made regarding the following foreigners:
a) Those deemed to be in need of deportation under Article 59 of Law No. 5237
b) Those who are leaders, members, or supporters of terrorist organizations or leaders, members, or supporters of criminal organizations for profit
c) Those who use false information and forged documents in procedures for entry, visa, and residence permits to Turkey
ç) Those who earn their living through illegitimate means during their stay in Turkey
d) Those who pose a threat to public order, public security, or public health
e) Those who exceed the visa or visa exemption period by more than ten days, or whose visas have been canceled
f) Those whose residence permits have been canceled
g) Those who hold a residence permit but exceed its duration by more than ten days without an acceptable justification since its expiration
ğ) Those who are found to be working without a work permit
h) Those who violate the provisions for legal entry into or exit from Turkey, or who attempt to violate these provisions
ı) Those who are found to have entered Turkey despite an entry ban. Those who are not eligible to remain in Turkey pursuant to other provisions of this Law after the final decision regarding them:
i) Those whose international protection application has been rejected, excluded from international protection, whose application has been deemed inadmissible, who have withdrawn their application, whose application has been deemed withdrawn, whose international protection status has expired or been cancelled;
j) Those whose residence permit extension applications have been rejected, who have not departed Turkey within ten days;
k) Those who are considered to have links to terrorist organizations defined by international institutions and organizations.
As can be understood from general grounds such as public order or public security, the administration is granted broad discretion in making deportation decisions. It should be noted that the administration must justify such broad concepts in each specific case and issue a deportation decision in accordance with the law. Indeed, the administration has an obligation to justify deportation decisions. The decision must clearly state the violations of public order or public security in each specific case. Otherwise, the administration may arbitrarily exercise its discretionary power, potentially violating the foreigner’s interests.
Article 53/3 of the YUKK (Higher Education Law) contains a specific provision regarding legal remedies available in the event of deportation decisions issued by the administration. In this context, Article 53/3 of the YUKK states, “The foreigner or their legal representative or lawyer may appeal to the administrative court against the deportation decision within seven days of notification of the decision…” and provides for a seven-day period for filing a lawsuit. In this regard, the European Court of Human Rights (ECtHR) emphasizes that each case must be evaluated on a case-by-case basis. In determining whether the right to an effective remedy is violated, processes such as the foreigner’s meeting with a lawyer, the collection of evidence, and the preparation of the petition must be evaluated, and the reasonableness of the time allowed must be assessed accordingly. The Constitutional Court, in its assessment of whether the right of access has been violated, takes into account the criteria set by the ECtHR and renders its decision on the specific dispute. Pursuant to Article 53/3 of the YUKK (Higher Education Law), the court’s decision on this matter is final.
According to Article 125 of the Constitution and Article 7 of the Administrative Procedure Law, the period for filing a lawsuit against administrative acts begins with written notification. Regarding deportation decisions, Article 53/2 of the YUKK stipulates that “the decision, together with the reasons, shall be notified to the foreigner against whom the deportation decision has been made, or to their legal representative or lawyer,” stipulating that written notification is required. Following written notification, a lawsuit can be filed with the administrative court against the deportation decision. It should be noted that the deportation decision must be notified to the foreigner in a language they understand, clearly stating the reasons, appeal procedures, and deadlines. Deportation decisions issued without justification in a language the foreigner understands are unlawful.
Ankara Regional Administrative Court, 10th Administrative Litigation Chamber, Date: 31.10.2017, Decision No: 2017/985;
“The Ankara Regional Administrative Court accepted the existence of improper notification due to the fact that the foreigner against whom the deportation decision was issued lacks any documentation demonstrating that he is literate in Turkish, nor does he have a written statement demonstrating that he reads and understands Turkish.”[2]
On the other hand, pursuant to Article 53/3 of the YUKK (Higher Education Law), foreigners cannot be deported within the legal period, without the foreigner’s consent, or until the conclusion of the trial if a legal action is taken. More clearly, deportation proceedings are automatically suspended, without the foreigner’s consent, without the need to request a stay of execution through an appeal to the administrative court.
Furthermore, pursuant to Article 52/1 of the YUKK, foreigners subject to a deportation order are removed from Turkey and sent to their country of origin, transit country, or third country. Deported foreigners are generally also subject to an entry ban.
Constitutional Court, 10.05.2017, Decision No: 2015/18582;
“The applicant was caught attempting to cross the Turkish border illegally, and a ban on entry was imposed on the grounds that he posed a threat to public safety. His request for international protection was rejected, and a deportation order was issued. The applicant claimed that if deported, he could be tortured or even killed if returned to his country due to his religious and political views. The administrative court rejected the appeal without conducting the necessary investigation and review into the existence of these allegations. In this case, the Constitutional Court determined that the prohibition of ill-treatment had been violated and ordered a retrial.”[3]
[1] In this study, the following academic article was used: Büyük, Fatma Betül. “6458 SAYILI YABANCILAR VE ULUSLARARASI KORUMA KANUNU MADDE 54/1-D UYARINCA SINIR DIŞI ETME KARARLARININ DEĞERLENDİRİLMESİ”. Gaziantep Üniversitesi Hukuk Fakültesi Dergisi 2 (Aralık 2024), 49-61.
[2] Ankara Regional Administrative Court, 10th Administrative Litigation Chamber, Date: 31.10.2017, Decision No: 2017/985.
[3] Constitutional Court, 10.05.2017, Decision No: 2015/18582.