The "Voluntary Return" Form Signed in a Removal Centre: Free Will, Informed Consent and Non-Refoulement

A voluntary return form signed by a foreign national held in a removal centre changes the course of the file at a stroke: proceedings brought against the deportation decision risk becoming devoid of purpose, the person's departure is accelerated, and as far as the administration is concerned the process is over. These grave consequences turn the question of whether the will behind the document was genuinely free into a legal problem. This article examines the conditions under which the consent of a person deprived of liberty has legal value, and whether that consent removes the State's obligation of non-refoulement.

The official definition: four elements required together

According to the official definition of the Presidency of Migration Management, voluntary return means persons returning to their countries voluntarily, safely, with dignity and in an orderly manner within designated programmes. Where these four elements are not all present together, there is no voluntary return.

The structure of the definition matters legally, because "voluntariness" alone was not treated as sufficient: safety and dignity were made part of the same definition. The consequence is this: a person's signature does not also prove that the return is safe and dignified. A person may have signed knowing full well that the place to which they will return is not safe for them, simply because they saw no other way out. Such a signature may formally satisfy the first element of the definition, but it does not satisfy the second and third.

The consent of a person deprived of liberty

The legal value of consent cannot be assessed independently of the setting in which it is given. Where a person is held in a closed facility for an indefinite period and signing is presented as the only known way out, it cannot be said that the resulting will was formed freely. This is not a novel idea in our law; the general principles on defects of will point the same way.

The Plenary of the Constitutional Court addressed this question directly in Abdulkadir Yapuquan (Application No. 2016/35009, 2 May 2019). In that case the administration produced documents purporting to show that, after the twelfth month, when the administrative detention decision had been lifted, the applicant remained in the removal centre of his own will. The Court rejected that defence on three separate grounds:

First, the reliability of the document. In the Court's view, the fact that the applicant had refused to sign the record drawn up by the removal centre gave rise to doubt and uncertainty as to whether its content reflected the truth. A record drawn up unilaterally by the administration and not signed by the person concerned was not regarded as sufficient proof of consent.

Second, a will contradicted by conduct. The applicant's applications to the European Court of Human Rights and to the Constitutional Court seeking release meant that any will to be held with consent had ceased to exist. In other words, a person's subsequent conduct may rebut consent presumed to have been given earlier.

Third, and most importantly, whether such consent can have legal effect at all. The Court held that preventing an individual from waiving his or her liberty by his or her own will is among the State's positive obligations, and concluded that no legal value can be attributed to a person's consent to being deprived of liberty. The Court also stated that a passive attitude by the public authorities, when the time comes to act in order to give effect to a legal norm, is incompatible with that positive obligation.

Although these findings were made in the context of consent to continued administrative detention, the logic they carry can be applied to a declaration of voluntary return. The assumption that a statement made by a person deprived of liberty in order to bring that deprivation to an end rests on free will is not, within the framework established by that judgment, one that can be accepted as self-evident.

Minimum conditions of informed consent

For consent to be valid, the person must know what they are consenting to. In the removal centre setting this requires at least the following:

• Conveying the document in a comprehensible language. Signing a form prepared in a language the person cannot read does not show consent to its content. The notification record must contain the interpreter's name, language and signature.
• Informing the person of the consequences. The person must know what effect the signature has on any pending proceedings, whether it gives rise to a re-entry ban, and whether the return can be reversed.
• Informing the person of the alternatives. The person must be told not only the consequences of signing but also the consequences of not signing. A person unaware of the existence of obligations alternative to administrative detention and of the possibility of applying for international protection cannot be said to have made a genuine choice.
• Time to reflect and the absence of pressure. The shortness of the interval between the moment the signature is taken and the moment of departure from the country is a fact to be taken into account when assessing an allegation of pressure.
• The possibility of legal assistance. Even though the presence of a lawyer is not required by law, whether the person had the opportunity to consult a lawyer must be taken into account in assessing whether the consent was informed.

Does the signature remove the obligation of non-refoulement?

This is the most critical point in the debate. Article 4 of Law No. 6458 provides: "No one within the scope of this Law shall be sent to a place where he or she will be subjected to torture, inhuman or degrading punishment or treatment, or where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion."

