On Aug. 13, 2016, Law No. 6735 on the International Labor Force was published in the Official Gazette. The law makes important changes to the work permit system in Turkey and outlaws the existing Law No. 4817 on Work Permits of Foreigners.
The new law will be the main legislation regulating non-Turkish citizens’ entry into Turkey’s labor market. The new law is not as procedural as its predecessor. Rather it regulates foreigners’ entry into the Turkish labor market in a more extensive and disciplined way. Although there is no significant change in terms of work permit/visa procedures, some flexibilities for specific categories of professions are introduced in different sections of new law.
One of the main motivations behind the introduction of a new law for the management of international labor immigration is to introduce an effective tool to achieve the right balance between the protection of local employment and the relaxation of barriers to high-skilled foreign labor. In that sense, on the one hand the new law takes the different realities of various sectors in the Turkish labor market into account, while on the other hand it aims to be an effective, transparent and predictable legislation that reduces uncertainties in front of foreign investment. However, it is remarkable to note that in the new Law on the International Labor Force, although foreign labor is defined in a more comprehensive way, the discretionary power of the Labor Ministry is still behind the wheel.
One of the most important innovations of the new law is the introduction of a new international labor force policy for Turkey: A selective policy toward managing which immigrants will enter the Turkish labor market. As per Article 4 of the new law, a Turkish International Labor Force Policy Council will be established to define the country’s international labor force policy. Additionally, Article 7 (7) of the new law mandates the Labor Ministry to define criteria for the establishment of a points-based system in the assessment of work permit applications.
It should be noted that the new law adopts a hybrid labor immigration system: Both employer-led and points-based system features are underlined in the respective articles of the new law. In this regard, a new type of work permit is initiated. As per Article 2, a Turquoise Card could be granted to foreigners as an indefinite work permit. The Turquoise Card would be granted through the recommendation of the Turkish International Labor Force Council by considering several factors such as the education level of the applicant, their professional experience, their contribution to science and technology, and the impact of activities and investments in Turkey on the economy and employment.
The new rules on posted or seconded foreigners are among the most welcomed and long-awaited labor immigration tools introduced by the new law. Unlike existing international treaties on social security or double taxation, there was no specific recognition of temporary international seconded workers under any Turkish legislation. Thus, even for a temporary period of time, an international assignee was regarded as a full-time permanent employee under Turkish law. The new law introduces a new concept of cross-border service provider: A foreigner who lives in Turkey temporarily to render any service and is paid by a source within or outside Turkey. Although posted or seconded workers are recognized within the scope of new law, the rules and procedures regulating their entry into the Turkish labor market are not clearly defined by the International Labor Force Law. The implementation regulation of the new law in the coming days will surely shed more light on how seconded and posted workers will be regulated.
Following points are the main features of the new law regarding Work Permits of Foreigners.
1. Scope of Law
Article 2: In addition to foreigners who are seeking to work or currently working in Turkey, new law applies to those foreigners who will enter to the Turkish Labor Market for occupational training, internship and cross border service.
2. New Tools & Concepts
Article 3 (f) - Cross Border Service Provider: Foreigners who stays in Turkey temporarily for rendering any service and paid by an employer outside or within Turkey.
Article 3 (ğ) - Turquoise Card: A document grants right to work for indefinite period of time to the foreigners and resident permit right to his/her spouse and dependent children. As per article 11, Turquoise card might be granted for a transition period, first three years. The application for extension should be filed within 180 days before or in any case before the expiry date of the Turquoise card. Turquoise card, then, might be extended for indefinite period of time.
Article 3 (i) - Authorized Intermediary Institution: An Intermediary Institution, qualifications and terms of references are determined by regulation and authorized by the Ministry of Labor.
Article 4 International Labor Force Policy Council: Advisory Council defines Turkish International Labor Force Policy and consists of Undersecretary of the Ministry of Labor and Social Security, undersecretaries of the European Union Affairs, Foreign Affairs, Economy, Internal Affairs, Development Culture and Tourism Ministries and the Director General of International Labor Force under the presidency of the Minister of Labor and Social Security.
Article 8 - Preliminary Permit: Foreigners who will work within the scope of professional services, health and education sectors are required to get a preliminary permit from relevant ministries for the assessment of their work permit applications. As per relevant paragraphs of article 8, Ministry of Health, Ministry of Education, Ministry of Science, Industry and Technology and Higher Education Institute are the responsible authorities for issuing preliminary permit. Work permits for those foreigners who will work within mentioned sectors and professions are granted by Ministry of Labor and Social Security in line with preliminary permits grated by relevant ministries.
Article 15 - Public Benefit Work: Foreigners with valid residence permit might be granted with work permit exemption for their volunteer works in the Public Benefit Associations and Foundations defined under law no 5253 on Associations and under Law no 4962 on amendment of Certain Laws and Granting Tax.
3. Types of Work Permits
Under new law, like former Law on Work Permit, mainly work permits might be granted for definite period of time and indefinite period of time.
