FUTURE AMENDMENTS IN THE LAW ON WORK PERMITS OF FOREIGNERS

 It has been more than three months that Law on Foreigners and International Protection has been accepted and officially published in the Turkish official gazette.[1] As it is clarified by the article 125 of new law, except certain provisions regarding to the establishment of General Directorate of Migration Management, all other provisions shall enter into force one year after the publication date. However, new law also indicating some major changes in the other legislations such as Turkish Citizenship law and Law on Work Permits of Foreigners.[2] Although those changes are not also currently become effective, there is no doubt that once the Law on Foreigners and International Protection (herein after Law no: 6458 ) enters into force, current system of working permits of foreigners will also be reshaped. Law on Foreigners and International Protection, especially by the virtue of article 123 (5), provides important amendments with the current work permit system for foreigners.  Following headlines will examine major promised changes in the Law on Work Permit of Foreigners. (Law no: 4817)

FOREIGNERS WHO MAY NOT APPLY FOR WORK PERMIT

As different from current system, law no: 6458 defines list of foreigners who may not apply for work permit. Article 27(2) of law no: 6458 states that following foreigners (who are defined in the article 7 of the law no: 6458) may not apply for work permit.

 “i) it is determined that his or her passport, passport substituting document, visa or residence permit or work permit is absent or fraudulent; or that he or she has obtained these permits fraudulently, ii) he or she does not hold a passport or a passport substitute document which is valid for at least sixty days as of the expiry of visa, visa exemption or residence permit, iii) he or she falls under the scope of the foreigners listed under the first paragraph of Article 15, without prejudice to the second paragraph of Article 15[3] of this Law, and regardless of whether or not he or she is exempted from a visa.”

RELATIONSHIP BETWEEN WORK AND RESIDENCE PERMITS

Law on Foreigners and International Protection will introduce new system in the work and residence permits relations. Currently work permit holders are also required to have “Work Registered Residence Permit”. For the inland work permit applications, once the applications are approved by the ministry, holders of work permits are required to apply for residence permit within 30 days. This applies to work visas as well. Upon their arrivals to Turkey, work visa owners are also required to apply for residence permit within 30 days. New system, on the other hand introduces new one stop process by letting work permits to be used as residence permits.[4] Thus most important work permits validity condition; “Work Registered Residence Permit application” will be outlawed by the Law no: 6458.

Just as working permissions, Law no: 6458 specifies that “Work Permit Exemption Certificates” will also be used as residence permits.[5] Turkish legislation on work permits of foreigners lets some categories of foreign nationals to be exempted from the work permit requirement.[6] Currently upon their request, those foreigners who are exempted from work permit requirement may ask for “Work Permit Exemption Certificates”. However with the introduction of new law, since exemption certificates will be used as residence permits, obtaining “Work Permit Exemption Certificates” probably will be compulsory for those who are exempted.

WORK PERMIT FOR THOSE FOREIGNERS WHO ARE WITHIN THE SCOPE OF INTERNATIONAL PROTECTION

Law on Foreigners and International Protection clearly defines working permissions of those foreigners who are within the scope of international protection. In terms of Law no:  6458, “International Protection” refers to statuses of Refugee[7], Conditional refugee[8] and Subsidiary Protection[9]. By the virtue of article 123 (5) (b) “Foreigners and stateless persons who have applied for international protection and who have been granted conditional refugee status by the Ministry of Interior” are exempted from work permit requirement. Moreover article 89 (4) of Law no: 6458 regulates labor market access of applicants and beneficiaries of International protection. Accordingly;

“Regarding access to the labour market;

a) An applicant or a conditional refugee may apply for the work permit six months after his or her application for international protection.

b) A refugee or beneficiary of subsidiary protection, upon being granted the status, may work independently or under an employer. The provisions of other legislation regarding jobs and professions prohibited to foreigners shall be reserved. Identification documents to be issued to refugees or beneficiaries of subsidiary protection shall also substitute for a work permit and this information shall be indicated on the identification document.

c) Access of refugees and beneficiaries of subsidiary protection to labour market may be temporarily restricted for agriculture, industry or service sectors, a certain job, profession, or administrative and geographical area, when it is required by the conditions of the labour market, developments in the labour life, and sector and economic conditions regarding employment. However, such restrictions shall not be implemented for refugees and beneficiaries of subsidiary protection who have been residing in Turkey for 3 years, or who are married to Turkish citizens, or who have children with Turkish citizenship.

d) Procedures and principles regulating the employment of applicants or beneficiaries of international protection shall be governed by the Ministry of Labour and Social Security in consultation with the Ministry.”

WORKING PERMISSION FOR FOREIGN STUDENTS

While in the current legislation foreign students are not allowed to work legally in Turkey. As only exception, foreigner researchers registered in graduate programs are allowed work on-campus. Article 41 of the Law no: 6458 explicitly grants foreign students with right to work in Turkey. Accordingly;

“Students pursuing foundation, undergraduate, graduate or postgraduate degrees in Turkey may work  provided that they obtain a work permit. However, foundation and undergraduate students shall only be given the right to work no more than 24 hours a week following the first year of studies.”