The wording deserves attention. The legislature did not construct a right along the lines of "no one may declare that he or she does not wish to be sent"; it said directly that the person shall not be sent. The prohibition is not a protection dependent on the individual's request but an obligation imposed on the State. The addressee of the principle is not the foreign national but the State. A foreign national's statement that "I want to return" therefore does not by itself extinguish the State's duty to examine whether there is a risk in the place to which the person would be sent. The contrary view would turn the principle into a waivable right, which is incompatible with the wording of the provision.

Article 55 provides support in the same direction. Under that article, no deportation decision shall be taken — even in respect of persons falling within Article 54 — concerning: those in respect of whom there are serious indications that they would be subjected to the death penalty, torture or inhuman or degrading punishment or treatment in the country of destination; those whose travel is considered risky on account of serious health problems, age or pregnancy; those who cannot receive treatment in the destination country for a life-threatening illness; victims of human trafficking benefiting from the victim support process; and victims of psychological, physical or sexual violence, until their treatment is completed. The second paragraph of the article expressly provides that these assessments are to be made "individually for each person".

The consequence is this: since no deportation decision may lawfully be taken in respect of a person falling within Article 55, a voluntary return form signed by such a person does not make a decision that could not be taken suddenly capable of being taken. Indeed, Article 6(2) of the Regulation on Obligations Alternative to Administrative Detention, by providing that foreign nationals within the scope of Article 55 may not be made subject to alternative obligations, shows that these persons are kept outside the system altogether.

The Regulation on Obligations Alternative to Administrative Detention provides further support for this reading. Article 12(3), which governs return counselling, expressly states that in the acts and procedures carried out in respect of foreign nationals whose departure to their own country or to a third country is to be arranged in this framework, the provisions of Article 4 of the Law are reserved. In other words, operating a mechanism that encourages voluntary return does not disapply the principle of non-refoulement. The fourth paragraph of the same article requires that the rights and obligations of foreign nationals in this category be notified to them in writing.

As to the burden of proof, the following distinction should be drawn: the person is expected to particularise the risk alleged in the country of origin; but once the allegation has been made, the duty to assess whether the place of destination is safe, and to document that assessment, lies with the administration. A signed form does not take the place of that assessment.

What to examine in practice

Where the validity of a declaration of voluntary return is in issue in a file, the following matters should be examined:

• in which language the form was prepared and whether it was translated; whether the notification record contains information about an interpreter;
• the interval between the date the signature was taken and the date the person entered the removal centre;
• the interval between the date the signature was taken and the date of departure from the country;
• whether the person had pending proceedings or an application for international protection at that date;
• whether an assessment was carried out in respect of the person under the principle of non-refoulement and, if so, whether it is documented in the file;
• whether the person is in a situation falling within Article 55 (health, pregnancy, violence or human trafficking victimisation) and whether this was separately assessed;
• whether the person's conduct after signing (applications, objections, complaints) contradicts the declaration.

Conclusion

Voluntary return is, on the definition used by the legislation and by the administration itself, an institution that requires voluntariness, safety, dignity and orderliness to be present together. A signature obtained in a removal centre creates a presumption about only one of those elements, and even then a contestable one. The Constitutional Court's finding that no legal value can be attributed to consent to deprivation of liberty should be the starting point for assessment in this field. As regards non-refoulement the conclusion is clear: a signature does not bring the State's duty of examination to an end. To improve the reliability of practice, it would be appropriate to lay down expressly the minimum procedural safeguards on interpretation, information and time to reflect when declarations of voluntary return are taken.

Sources

• Law No. 6458 on Foreigners and International Protection (Official Gazette of 11 April 2013, No. 28615), Articles 4, 55 and 57/A.
• Regulation on Obligations Alternative to Administrative Detention (Official Gazette of 14 September 2022, No. 31953), Articles 6(2) and 12.
• Constitutional Court, Plenary, Abdulkadir Yapuquan, Application No. 2016/35009, 2 May 2019 (Press Release BB 45/19, 17 May 2019).
• Presidency of Migration Management, "Voluntary Return", goc.gov.tr.

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.