Is Administrative Detention Really a Last Resort? Removal Centres and Alternative Obligations under Article 57/A of Law No. 6458

Holding a foreign national who is subject to a deportation decision in a removal centre is the exception in Turkish law, not the rule. The legislation says so plainly: administrative detention may be used only where less restrictive measures fall short. In practice, however, most detention decisions are issued with a single sentence of reasoning in which alternative obligations are never discussed. This article examines the "last resort" test set out in the legislation, the tension the legislation carries within itself, and the approach of the Constitutional Court to the review of reasoning.

What does the legislation say?

Article 57(2) of Law No. 6458 on Foreigners and International Protection, as amended by Article 77 of Law No. 7196 of 6 December 2019, provides as follows: in respect of persons subject to a deportation decision who present a risk of absconding or disappearing, who have breached the rules on entry into or exit from Türkiye, who have used forged or unfounded documents, who have failed to leave within the period granted to them without an acceptable excuse, or who pose a threat to public order, public security or public health, "the governorate shall issue an administrative detention decision, or shall impose obligations alternative to administrative detention under Article 57/A".

That wording is the starting point of the debate: the legislature attached two different consequences to the same grounds and required a choice to be made between them. The "last resort" test therefore is not merely a principle derived from secondary legislation; it follows from the dual structure the statute itself creates.

As to time limits, under Article 57(3) administrative detention in removal centres may not exceed six months. A common mistake should be noted here: the six-month extension does not depend on the deportation process failing to be completed for any reason whatsoever. The statute confines the extension to cases where the process cannot be completed "because the foreign national fails to cooperate or does not provide correct information or documents concerning his or her country". Where the delay stems from the administration's own workings, from protracted consular correspondence, or from the inability to obtain a travel document, the statutory condition for an extension is not met. The extension decision must show that the delay is attributable to the foreign national.

Article 57(4), as amended by Law No. 7196, requires the governorate to assess regularly each month whether the detention remains necessary, not to wait for the thirty-day period where this is considered necessary, and to terminate detention immediately for those in whose case necessity is no longer found. The final sentence of the same paragraph provides that alternative obligations under Article 57/A "shall be imposed" on such persons — wording that leaves no room for discretion.

Article 57/A, added to the statute by Article 78 of the same law, lists the alternative obligations. Its second paragraph provides that these obligations may not exceed twenty-four months; its third paragraph makes it mandatory to impose one or more of them on foreign nationals who fall within Article 57(2) but are not placed in administrative detention. The Regulation on Obligations Alternative to Administrative Detention, which governs the application of the provision, was published in the Official Gazette of 14 September 2022, No. 31953. Together, the statute and the regulation provide for seven obligations:

• Residence at a designated address
• Reporting (fingerprint verification, a voice-recognition application, or a wet signature at the provincial directorate)
• Family-based return (staying with first- or second-degree relatives lawfully present in Türkiye)
• Return counselling
• Voluntary work in services of public benefit
• Security (one hundred thousand Turkish lira under Article 14 of the Regulation, increased each year by the revaluation rate)
• Electronic monitoring

Where does the "last resort" test come from?

The structure established by Articles 57(2) and 57/A(3) of the statute becomes a more explicit rule at the level of secondary legislation.

That alternative obligations take precedence over administrative detention is written as an express rule in Article 7 of the Regulation. Under that article, it is the rule that whether a foreign national is to be made subject to alternative obligations must be assessed before he or she is placed in administrative detention; the assessment is individual, and the person's age, state of health, sex, family situation and whether he or she has special needs or is in a vulnerable situation are taken into account. Administrative detention may be used only where "the application of alternative obligations is not possible or is not sufficient".

Article 5(4) of the Regulation sets out a balancing test to the same effect: the assessment must weigh the foreign national's right to liberty and security, family unity and the best interests of the child against public order, public health and public security.

The legal consequence is this: an administrative detention decision does not become lawful merely by showing that one of the grounds in Article 57(2) exists. The decision must also set out which less restrictive measures were considered and why they were found insufficient. Where that assessment was never carried out, or where the decision does not show that it was, this in itself provides the basis for an argument of unlawfulness.

The statute also guarantees that this reasoning reaches the person in writing. Under Article 57(5), the administrative detention decision, the extension of the period and the results of the regular monthly assessments are notified, together with their reasons, to the foreign national or to his or her legal representative or lawyer; where the person is not represented by a lawyer, he or she or the legal representative is informed of the outcome of the decision and of the procedures and time limits for challenging it. It follows that the monthly assessments are not internal notes that remain on the file but decisions that must be notified.

The tension inside the legislation

Article 6(4) of the same Regulation, however, contains a provision pointing in the opposite direction. Under that paragraph, where one of the grounds in Article 57 exists, it is "the rule that the foreign national be placed in administrative detention as a priority" if one or more of the following four situations is present:

• that correct information and documents concerning the person's country could not be obtained if he or she were not placed in administrative detention;
• that administrative detention is required in order to establish the person's identity and nationality;
• that the foreign national does not cooperate with the administration;
• that the person could not be returned to his or her country if not placed in administrative detention.

Within one and the same text, Article 7 treats the assessment of alternatives as the rule and detention as the exception, while Article 6(4) declares detention to be "the rule" in four situations. If the two provisions are read as exhausting one another, a broad reading of the situations in Article 6(4) may in practice render the duty of individual assessment in Article 7(1) inoperative. The criterion of "failure to cooperate with the administration" is particularly open: it is neither defined nor bounded, and where a decision does not distinguish between being unable to produce a passport and deliberately withholding information, this provision risks becoming a formula that makes reasoning easy to manufacture.

