When an administrative court rejects a challenge to a deportation (removal) order in Turkey, the last domestic remedy left to the foreign national is an individual application to the Constitutional Court (AYM) together with a request for an interim measure. This article explains, in light of the Court’s case law, when interim measures are granted, the standards on risk of ill-treatment, effective remedy and family life, and how to prepare an application.
Legal framework: statutory protection ends with the administrative court’s decision
Under the Law on Foreigners and International Protection No. 6458, a removal order may be challenged before the administrative court within 7 days of notification (Art. 53/3). During that period and, if a case is filed, until the proceedings end, the foreign national cannot be removed without their consent. The court decides within fifteen days and its decision is final: there is no appeal. Once the court dismisses the case, the statutory suspension ends and the order becomes enforceable.
An individual application to the Constitutional Court does not automatically suspend removal. Only an interim measure ordered by the Court does.
| Provision | Content |
|---|---|
| Law 6458 Art. 4 | Non-refoulement: no one may be sent to a place where they would face torture or inhuman or degrading treatment. |
| Law 6458 Art. 54 | Persons subject to a removal order. |
| Law 6458 Art. 55 | Persons who may not be removed (e.g. where there are serious indications of the death penalty, torture or ill-treatment in the destination country). |
| Law 6458 Art. 53/3 | 7-day time limit, no removal while the case is pending, finality of the decision. |
| Constitution Art. 17 | Right to life and to physical and mental integrity; prohibition of torture and ill-treatment. |
| Constitution Arts. 20 and 40 | Right to respect for private and family life; right to an effective remedy. |
Interim measures: the serious danger test
The Constitutional Court may order an interim measure where it finds a serious danger to the applicant’s life or physical or mental integrity (Law No. 6216 Art. 49/5; Rules of Court Art. 73). In removal cases, the measure usually means that the applicant may not be removed until the Court decides on the application.
- Which rights: in practice, interim measures are granted mainly for risks under Article 17 (life, torture and ill-treatment). Family life or property claims alone are not a basis for an interim measure.
- Nature of the risk: the Court looks for a serious, imminent and individualised risk. Claims based only on the general situation in a country rarely succeed.
- Procedure: applications with an interim measure request are examined with priority. If granted, the measure is notified to the relevant authorities, in removal cases to the migration administration.
Example: in Azizjon Hikmatov (App. No. 2015/18582), the Second Section ordered an interim measure by an interlocutory decision of 15/12/2015 for an Uzbek national who claimed a risk of ill-treatment in his country. In its judgment on the merits of 10/5/2017, the Court found a violation of the prohibition of ill-treatment under Article 17.
Risk of ill-treatment: an arguable claim comes first
According to the Court, where a person claims they would face ill-treatment in the destination country, the administration and the courts must examine in detail whether a real risk exists. An early example of this approach is Rida Boudraa (App. No. 2013/9673, 21/1/2015).
The duty does not arise automatically in every removal case. The applicant must first put forward an arguable claim, one that deserves examination and raises reasonable doubt:
- explain reasonably what risk they would face in the destination country,
- submit any information and documents supporting the claim,
- and the claim must reach a certain level of seriousness.
The Court may declare applications inadmissible as “manifestly ill-founded” where the allegations are not supported by concrete evidence. The key factors are:
- Individualisation: the general human rights situation of a country may not be enough. Ethnicity, religion or sect, political background, family position, past threats and the profile of returnees should be described concretely.
- Consistency: statements in the international protection interview, before the administrative court and before the Constitutional Court are compared.
- Current and reliable sources: reliance on outdated or selectively quoted country reports can be criticised. Recent reports by UNHCR, the EUAA and UN special rapporteurs should be attached.
- Exhaustion: facts never raised before the administrative court can cause problems before the Constitutional Court. Claims should be presented in full from the first stage.
Three key judgments
In removal cases involving a risk of ill-treatment, the Court examines the right to an effective remedy (Art. 40) together with Article 17 and requires the remedy to work both in law and in practice.
- Y.T. (App. No. 2016/22418, 30/5/2019), pilot judgment: at the time, filing a case against certain removal orders did not suspend enforcement. The Court found that the applicant remained at risk of removal while the case was pending and that the right to an effective remedy had been violated. Holding the problem to be structural, it applied the pilot judgment procedure and called for legislation. Article 53 was subsequently amended by Law No. 7196 (2019), which also reduced the time limit to 7 days.
