The phenomenon of illegal immigration has been intensively encountered and discussed in Turkey in recent years, and one of its legal consequences involves the expulsion of those who’ve illegally entered the country. Expulsion decisions can undoubtedly be awarded not only for those who’ve entered the country illegally but also for those who’ve entered the country in accordance with the law. In administrative decisions regarding the expulsion of foreigners who’ve entered the country unlawfully or who’ve entered the country lawfully but whose expulsion is deemed appropriate for different legal reasons, multiple legal principles may sometimes come into conflict with one another, or different legal interests may conflict, such as protecting fundamental rights and protecting public order. The administration’s preference in this conflict or confrontation may occur as the deciding factor in which decision to make, but this may not always lead to fair and equitable results. If the use of preference or preponderance in favor of one legal interest or legal principle would result in unacceptable or intolerable consequences for the other, then methods and approaches that would cause less harm to the neglected one should be used instead of choosing just one option. The social, political, and economic aspects of expulsion decisions should also be stated to not suppress the legality of their assessment in a judicial review.

The phenomenon of illegal migration has two legal bases: human rights on one side and public order on the other, neither of which can be neglected or ignored. An approach to dealing with this phenomenon that preserves both bases would undoubtedly be much fairer than a preference for one over the other.

This study will first evaluate the nature of expulsion decisions in terms of administrative law. This assessment will answer the question of whether expulsion decisions are administrative measures or administrative sanctions. The study will then indicate how the previous assumption that expulsion decisions are governmental acts has now been rejected. Secondly, the study will examine the evidentiary nature of confidential information and documents as well as intelligence documents. In this context, Article 20 from the Procedures of Administrative Justice Act will be examined. This section will present the administrative courts’ interpretations regarding Article 20 and subsequently compare the rights-based perspective of the Constitutional Court with that of the administrative courts.

Thirdly, the study will analyze the impact criminal investigations and prosecutions, which constitute important evidence in the review of expulsion orders, have on administrative proceedings. This is because the administrative courts that review expulsion decisions take into account whether any ongoing criminal investigation or prosecution is found for the person against whom a decision has been issued. Furthermore, three questions are answered under this section: Does the fact that a criminal investigation has been initiated against a person on its own sufficient for an expulsion decision, is the initiation of a criminal case sufficient or does it require a conviction, and do all convictions require expulsion? This study concludes that a distinction should be made in terms of the degree of the offense committed, even if a conviction has been obtained against the person for whom an expulsion decision has been issued.

Fourthly, the study will assess the standard of proof courts apply in the judicial review of expulsion decisions. The concept of standard of proof refers to the minimum level of proof that a court must meet before reaching a conclusion in a particular case. In administrative procedural law, different standards of proof can be said to be applied for different types of disputes. Beyond a reasonable doubt as a strong standard of proof should be noted to be sought especially for administrative sanctions. The Constitutional Court has recognized in its decisions that, as a rule, different standards of proof may be required for different disputes, and applying different standards of proof in disputes involving different legal disciplines such as criminal law, tax law, compensation law, and administrative law may be possible. An expulsion decision against a foreigner does not require as high a standard of proof as in criminal law. When evaluating the characteristics of the case and the evidence, reasonable suspicion may be considered sufficient for expulsion decisions. Although the standard of proof of beyond a reasonable doubt, which is the standard of proof in criminal law, is required for administrative sanctions, a lower standard of proof should be considered sufficient in expulsion decisions by considering the threat it poses to national security and public order.

However, adopting a lower standard of proof does not mean that these decisions will be unjustified. Nor does a lower standard of proof imply a trial without evidence. The reasonable standard of doubt this study proposes means that the information available for judicial review of a decision should lead to the strong opinion that an expulsion decision should be made. In other words, it requires the presence of evidence of sufficient quality to form such a judgment.