In our view, the correct reading is to treat Article 6(4) not as an exception to Article 7(1) but as an illustration of the "insufficiency" assessment contained within it. In other words, even where the administration relies on one of the situations in Article 6(4), it must show why that situation could not be addressed by alternative obligations in the particular case. Any other reading is incompatible with the purpose of Article 57/A of Law No. 6458, on which the Regulation is based, and with the constitutional test discussed below.

How does the Constitutional Court review unreasoned decisions?

In its judgment in Abdulkadir Yapuquan of 2 May 2019 (Application No. 2016/35009), the Plenary of the Constitutional Court made determinations that are decisive for the reasoning of administrative detention decisions. In that case, a deportation and administrative detention decision had been issued in respect of the applicant, a national of the People's Republic of China who had been granted a refugee certificate by the United Nations High Commissioner for Refugees, and the applicant had been held in a removal centre for more than twelve months.

Having stated that placement in administrative detention is an exceptional power recognised by Article 19 of the Constitution, the Court held that where deportation or extradition proceedings are not conducted with due diligence, depriving a person of liberty cannot be regarded as legitimate. In that case, the reasoning leading to a finding of violation rested on two limbs:

First, the problem of abstract reasoning. According to the Court, the applicant was deprived of his liberty because statutory grounds such as public order and public security were "repeated in the abstract, without being reasoned". The absence of any explanation in the decision as to the applicant's individual circumstances that made him a threat meant that the Constitutional Court could not obtain any material on which to assess the lawfulness of the detention. That finding matters because it shows that a lack of reasoning is not merely a formal defect but a substantive one that makes review impossible.

Second, duration and periodic review. Although the administrative detention decision had to be subject to a monthly assessment of necessity, the assessment was carried out nine days after the period expired, and the Court treated this as a separate ground contrary to the requirement of lawfulness. The practical consequence is this: it is not enough for the monthly assessment to have been carried out; it must have been carried out in time, and a delay by itself gives rise to unlawfulness.

Although that judgment concerns the period before Article 57/A, the test it lays down applies directly to the regime of alternative obligations. If repeating the words "public order" is not enough, then a decision that contains not one line of explanation as to why alternative obligations were found insufficient will not survive the same review either.

What should be examined in practice?

When the lawfulness of an administrative detention decision is in issue, the following elements must be looked for in the decision itself:

• which ground in Article 57(2) the decision relies on, and what the basis for that ground is in the particular case;
• whether alternative obligations were assessed and, if so, which of them was found inapplicable or insufficient and why;
• whether the individual assessment required by Article 7(1) of the Regulation was carried out, and whether the person's age, state of health, family situation and any special needs were taken into account;
• whether the monthly necessity assessments were in fact carried out on time and whether their results were notified with reasons under Article 57(5);
• where the period has been extended, whether it has been shown that the delay stems from the foreign national's failure to cooperate or to provide information or documents, as Article 57(3) requires;
• whether, under Article 7(4) of the Regulation, the administrative detention decision was terminated where the need for an alternative obligation was established within the forty-eight-hour period relating to transfer to a removal centre.

An administrative detention decision may be challenged before the magistrate's court in criminal matters by the person concerned, his or her legal representative or lawyer under Article 57(6). The application does not suspend the detention; the judge concludes the examination within five days and the decision is final. A fresh application may be made on the ground that the conditions have ceased to exist or have changed — which means that this is a remedy that can be repeated throughout the detention.

A deportation decision, by contrast, is challenged before the administrative court within seven days of notification, under Article 53(3) as amended by Article 36 of Law No. 7533 of 21 November 2024. The two remedies are independent of one another and lie before different authorities; using one does not take the place of the other.

Conclusion

In Turkish law, administrative detention is, on the wording of the legislation, a last resort. Whether that characterisation remains on paper depends on its being visible in the reasoning of the decision. While Article 7(1) of the Regulation imposes a duty of individual and prior assessment, the wording of Article 6(4), which treats detention as "the rule" in four situations, has the potential to weaken that duty. The two provisions can be reconciled by accepting that Article 6(4) too ultimately requires the finding of "insufficiency" that Article 7(1) calls for. The Constitutional Court's approach — refusing to treat abstract reasoning as sufficient and treating a delayed periodic assessment as a breach of lawfulness — supports that reading. At the level of legislation, expressly regulating the relationship between Article 6(4) and Article 7(1) would reduce the uncertainty seen in practice.

Sources

• Law No. 6458 on Foreigners and International Protection (Official Gazette of 11 April 2013, No. 28615), Articles 53, 57 and 57/A (Articles 57(2), 57(4) and 57/A: added and amended by Articles 77–78 of Law No. 7196 of 6 December 2019; Article 53(3): amended by Article 36 of Law No. 7533 of 21 November 2024).
• Regulation on Obligations Alternative to Administrative Detention (Official Gazette of 14 September 2022, No. 31953), Articles 5, 6 and 7.
• Constitutional Court, Plenary, Abdulkadir Yapuquan, Application No. 2016/35009, 2 May 2019 (Press Release BB 45/19, 17 May 2019).
• Meltem İneli Ciğer, "Alternatives to Administrative Detention in International and Comparative Law", Public and Private International Law Bulletin, Vol. 40, No. 2, 2020, pp. 799–829.

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.