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Dr Meltem Ineli-Ciger, Associate Professor, Suleyman Demirel University Faculty of Law

Over the years, the EU-Turkey Statement of March 2016 and particularly EU funding have notably increased Türkiye’s detention capacities, raising questions about the EU’s support to the establishment and widespread use of alternatives to immigration detention in Türkiye. Türkiye’s recent amendments to its main asylum and migration law introduced seven alternatives to immigration detention, aiming to uphold the rights of migrants and reduce detention reliance. This shift necessitates academic scrutiny. This post provides a brief overview of alternatives to detention in Türkiye and argues that the EU’s support for alternatives to detention in Türkiye is at odds with the EU’s externalisation policies and containment focus in these policies.

1.    Why do alternatives to detention in Türkiye matter?

Immigration detention is considered a measure that restricts the right to liberty and security. The right to liberty and security, which is guaranteed by international treaties and, inter alia, secured under Article 9 of the International Covenant on Civil and Political Rights, Article 37 of the Convention on the Rights of the Child, Article 14 of the Convention on the Rights of Persons with Disabilities and Article 5 of the European Convention on Human Rights (ECHR), requires that no one shall be arbitrarily deprived of his or her liberty. Türkiye is a party to these human rights conventions, including the ECHR, and according to the Turkish Constitution, “in the case of a conflict between international conventions concerning fundamental rights and freedoms and the Turkish laws, the provisions of international agreements shall prevail.” According to the established case law of the European Court of Human Rights (ECtHR), “the detention of vulnerable individuals will not be in conformity with Article 5 § 1(f) if the aim pursued by detention can be achieved by other less coercive measures, requiring the domestic authorities to consider alternatives to detention in the light of the specific circumstances of the individual case”.

Alternatives to detention (ATDs) can be defined as any law, policy or practice by which persons are not detained for reasons relating to their migration status. International human rights law provides that immigration detention should be used as a ‘last resort’ and alternatives to immigration detention should be used to avoid arbitrary deprivation of liberty of migrants. Objective 13 of the Global Compact for Safe, Orderly and Regular Migration is to “use immigration detention only as a measure of last resort and work towards alternatives”. ATDs are usually regarded as humane policies that respect the fundamental rights of migrants (IDC, p. 5). Therefore, alternatives to immigration detention are often seen as ‘good practice’ for states that use immigration detention as a means of migration management.

For Türkiye, ATDs are especially important for two main reasons. First, Türkiye hosts the largest number of forced migrants in the world, with more than 3.4 million refugees and has one of the world’s largest migration-related detention systems. According to the Turkish Presidency of Migration Management (PMM), as of November 2023, there were 29 removal centres across the country with a total capacity of 16,110 migrants, while eight more centres are planned to be built soon. The use of ATDs could protect the rights of thousands of migrants in Türkiye who are at risk of being detained in Removal Centres. A second reason ATDs are important for Türkiye is the shortcomings of the Turkish detention law and policy and poor detention conditions; the ECtHR in recent years found that Türkiye violated, inter alia, Article 5 of the Convention, with its detention practices in GB and others v. Turkey and Akkad v. Turkey. Against this backdrop, effective use of ATDs in Türkiye can prevent human rights violations and ensure compliance with the human rights standards provided under Turkish Law on Foreigners and International Protection (LFIP), the Turkish Constitution and the ECHR.

2.    Alternatives to Immigration Detention in Türkiye

On 6 December 2019, Türkiye amended its main asylum and migration law, the Law on Foreigners and International Protection, to introduce seven different alternative measures to its legal framework. A subsequent regulation, Regulation No. 31953, concerning alternatives to detention (the ATD Regulation), which entered into force on 14 September 2022, provided further details on how these ATDs should be applied and what procedural safeguards should be observed.

a.    Who can be issued alternatives to immigration detention in Türkiye?

Under Turkish laws, individuals who cannot be removed due to the risk of refoulement should not be issued with a detention order or an ATD decision. Under the LFIP, for a migrant to be issued detention or an ATD decision, they should:

  • pose a risk of absconding or disappearing;
  • have previously violated rules of entry into or exit from Türkiye,
  • have used false or fabricated documents,
  • have not left Turkey after the expiry of the period granted to them to leave without an acceptable excuse or
  • pose a threat to public order, public security or public health.