- Hooman Hosseinpour [Plenary] (App. No. 2021/47168, 29/9/2022): the removal order did not specify the country of destination. The Plenary stressed that, where the destination is not determined, the courts cannot assess the risk of ill-treatment there or the risk of indirect return to the country of origin, and found a violation of the right to life and the prohibition of ill-treatment.
- Abdulkerim Hammud (App. No. 2019/24388, 2/5/2023): the applicant, under temporary protection, was sent to Syria on the basis of a signed “voluntary return” form before his case was decided; the administrative court later annulled the removal order. The Second Section held that he had not been adequately informed of the real risk and could not be said to have returned knowingly and voluntarily, and found violations of the right to life, the prohibition of ill-treatment and the related right to an effective remedy.
Hosseinpour matters in practice because removal orders are often framed as “to the country of origin or, if not possible, to a safe third country”. Hammud shows that a person at risk of removal should not sign any voluntary return form without understanding its consequences and obtaining legal support.
Family life: important on the merits, weak for interim measures
Removal that breaks a person’s ties with a spouse, children or family in Turkey interferes with family life under Article 20. The Court examines legal basis, legitimate aim and proportionality. Relevant factors include the seriousness of the grounds for removal, the length of stay and age on arrival, whether the spouse and children are Turkish citizens, whether the family could be expected to live together in the destination country, and remaining ties with the country of origin.
There are two limits. A family life claim alone is generally not enough for an interim measure. And family ties formed while a person’s status was temporary or precarious carry less weight before both the Constitutional Court and the European Court of Human Rights; between adult children and parents, an element of dependency beyond normal emotional ties is usually required. Marriage, citizenship of the spouse and children and similar facts should therefore be documented and raised as a separate complaint on the merits.
If the administrative court has dismissed the case: practical steps
- Do not wait for the last day. The time limit for an individual application is 30 days from exhaustion of remedies, i.e. from learning of the final administrative court decision (Law 6216 Art. 47/5). But removal may be enforced at any time once the decision is final. The interim measure request should be stated clearly at the top of the application.
- Make the risk concrete. Explain each individual risk factor and support it with witness statements, messages, photographs or news reports.
- Attach current country reports. If the court relied on an outdated report, say so expressly.
- Frame the complaints correctly. Base them on Articles 17, 40 and 20. The Court does not examine removal disputes of foreign nationals under the right to a fair trial (Art. 36).
- Inform the authorities. Notifying the provincial migration directorate in writing that an application has been lodged can be useful in practice.
- Be careful with forms. In particular, a “voluntary return” form should not be signed without understanding its consequences and obtaining legal support.
- Comply with reporting duties. Failing to report where a reporting obligation has been imposed as an alternative to administrative detention may justify detention.
- Apply to Strasbourg if necessary. If the Constitutional Court rejects the interim measure request, an interim measure may be sought from the European Court of Human Rights under Rule 39 of the Rules of Court.
Key documents: identity card and passport, the removal order and notification document, international protection interview records and decisions, the administrative court decision and its notification date, evidence supporting the risk claim, civil registry records showing family ties in Turkey and, if any, a power of attorney.
Conclusion
Once a removal order becomes final before the administrative court, an individual application to the Constitutional Court is the last domestic remedy that can stop enforcement. Whether an interim measure succeeds depends on how well the risk is individualised, documented and supported by current sources. Applications based on general and abstract claims may be declared inadmissible. In these cases, time is the most valuable factor.
General information only; not legal advice. Legislation and case law may change, and each case must be assessed on its own facts. Judgments: Azizjon Hikmatov, App. No. 2015/18582 (interim decision 15/12/2015; judgment 10/5/2017); Rida Boudraa, App. No. 2013/9673, 21/1/2015; Y.T., App. No. 2016/22418, 30/5/2019; Hooman Hosseinpour [Plenary], App. No. 2021/47168, 29/9/2022; Abdulkerim Hammud, App. No. 2019/24388, 2/5/2023. Full texts: Constitutional Court decisions database.