Deportation and Ill-Treatment Risk: Türkiye Constitutional Court

If courts in two earlier cases took seriously a foreigner's claim that he could be ill-treated if returned to his country, can a court reviewing a third deportation order dismiss the case without discussing that claim at all? The Constitutional Court of Türkiye (First Section), ruling on the application of a foreigner ordered to be sent to his country of origin because his residence permit had expired, answered no: the administrative court's failure to assess the allegations was characterised as a violation of the procedural limb of the prohibition of ill-treatment.

In its decision of 22.07.2026 on application no. 2026/23892, the Constitutional Court (First Section) unanimously held that the prohibition of ill-treatment guaranteed by Article 17(3) of the Constitution had been violated, ordered a retrial, and ruled that the applicant is not to be deported until that retrial is concluded.

🧭 Three separate deportation proceedings

According to the text of the decision, the applicant is a foreigner who entered Türkiye lawfully in 2014. In the following years the administrative authorities took measures against him on different dates, and each ended in a separate judicial process.

1. First deportation order of 31/12/2021: It was decided that the applicant be deported to his country of origin on the ground that restriction codes M-26 (unlawful organisation activities) and G-87 (public security) applied to him. The applicant argued that, as a member of a religious community (the Tablighi Jamaat), he would be wrongfully exposed to a criminal investigation in Tajikistan. The administrative court noted that the Tajik police authorities had requested his deportation, alleging that he had committed a terrorism offence, but annulled the order, stating that the claim that he would be ill-treated because of the religious view he held had not been sufficiently examined.
2. Refusal of a humanitarian residence permit on 27/3/2023: The applicant's request for a humanitarian residence permit was refused, and the action he brought against this decision was dismissed at first instance on the ground that the conditions were not met. The regional appeal authority, however, accepted the appeal and expressly stated that the allegations that he would face ill-treatment if returned were arguable and of a certain level of seriousness. The applicant was then granted a residence permit valid from 5/1/2025 to 5/9/2025.
3. Second deportation order of 13/11/2025: On the ground that the residence permit had ended on 5/9/2025, it was again decided that the applicant be deported to his country of origin. In his action, the applicant relied on the two earlier judicial assessments and repeated his allegations. The Istanbul 16th Administrative Court (E.2025/4770, K.2026/1664), however, dismissed the action without making any concrete assessment of these points.

The notable point is that, despite the two earlier judicial assessments, the allegations were not discussed at all in the last case. The basis of the second deportation order is also not a security assessment but the expiry of the residence permit.

📨 Individual application and interim measure

The applicant learned of the final decision on 18/5/2026 and lodged an individual application on 2/6/2026. At the applicant's request, the Constitutional Court ordered an interim measure suspending the deportation under Article 73 of its Internal Rules. In this way the applicant could not be sent to his country while the examination before the Constitutional Court continued, and the decision on the merits was given about two months after the application, on 22/7/2026.

The admissibility and merits of the application were examined by the Section. The request that the applicant's identity be kept confidential in public documents was accepted, and the request for legal aid was also accepted because the claim that the foreign applicant lacked the means to pay the costs was not manifestly unfounded. The application was examined under the prohibition of ill-treatment.

⚖️ The Constitutional Court's criteria

Article 17(3) of the Constitution provides that no one shall be subjected to torture or ill-treatment, and that no one shall be subjected to a penalty or treatment incompatible with human dignity. The Constitutional Court, referring to the decision of its General Assembly on application no. 2015/3941, recalled once again that this provision covers not only the State's own acts but also sending a foreigner to a country where there is a risk of ill-treatment.

The principles that stand out in the decision can be listed as follows:

🔎 Finding of violation and redress

According to the Court, in the annulment action the applicant did not put forward merely an abstract allegation; he also relied on the earlier administrative court decisions that had given credit to his claims. The fact that earlier cases contained assessments that a conviction had formed that he would face persecution in his country made an explicit assessment of the allegations necessary. The applicant was therefore accepted as having shown substantial grounds.

Nevertheless, the administrative court reached its conclusion without making any assessment of the allegations, including whether the applicant was a member of the community in question. The Constitutional Court characterised this as a failure to provide effective procedural safeguards protecting the applicant against being sent to a country where he would face a risk of ill-treatment, and found a violation.

In the redress section, the Court reached the following results:

• Because there was a legal interest in, and a necessity for, a retrial to remove the consequences of the violation, a copy of the decision was sent to the Istanbul 16th Administrative Court.
• Because deporting the applicant while the retrial is pending would render the finding of violation meaningless, it was ruled under Article 50(1) of Law No. 6216 that he is not to be deported until the proceedings are concluded.
• The claim for pecuniary and non-pecuniary compensation, requested without stating an amount, was rejected on the ground that the retrial would provide sufficient redress.
• It was decided that the costs, consisting of a lawyer's fee of TL 40,000, be paid to the applicant, and that a copy of the decision be sent to the Presidency of Migration Management and the Ministry of Justice.

The Court stressed that the finding of violation does not signify a position on the outcome of the case, and that the power to assess the evidence belongs to the court that will conduct the retrial.

📘 Link to Law No. 6458

The decision applied Article 17 of the Constitution and Article 50 of Law No. 6216 directly. However, the Law on Foreigners and International Protection No. 6458 lies in the background of the dispute. The following provisions in the current text of that Law stand out:

Because the court's decision is final, no ordinary appeal route remained against the administrative court's dismissal without discussion of the allegations, and the individual application stood out as the only safeguard. The practical importance of the decision lies here: whether the "serious indications" assessment under Article 55 of the Law was carried out can be subject to the Constitutional Court's procedural review. A different example concerning compliance with Constitutional Court decisions is discussed in the article on a refusal of retrial after a European Court of Human Rights judgmentTR, and another administrative measure concerning foreigners in the article on a spouse's offence and a citizenship decisionTR.

📌 Limits of the decision

The decision has some limits that should be kept in mind when reading it:

1. The Constitutional Court did not rule that the applicant would actually be ill-treated in Tajikistan. Its finding concerns the administrative court's failure to assess the allegations at all.
2. The appropriateness of the restriction codes and the security assessment concerning the applicant were not examined. As stated in the decision, the basis of the second deportation order is the expiry of the residence permit.
3. In this case, the fact that the two earlier judicial assessments gave credit to the applicant's claims was decisive in concluding that the "substantial grounds" threshold had been met. In cases without such a history, whether the threshold is met is assessed separately.

❓ Questions and answers

For detailed information and legal support, you can contact Savun Law & Consultancy. Contact details are on the contact page, and similar decisions are in the Precedent DecisionsTR archive.