De Facto Administrative Detention of Children in Removal Centres: The Best Interests of the Child, Family Unity and Alternative Measures

For a significant proportion of the children staying in removal centres there is no separate administrative detention decision. The child is in the centre because he or she is with the mother or father in respect of whom a decision was taken. This situation — not treated in law as "detention", yet one the child cannot in fact leave — raises the question whether the child is being deprived of liberty. This article examines the legal character of that factual situation and the place of the best interests of the child in the assessment.

What the problem looks like in practice

Visit Report No. 2026/45 of the Human Rights and Equality Institution of Türkiye (TİHEK) on the Istanbul Çatalca Removal Centre — adopted by Board decision No. 2026/778 of 16 July 2026 and based on a visit of 6–7 October 2025 — found that 44 children were staying in the centre with their mothers and that there were no unaccompanied children.

According to the report, pre-school activities are organised for the 3–6 age group and activities conducted by staff who are graduates of child development programmes for the 6–12 age group. Among its recommendations, TİHEK proposed that measures be taken to ensure the continuity of education for children in the 6–12 age group. That recommendation shows an institutional finding that the activities carried out in the centre do not take the place of formal schooling.

If there is no decision about the child, is there no detention?

The formal legal picture is this: the administrative detention decision concerns the mother, not the child. But whether there is a deprivation of liberty is determined not by whom the decision names, but by the situation the person is actually in. If a child cannot leave a closed facility of his or her own will, the absence of a written decision about the child does not in law turn that situation into something else.

At this point three options arise, each with its own problem:

• Keeping the child in the centre with the mother: family unity is preserved, but the child is de facto deprived of liberty and the right to education is interrupted.
• Separating the child from the mother and taking the child into protection: the deprivation of liberty ends, but family unity is broken — in most situations a graver interference with the best interests of the child.
• Applying an alternative obligation to mother and child together: both drawbacks disappear.

The third option is the path the legislation itself indicates. The source of the problem is that the first two options are presented as a dilemma, whereas in law a third way exists.

The statutory bases

The discussion should begin with Article 59 of Law No. 6458. In listing the services to be provided in removal centres, that article devotes two provisions specifically to children:

• Article 59(1)(ç): "The best interests of children shall be observed; families shall be accommodated in separate places."
• Article 59(1)(d): "The Ministry of National Education shall take the necessary measures to ensure that children benefit from education and training."

For our purposes these two provisions produce a two-sided result, and both sides should be stated openly.

The first, which honesty requires stating: the legislature envisaged that families — and therefore children — may be present in removal centres. The phrase "families shall be accommodated in separate places" is not a provision absolutely prohibiting the presence of children in a centre; on the contrary, it presupposes that situation and regulates its conditions. An argument that children may under no circumstances be present in a removal centre therefore cannot be supported by the wording of the statute. The debate must be built not on an absolute prohibition but on proportionality and on the priority of alternative measures.

The second: Article 59(1)(ç) makes observing the best interests of the child a duty imposed on the centre administration by statute. This is not a recommendation left to discretion. Article 59(1)(d), for its part, makes taking the necessary measures for children to benefit from education and training a duty of the Ministry of National Education. Accordingly, where a school-age child in a centre cannot access education, this is not merely a lack of facilities but a failure by a public authority to discharge a duty assigned to it by statute. TİHEK's recommendation on the continuity of education for the 6–12 age group points precisely to what this provision requires.

Adding Article 57/A(3) completes the picture: it is mandatory to impose one or more alternative obligations on foreign nationals who fall within Article 57(2) but are not placed in administrative detention. In other words, for a mother accompanied by a child, refraining from administrative detention does not mean that the person is left unsupervised; in that situation the statute requires an alternative obligation to be applied. The dilemma of "detention or nothing" does not exist in the system the statute establishes.

The criteria in the Regulation

The Regulation on Obligations Alternative to Administrative Detention (Official Gazette of 14 September 2022, No. 31953) sets out this third path in detail.

Article 5(4) of the Regulation provides that, in assessing whether a foreign national is to be made subject to obligations alternative to administrative detention, the balance between the person's right to liberty and security, family unity and the best interests of the child on the one hand, and public order, public health and public security on the other, shall be observed. Here the best interests of the child are not an area in which discretion may be exercised freely, but a criterion that must necessarily be weighed in the assessment.

Article 7(1) of the Regulation provides that the assessment shall be individual and that characteristics such as whether the person is an individual with special needs or in a vulnerable situation, as well as age, state of health, sex and family situation, shall be taken into account.

