Wednesday, October 27, 2010

Aliens' Right to Work under Turkish Law

Imagine you have a great idea for a business in Turkey. You have discussed it with your partners and friends, not only that but you have done your market research for Turkey, received lots of local advice and encouragement, and finally you have spoken to various banks and financiers.  Everyone seems to be in accord, the idea would work well in Turkey and it would generate a lot of good business.  Now you must deal with the Turkish authorities, so how easy do you think this would be? 


What kind of response can a foreigner expect compared with a Turkish citizen?  Is discrimination likely?  Can foreigners work in any field or profession?  What kind of work permission is required for foreigners and is it easy to arrange? Unfortunately, Turkey does not presently have a single code regulating aliens' rights, so it isn’t easy to answer these questions directly.  In fact, rules and restrictions are covered in more than 70 different laws, which in practical terms, causes certain difficulties in defining the legal status of aliens, especially in areas related to the right to work.

It should be noted that the Turkish Ministry of the Interior, a number of non-governmental organizations, including the law faculties of many universities are currently working on a project concerning the status of aliens in the country, with the intention of combining and simplifying rules related to the right to work, residence and work permits into one piece of legislation. The purpose of this project, which only started earlier this year, is to bring Turkish law into line with EU standards and to ascertain the fundamental principles of the right to work for aliens in the country. The project is still in the early stages, with a consultation procedure underway with contributions from various legal experts, the whole process is expected to take around 2 years.  As this project is still very much in its infancy, we will review the current state of the law in relation to foreigners, identify some of the current issues and offer a few suggestions to improve the situation.


From a constitutional point of view, Turkey seems to have a very liberal system with regard to the rights and freedoms granted to foreigners. Constitutional principles in Turkey establish equality between citizens and foreigners and guarantee the right to work for everyone. However, national regulations have actually restricted the right to work for aliens. Article 10 of the 1982 Turkish Constitution establishes the principle of equality as a general rule and accepts it as a fundamental principle, shared by both Turkish citizens and foreigners. Article 48 of the Constitution extends this to the right to work. Pursuant to this article is the idea that everyone has the freedom to work or establish and conclude business in the field of their choice. The term, “everyone”, used in this general sense under article 10, and with regard to the right to work under article 48, includes both foreigners and Turkish citizens.  From this context, one might think that foreigners had the right to work in any area which they wished and to set up their own companies in Turkey.


However, article 16 of the Constitution states that the fundamental rights and freedoms of aliens may be restricted in a manner consistent with international law. In fact, this article itself seems to provide a guarantee for aliens by giving the criteria of the restrictions in order to prevent legislators from acting in a discretionary way in regard to limitations imposed upon foreigners. Thus, restrictions may be imposed by a statutory law, but must also be in line with international law in order to be valid.  Thus, article 16 seems to provide a strong constitutional guarantee by constraining the legislator from imposing restrictions upon aliens. For example, international law does not allow the denial of an alien's application for work on grounds such as religion, belief, color, ethnic origin or sex. Therefore, restrictions imposed upon those grounds would violate article 16 of the Constitution. On the other hand, it would be possible to require a visa from a foreigner to enter into a country, because international law authorizes states to impose visa requirements. Accordingly, the Turkish legislator could impose a visa requirement because it is in line with international law.  However, to impose a visa requirement by legislation other than statutory law would also violate the Constitution.


In other words, in legal terms, articles 10 and 48 of the constitution put forward the principal rule which establishes equality between foreigners and citizens, while article 16 determines the conditions for putting aside the equality principle for aliens. While articles 10, 48, and 16 provide favorable conditions, in themselves they are not sufficient to guarantee the rights of aliens to live and work in Turkey. This is because Turkish legislators tend to interpret article 16 broadly and insert many restrictive rules for aliens. There are two reasons behind the inefficiency of article 16: firstly, Turkey is not party to international conventions, at both bilateral and multilateral level, which would force it to act in favor of foreigners. If Turkey had several international conventions securing the rights and freedoms of foreigners, the criteria of "being in line with international law" in article 16 would be more efficient. Second, the requirement on "imposing restriction by statutory law" has not stopped the parliament from inserting many restrictive laws on foreigners. As a result of these prevailing tendencies, Turkey has developed a rather restrictive structure for aliens' right to work.


Many professions and working activities are assigned by legislation exclusively to Turkish citizens and as a result, foreigners are often prevented from working in their chosen fields. Another problem is that foreign students are not allowed to work in Turkey.