If a migrant who is issued a removal decision falls within one or more of the listed categories, then an administrative detention decision or an ATD decision can be given with regard to this individual.

b.   Assessment of the alternatives to detention

According to Article 6 of the ATD Regulation, whether a migrant should be detained or subject to an ATD should balance the foreigner’s right to liberty and security, family unity, the child’s best interest and public order, public health and public safety. The ATD assessment should consider whether the person has a special need or is vulnerable, as well as their age, health, gender, family status of the migrant, and other relevant factors.

The ATD Regulation defines two categories of vulnerability where ATDs are considered to be particularly appropriate: persons with special needs and vulnerable individuals. It is not clear why vulnerabilities are distinguished from special needs as separate categories. Nevertheless, the term “persons with special needs” is defined by the ATD Regulation as: “Unaccompanied children, disabled, elderly, pregnant, individuals with serious health problems, single mothers or fathers accompanied by their child or children, or individuals who have been subjected to torture, sexual assault, or other physical, sexual, or psychological violence.” Thereafter, the term “vulnerable individuals” is defined as to include “individuals with special needs, alcohol or substance addiction, physical or psychological illness, the tendency to harm themselves or others, infectious disease, a strong suspicion of being a victim of human trafficking or being part of a vulnerable group defined by the United Nations High Commissioner for Refugees, or children at risk”. Although single mothers, single fathers and children are accepted as vulnerable individuals with special needs, families with children or family members as a unit are not perceived explicitly as vulnerable. Moreover, neither the LFIP nor the ATD Regulation cite LGBTQ+ individuals explicitly as vulnerable. Individuals who would face a risk in detention due to their sexual orientation are implicitly included in the “vulnerable group defined by the United Nations High Commissioner for Refugees” category.

c.    Procedural Issues relating to alternatives to immigration detention

As for procedural guarantees, the Turkish administration is required to notify the migrant or her legal representative or lawyer of the ATD decision. If a lawyer does not represent the migrant, they must be informed of the ATD decision, the procedures and the deadlines for appeal. Appeals against an ATD decision can be lodged before the administrative courts. In the specific case of electronic monitoring through ankle monitors, appeals can be lodged before the criminal courts, in particular criminal judgeships of peace.  Alternatives to detention can only be imposed for 24 months. If a deportation order imposed upon a migrant is cancelled, withdrawn or terminated, the ATD measures should also be terminated. Moreover, ATDs can be terminated at any time, provided that ATDs are not considered necessary by the Turkish migration agency or a judge.

d.    Seven alternatives to immigration detention provided under Turkish laws

Turkish laws provide the following ATDs: a) residing at a specific address, b) reporting obligations, c) family-based return, d) return counselling, e) volunteering in public services, f) financial guarantees, and g) electronic monitoring.

Reporting obligation can be fulfilled through three means: a) verification of fingerprint data, b) voice recognition and c) signature. The Provincial Directorates of Migration Management (PDMM) staff can decide on the reporting frequency. The notification intervals, nevertheless, cannot be more than 30 days. When determining the frequency of reporting obligations, migrants’ health, education, family ties, and perceived risk to public security are to be considered. In practice, migrants are usually subject to reporting requirements every two weeks. At the time of writing, in practice, reporting obligations cannot be fulfilled through voice recognition technologies due to the absence of infrastructure.

Residing at a specific address refers to the obligation of the migrant to reside at a certain address until he/she is removed from Türkiye. For a migrant to be subject to the obligation to reside at a certain address, they must declare a specific address, which must be verified through the online address system or in person by the police officers. If the migrant wishes to stay with someone else, the written consent of the person or persons with whom the migrant will stay must be obtained. If the migrant leaves their address without a valid reason, and this is confirmed through police visits, the ATD is terminated, and then they are detained.

Family-based return refers to the obligation of the migrant to stay with their first and second-degree relatives who are legally present in Turkey until they are removed or leave the country voluntarily. This measure can only be applied upon the foreigner’s request. In order for the migrant to be subject to the family-based return measure, her relatives with whom she will stay must give written consent to cooperate with the administration during the deportation process and undertake to cover the foreigner’s travel expenses. A reasonable period is determined for the foreigner subject to this measure to leave the country, and the relevant period is notified to the foreigner in writing. If the foreigner does not leave the country within the specified period, the obligation to family-based return is terminated, and the migrant is detained.