Work permit with definite period of time valid at most one year term. Work permit may be extended up to two years to work in the same job for the same employer. At the end of two years extension, work permit may be extended at most three more years to work in the same job for the same employer. Foreigner who have a total legal working period of 8 years in Turkey or the Long Term Residence Permit holders might be eligible for work permit for indefinite period of time An independent work permit for a definite period of time in line with Turkish International Labor Force Policy might be granted to the foreigners who shall work independently on him/her own behalf and account. Additionally, under new law, shareholder managers of limited companies, shareholder members of board of Joint Stock Companies and shareholder managers of Commandite Companies are required to obtain work permit.
4. Assessment Procedure of Work Permit Applications
Article 7 of new law, outlines the assessment procedure of work permit and work permit extension applications. Accordingly work permit applications can be made directly to the Ministry of Labor and Social Security in Turkey of Foreigners residing outside the Turkey can make their work permit applications to the Turkish Embassies and Consulate Generals in their home countries. Work and Residence Permit applications can be made by Authorized Intermediary Institutions as well. Extension applications should be filed within 60 days before or in any case before the expiry date of work permit. Work Permit applications are assessed in accordance with International Labor Force Policy. By the virtue of new law, Ministry of Labor is empowered to define criteria for the establishment of point based system in the assessment of work permit applications in line with Turkish International Labor Force Policy. Duly applications are finalized by the Ministry at most thirty days. However if Ministry of Labor determines lacking documents in a work permit application file, 30 days term begins with submission date of lacking documents. In the case of failure to complete lacking documents within 30 days after the request date, Ministry revokes the application.
5. Work Permit Exemptions
As it is introduced by law no 6458 on Foreigners and International Protection, Those foreigners who are exempt from work permit requirement should apply for work permit exemption certificate to the Ministry of Labor and Social Security. Work permit applications, exemption applications can be made directly to the Ministry of Labor and Social Security within Turkey or to the Turkish Embassies and Consulate Generals. Although new law does not specify the list of categories of nationals who are exempt from work permit requirement, forthcoming regulation will likely list the specific categories of exemption categories. However last paragraph of article 13 indicates that those cross border service providers for a period of 90 days within 180 days and the non-manager and non-resident shareholders of companies established under Turkish Trade Act might also be exempted from work permit requirements. In the calculation of legal working days in Turkey, periods worked with work permit exemption will not be considered.
6. Exceptional Work Permit
Section IV of the law outlines the main categories of foreigners eligible for exceptional work permits. Accordingly, work permits can be granted exceptionally to following categories of individuals; High skilled foreigners based on their education level, professional experience; Foreigner investors based on their contribution to the science and technology and based on the impact of activities and investments in Turkey to the economy and employment; Nationals of Turkish Republic of Northern Cyprus, Foreigners having Turkish Descent, Temporarily Seconded Foreign Employees, EU Nationals, Conditional Refugees, International Protection Application Holders, Temporary Protection Holders and Stateless Foreigners, Cross Border Service Providers, Personnel of Foreign Missions who do not have Diplomatic Immunity and Foreigners married to Turkish citizens. As introduced in Law no 6458, new law allows foreign students to work in Turkey after having valid work permit. Accordingly Foreigner students who are enrolled in an undergraduate or two years associate programs can start to work part-time in Turkey after completing their first year of study. This restriction is not applicable to foreigner students enrolled in graduate programs. Moreover foreigner graduates of Engineering or Architecture faculties in Turkey or those foreigners graduated from Engineering or Architecture faculties of universities recognized by Turkish Higher Education Institution, after obtaining work permit, might work in Turkey temporarily or in project based work.
New law includes, as its precedent, articles related to validity / invalidity of work permits, grounds for rejection, inspection authority and penal provisions. As mentioned one of the most remarkable changes is its attributions to the Turkish International Labor Force policy in the all procedural steps of a work permit application. Distinctly, new law in its respective articles, regulates work permit and work permit exemption application procedures of family members of officials of Foreign Diplomatic and Consular Representatives. Moreover work permit procedures of the foreigner personnel of the schools, cultural and religious institutions affiliated to Foreign Diplomatic and Consular Representatives is also underlined in the new law. These type applications will be made directly to the Ministry of Foreign Affairs, however work permit will be granted by Ministry of Labor and Social Security upon the positive opinion of Ministry of Interior. Similarly work permit applications of foreigners who will work in Turkey within the scope Law no 3218 on Free Zones, will be made directly to Ministry of Economy.
The new Law on the International Labor Force theoretically brings many new innovations to Turkey’s labor immigration System. Especially after the introduction of the Law on Foreigners and International Protection, the development of a more systematic and flexible system was inevitable for the achievement of a well-founded immigration policy. The establishment of a more selective labor immigration system is no doubt a revolutionary cornerstone in Turkish law in terms of achieving the right balance between protecting the local labor market and removing barriers to the international mobility of labor. The main impact of the new law in terms of procedural efficiency could be discussed in the near future with the introduction of the forthcoming implementation regulation on the Law on the International Labor Force.
Special thanks to Sadık Sözer Çizmeci - A small part of this article was published in Hurriyet Daily News on Aug. 16 2016.