The lack of consistency in the system of work permits creates lots of problems relating to the rights of aliens to work in Turkey. If they can find a profession or a job which is not forbidden to them, aliens have to obtain a work permit, as in any other country. Requirements for obtaining a work permit and its duration are regulated by the Aliens' Work Permit Law (hereinafter ‘AWPL’), which came into force in 2003 and was formulated in compliance with the relevant European Union standards.


Work permits are issued to aliens by the Ministry of Labour and Social Security. According to AWPL, in order for an alien to obtain a work permit, they have to satisfy three main requirements:  firstly, aliens residing outside of Turkey have to apply for a work permit from a Turkish consular office where they live. These offices directly forward the applications to the Ministry, which evaluates the applications by taking the opinions of related authorities; it then issues work permits to aliens who satisfy the appropriate conditions. Secondly, aliens who obtain work permit certificates have to apply for work visas to enter the country within ninety days after they obtain the certificate. Thirdly, they have to apply for residence permits from the Ministry of the Interior within thirty days after they have entered the country. Accordingly, as a rule, an alien is required to obtain a work permit, and this permit will become effective when they obtain a work visa and a residence permit.


There are four exceptional situations in which the application for a work visa abroad is not required. The first exception concerns aliens who already have a valid residence permit in Turkey, they are not required to obtain a work visa from a Turkish consular office. The second exception includes all aliens who apply for the renewal of their work permits. They do not need to obtain a new work visa if they make an application for renewal 15 days after the duration of their work permit has expired. The third exception covers aliens who are listed in article 2 of AWPL, which are not subject to the requirements imposed by AWPL and they can be employed without a work visa by Ministries and other public institutions based on an authorization given by other laws. Finally, aliens who receive residence permits in Turkey as refugees and asylum seekers are exempted from obtaining work visas in order to get a work permit.


Turkish law introduces four types of work permits. The first category is the work permit for a definite period of time which is given to be valid for at most one year. After a legal working duration of one year, the working permit may be extended up to three years, and after three year the legal working period, the terms of the work permit may be extended for a maximum of further three years. This type of work permit is regulated in line with residence permit in terms of its duration. However, article 5 of AWPL provides that a definite period of time work permit may be granted to the spouse and children of any aliens if they have legally resided with the alien for at least five years. This provision leads to unfair consequences since it means that spouses and children are not entitled to obtain work permit for five years in Turkey.


The second category is known as the work permit for an indefinite period of time. Aliens having been residing in Turkey legally and uninterruptedly for at least eight years or having undergone a total working period of six years in Turkey, may be granted an indefinite time period work permit. However, this type of work permit is not really indefinite since Turkish law does not accept an indefinite residence permit.


The third category is for an independent work permit which may be given by the Ministry to aliens that have resided in Turkey legally and uninterruptedly for at least five years. This type of work permits also lead to unfair consequences since aliens are required to wait 5 years to have the right to work independently.


The fourth category is called the exceptional work permit which is given to aliens whose statuses are mentioned in article 8 of AWKL. There are a number of categories; for example, aliens married to Turkish citizens; and citizens of European Union Countries as well as their spouse and children are classified as aliens who are entitled to have exceptional work permits.


If one considers all the abovementioned points, Turkey has a very restrictive and discriminative structure for foreigners although the Turkish Constitution establishes equality between citizens and foreigners.  Prohibiting foreigners from doing most of the professions and activities is not acceptable from the perspective of human rights. Additionally, a general work ban for students gives rise to illegal employment in Turkey. The prohibitions should be limited to the areas which are related to matters of the internal and external security of the State, and foreign students should be entitled to work, at least on a part time basis under certain conditions. Regarding rules concerning types of work permits, it’s clear that these rules are not formulated in an efficient matter and ignore practicality. An alien who has a definite period of time work permit means that his or her spouse cannot work in Turkey for 5 years. An alien who has an indefinite period of time work permit cannot have indefinite time residence permit. An alien who wants to have an independent work permit would also have to wait for 5 years. Regulating work permits in line with residence permits and removing the 5 year limitations both for spouses and aliens seeking independent work permit are necessary to make the issuance of work permits more efficient and to encourage inward investment in Turkey.

2 comments:

  1. A very succinct and straightforward explanation of the current situation, thank you very much.

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  2. really great information to kindly share with us and want to know more about this....

    ReplyDelete