Return counselling is a kind of case management. As part of return counselling, the return counsellor conducts a series of interviews with the migrant. The migrant needs to leave the country within a given period and attend periodic meetings with the return counsellor. If the migrant does not attend these meetings twice without a valid excuse, then the ATD is terminated, and the migrant is detained.

Although reference to the obligation to serve voluntarily in public services is included as an ATD in Article 57/A of the LFIP and Article 13 of the ATD Regulation, this measure has not been regulated in detail, and its details are unclear. Hence, at the time of writing, volunteering in public is not applied in practice.

Financial guarantee refers to the payment of a certain amount (100,000 Turkish liras, which is around 3000 euros as of the end of December 2023) of collateral by the migrant who has been subject to a deportation decision or by a person authorised by the migrant to act on their behalf. Interviews are mandatory with migrants who will be subject to financial guarantees to determine whether they are victims of human trafficking and to prevent traffickers from depositing the financial guarantee on behalf of the migrant. The financial guarantee amount is deposited into the designated government bank accounts by the migrant or the person authorised by the migrant. After the receipt is submitted to the Provincial Directorates of Migration Management, administrative detention is terminated. The migrants who deposited a financial guarantee are given a period of one to six months to leave Türkiye.

Turkish law provides two kinds of electronic monitoring: through a mobile phone application and ankle monitors. These very different measures are directed to different migrant profiles; whilst electronic monitoring through mobile apps is a way to facilitate the fulfilment of reporting obligations, especially for vulnerable individuals or those with care obligations, ankle monitors are only to be used in the case when the migrant poses a high risk to national security.

Electronic monitoring through the mobile app would work as follows: migrants subject to this measure are expected to install the application developed by the PMM on their phones and fulfil their reporting obligations through this app. Without any valid reason, if migrants subject to this ATD do not fulfil two consecutive reporting obligations or are found to be outside the province where they are registered without permission, they are to be detained. At the time of writing, electronic monitoring through the mobile application app was not applied in practice since the said mobile phone app had not yet been developed.

Ankle monitors can be applied only to “leaders, members or supporters of a terrorist or a criminal organisation; those who pose a public order or public security or public health threat; and those who are considered to be linked to organisations that are considered terrorist organisations by international organisations”. Ankle monitors are to be removed when: a) the judge decides to terminate this ATD, b) when the migrant leaves Türkiye, c) when the PMM decides to terminate this alternative measure or d) when the 24-month time limit is up.

3.    A legal analysis of alternatives to immigration detention in Türkiye

The amended Turkish Law on Foreigners and International Protection and the 2022 Regulation on alternatives to detention implicitly recognise that detention should be a measure of last resort, especially for vulnerable individuals. The LFIP initially defined a person with a special need as “out of international protection beneficiaries and applicants, an unaccompanied minor; a disabled person; an elderly person; a pregnant woman; a single mother or a single father with an accompanying child; or a person who has been subjected to torture, rape or other serious psychological, physical or sexual violence.” Hence, the law did not accept migrants as vulnerable unless they applied for international protection or explicitly require an assessment of vulnerability as part of the decision on detention. However, the ATD Regulation, which came into force in 2022, introduced two separate categories of vulnerable migrants, namely, ‘individuals with special needs’ and ‘vulnerable individuals’ and obliged the administration to consider the vulnerability of the migrant as part of the assessment of detention. This is a positive step towards aligning Turkish law and practice with the ECHR and the case law of the ECtHR.

Compared to many European states that regulate ATDs in their national laws, including Austria, the Netherlands and Belgium, Turkish laws provide quite diverse forms of alternative measures. Turkish laws provide not just conventional ATDs such as reporting, residing at a designated place, and sureties but also measures that involve new technologies such as reporting by voice recognition and electronic monitoring through mobile phone applications. The introduction of both reporting through voice recognition and electronic monitoring through mobile applications, provided that respect for data protection and the privacy of individuals who are subject to these measures are ensured, is a positive development. For instance, reporting by voice recognition can eliminate the necessity for migrants and their families to travel long distances to fulfil reporting obligations. Both of these measures can facilitate vulnerable individuals as well as individuals with care obligations complying with alternative measures.