DEPORTATION DECISION AGAINST FOREIGNERS WORKING WITHOUT WORK PERMIT

In fact Law on Work Permit of Foreigners under its penal provisions does not include explicit clauses regarding deportation of foreigners who work without working permission.  Under article 21 of the Law, administrative fines mechanism is introduced as administrative sanctions against to the foreigners and employers failing to comply with the provisions of on Work Permits of Foreigners. According to Article 19 of the Law Related to Residence and Travels of Foreigners in Turkey[10] (which will be replaced and outlawed by the Law on Foreigners and International Protection)

The foreign subject persons who are considered as their residence shall be contrary to the public security, the politics and governmental requirements are invited to leave Turkey within the specific time given.  At the end of this time, the persons who have not left Turkey may be driven out of Turkey.”

Although the phrase “public security, the politics and governmental requirements” above provides Ministry of Interior with the wide discretion, current legislation does not have sole provision regulating deportation decision against to the foreigners working in Turkey without working permission. Only Ministry of Interior Circular No. 155 on the “Work Permits of Foreigners, Work Visas and Residence Permits” provides that, during the inspections if it s established that foreigners are working illegally pursuance to examination and scrutiny of foreigners’ passport,  visa and residence permits, deportation process will be started.

Law on Foreigners and International Protection strictly provides in article 54 that against foreigners ‘who are identified as having been working without a work permit” a deportation decision might be issued.

OTHER AMENDMENTS IN THE WORK PERMIT LEGISLATION

As discussed above Law No: 6458 has introduced remarkable changes to the current work permit system in Turkey. Despite the fact that all of the above mentioned changes are clarified by the Law no: 6458, there are also some provisions which are shadowy in interpretation. Most of these provisions are placed in the article 123 (5) of Law no: 6458.

As per 123 (5-c) of new law, article 12(1)[11] of the Law on Work Permits of Foreigners will be changed as follows;

Foreigners shall file an application for their first work permit at the Consulate of the Republic of Turkey in their country. The Consulate shall directly submit these applications to the Ministry. The Ministry shall take the opinion of the relevant authorities and evaluate the applications in accordance with Article 5 and a work permit shall be granted to foreigners whose status is deemed appropriate. Foreigners may stay and work for the duration on the work permit obtained from the consular office.”

At first sight, new wording of article 12(1) confirms the new rule in using work permits as residence permits. In its current version, while article 12(1) defines work permit applications made outside the Turkey (work visa applications) article 12(2) defines inland applications.  Article 12(2) puts forward that foreigners with residence permit valid for at least 6 months may make their applications to the Ministry of Labor and Social Security internally. Although with Law no: 6458, nothing has amended in article 12 (2), wording of article 12 (1) Foreigners shall file an application for their first work permit at the Consulate is so general as it does not make distinction between so called out-land and in-land applications.

Law no: 6458 also amends article 5(a) of the Law on Work Permits of Foreigners. Current version of the article 5(a) stipulates that “[w]orking permission for a definite period of time is given to be valid for at most one year...according to the duration of residence permit of the foreigner and the duration of the service contract or the work.” By the virtue of article 123 (a) of new law, “duration of residence permit” passage in the article 5(a) is omitted. As it is known, in the present system, in order to apply for work permit within Turkey, foreigners are required to have residence permit valid for at least 6 months.  Similarly article 14 ( c) of the Law on Work Permits of Foreigners is changed in the new system. According to article 14 ( c) absence of valid residence permit constitutes a ground for rejection of work permit application. By the virtue of article 123 (5) of new law, Ministry of Labor and Social Security may reject the work permit applications  in the case of a negative opinion presented by the Ministry of Interior

It is noteworthy to state again here that Law no: 6458 does not change the article 12 (2) which allow foreigners to make inland applications. However by considering above amendments, there is no doubt there will be series of harmonization amendments in the Law no: 4817 in the future days.

[1] Law No. 6458 Date of Enactment: 04.04.2013 Published in the Official Gazette 0n 11 April 2013, No.28615

[2] Law No. 6458, Art. 123

[3] According to article 15 of new law foreigner applicants should have passport valid for at least 60 days beyond requested visa period.

[4] Law No. 6458, Art. 27

[5] Law No. 6458, Art. 27

[6] Regulation on the Implementation of the Law on Work Permits for Foreigners, Published in the Official Gazette 0n 29 August 2003, No. 25214,Art. 55

[7] See Law No. 6458, Art. 61

[8] See Law No. 6458, Art. 62

[9] See Law No. 6458, Art. 62

[10] Law No. 5683 Date of Enactment: 15.07.1950 Published in the Official Gazette 0n 24 July 1950, No.7564

[11]Current version of Art. 12(1) of law on Work permits of Foreigners provides that “Foreigners residing out of Turkey make their working permission applications to the Republic of Turkey representations in the country where they are. The representations forward these applications directly to the Ministry. The Ministry assesses the applications in accordance with the 5th article having taken the opinions of the relevant authorities; gives working permission to the foreigners whose situation permission certificate, are obliged to request visa to enter the country within the latest ninety days from the date of taking this certificate, to apply to the Ministry of Interior Affairs to take residence permission within the latest thirty days from the date they have entered the country is deemed appropriate. This permission is valid only when the required working visa and residence permission is taken. The foreigners, who have been issued working permission certificate, are obliged to request visa to enter the country within the latest ninety days from the date of taking this certificate, to apply to the Ministry of Interior Affairs to take residence permission within the latest thirty days from the date they have entered the country.”

 

 

2 Responses

  1. molly

    i am wondering what the work status should be of a foreign person who owns a limited sirket

    • A foreigner owning Limited Liability Company ( Ltd. Sti) might be eligible for independent work permit ( if the specific conditions are met) or might be granted with work permit as a “partner” of the company.

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