Article 4(o) of the Regulation includes within the definition of "person with special needs" not only unaccompanied children but also a lone mother or father accompanied by a child. That definition is decisive for our subject: a lone mother present with her child is, according to the legislation's own classification, a person with special needs, and under Article 7(1) this must be taken into account in the assessment.

Article 11 of the Regulation governs the family-based return obligation: at his or her request, the foreign national may stay with first- or second-degree relatives lawfully present in Türkiye until the deportation decision is enforced. This obligation cannot be applied without the foreign national's request, and written consent must be obtained from the relatives with whom the person will stay.

Read together, these provisions lead to the following conclusion: when an administrative detention decision is taken in respect of a mother accompanied by a child, the best interests of the child and the mother's status as a person with special needs must have been assessed. Where that assessment does not appear in the decision, it provides the basis for an argument of breach of Articles 5(4) and 7(1).

The right to education

The longer the child remains in the centre, the graver the problem in terms of the right to education. In addition to Article 59(1)(d) of Law No. 6458 cited above, Article 42 of the Constitution of the Republic of Türkiye provides that no one may be deprived of the right to education and instruction. The United Nations Convention on the Rights of the Child likewise obliges States Parties to recognise the child's right to education and provides in Article 3 that in all actions concerning children the best interests of the child shall be a primary consideration.

TİHEK's recommendation on ensuring the continuity of education for children in the 6–12 age group shows that the activities currently available in the centre do not meet that obligation. Two separate conclusions follow. First, as the duration of administrative detention increases, so does the gravity of the interference with the right to education; duration is therefore an independent element of the proportionality assessment. Second, the inability to provide education in the centre constitutes a concrete reason supporting the application of alternative obligations.

The Constitutional Court's criteria

The Constitutional Court's case law on conditions in removal centres is instructive for children too. In Y.K. (Application No. 2016/14347, 2 June 2020) the Court stated that removal centres, while providing accommodation for and keeping under control foreign nationals whose deportation has been decided, are institutions operating with a human-centred approach, and that they must provide their services on the basis of protecting the right to life of those held there and strengthening them socially and psychologically. That criterion is directly applicable to the assessment of centre conditions as regards children.

In Abdulkadir Yapuquan (Application No. 2016/35009, 2 May 2019) the Court treated the repetition of statutory grounds in the abstract, without reasoning, in an administrative detention decision as an element leading to a violation of the right to personal liberty and security. Where a decision concerning a person accompanied by a child contains no assessment whatsoever of the child's situation, this amounts to reasoning that is weaker still by that standard.

Assessment and proposals

The existing legislation already contains criteria that allow alternative obligations to be applied to foreign nationals accompanied by children. The problem stems less from a lack of rules than from those criteria not being visibly applied in decisions. Even so, the following improvements at the level of legislation would be appropriate:

• making it mandatory, where an administrative detention decision is taken in respect of a foreign national accompanied by a child, for the decision to contain a separate section assessing the best interests of the child;
• registering children who are in fact present in the centre although no decision has been taken about them, and carrying out periodic assessments in respect of those children as well;
• separately limiting the period for which school-age children stay in the centre, having regard to access to formal education;
• treating family-based return and residence at a designated address as the obligations to be considered first for foreign nationals accompanied by children.

The principle of the best interests of the child is not a rule that determines the outcome on its own; but it is a criterion that must be weighed. Where it has not been weighed at all in a decision, the lawfulness of that decision becomes open to challenge.

Sources

• Law No. 6458 on Foreigners and International Protection (Official Gazette of 11 April 2013, No. 28615), Articles 57, 57/A and 59(1)(ç) and (d).
• Regulation on Obligations Alternative to Administrative Detention (Official Gazette of 14 September 2022, No. 31953), Articles 4, 5, 7 and 11.
• Human Rights and Equality Institution of Türkiye, Istanbul Çatalca Removal Centre Visit Report, Report No. 2026/45, Decision No. 2026/778 of 16 July 2026.
• Constitutional Court, Second Section, Y.K., Application No. 2016/14347, 2 June 2020.
• Constitutional Court, Plenary, Abdulkadir Yapuquan, Application No. 2016/35009, 2 May 2019.
• Constitution of the Republic of Türkiye, Article 42; United Nations Convention on the Rights of the Child, Articles 3 and 28.

This article is based on the legislation in force as at 11 September 2026. It is intended as general information and does not constitute legal advice; in a specific case it is advisable to consult a lawyer.