The most used alternatives in Türkiye include reporting (sans reporting through voice recognition) and residing at a specific address. Meanwhile, financial guarantees can only be applied to migrants who can afford a hefty sum, around 3000 euros, and so far, financial guarantees have only been applied in a few cases. Moreover, family-based return applies to migrants who have relatives in Türkiye who can cover the migrants’ travel costs, and this measure is also seldom used. As mentioned above, volunteering in public services is not applied in practice. Meanwhile, return counselling has yet to be implemented in a widespread manner. Finally, the technological infrastructure for reporting via voice recognition and electronic monitoring, both ankle monitors and mobile applications, has yet to be developed.

With regard to compliance of ATDs under Turkish law with international law, at first glance, they are in line with international human rights standards. Compared to detention, alternatives to detention are usually less problematic in terms of human rights since ATDs do not interfere with the right to liberty and security. However, as also acknowledged by McGregor (p.5), sometimes ATDs can also create human rights risks in particular measures “where they entail surveillance, coercion, and significant restrictions to freedom of movement and can constitute net-widening measures”. Moreover, as also noted by UNHCR and OHCHR (para 18), similar to immigration detention, alternatives to immigration detention should also be in line with principles of necessity, proportionality and legitimacy. For instance, the UK Courts (cf. DD v Secretary of State for Home Department [2015] WLR 2217; R (on the application of Abdiweli Gedi) vs Secretary of State for the Home Department, [2016] EWCA Civ 409) concluded that ankle monitors especially when they are applied together with other alternative measures such as residence restrictions or curfews can be disproportionate and violate the right to human dignity, freedom of movement and right to private and family life.

To make a full assessment of whether ATDs in Türkiye respect the fundamental rights of migrants, such as the right to freedom or security, and are all in line with Türkiye’s international obligations, we need to see further evidence of how these newly introduced seven measures are being implemented and to what extent these measures will observe the necessity, proportionality and legitimacy principles. For such an assessment, we also need to see how the government will regulate the measure of ‘volunteering in public services’ and observe how the more potentially problematic measures, such as ankle monitors, will be applied in practice.

4.    What’s the EU got to do with alternatives to detention in Türkiye?

The Turkish authorities, especially the Presidency of Migration Management, are the main actors in developing and applying ATDs in Türkiye. Yet, both the European Union and the Member States individually have been funding international organisations such as IOM, UNHCR, Council of Europe and ICMPD to implement projects that support establishing the national legal framework on ATDs and developing the capacity of the Turkish migration agency so that the Turkish Presidency of Migration Management and its Provincial Directorates can implement the newly introduced alternatives in an effective manner. Activities, training, and legal support provided within the scope of these projects have contributed to the capacity building of the Turkish migration agency in protecting the rights of migrants and reducing reliance on detention.

What is quite curious and perhaps puzzling for this author, who has been working on the EU-Türkiye cooperation in the field of migration within the ASILE project (Horizon 2020) for more than four years and researching alternatives to detention in Türkiye for quite a number of years, is that the projects funded by the EU or the Member States on ATDs are at odds with the underlying primary objective of the EU-third country cooperation arrangements in the field of migration which is to contain migrants and refugees in the regions or countries of origin (Cf. ASILE Project reports (ASILE Turkey Country Report (2022), Shortcomings in EU Cooperation for Externalization of Asylum: Lessons from Niger, Serbia, Tunisia and Turkey Policy Brief (2023))

What is also quite curious is that the EU has spent a lot of money to increase the detention capacity of Türkiye in recent years. Yet, it also funds projects to make ATDs in Türkiye more effective. It is well documented that Türkiye is not the only country in the EU that has funded projects to increase its detention capacity. A study commissioned by the LIBE Committee noted in 2015 that the EU has been building capacity in Armenia and Azerbaijan to support the management of migration detention centres. Another report confirms that the EU has been constantly increasing the detention capacity of third countries.

5.    Conclusion

The support of the EU in increasing the capacity of Türkiye on ATDs can be regarded as a curious case, which is at odds with the EU’s externalisation policies and containment focus in these policies. Nevertheless, although the introduction of a variety of ATDs is a step towards making Turkish asylum and migration laws more in line with international human rights and better protecting thousands of vulnerable migrants in Türkiye, it is crucial that all ATDs in Türkiye are fully implemented, and their application becomes widespread. It is also vital that all the ATDs are implemented in line with human rights guarantees so that they offer not substitutes but real alternatives to detention.

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