PRACTICAL INFORMATION ON FOREIGN LAW-1
(Residence Permit, Expulsion, INAD Passenger, Administrative Surveillance, Prohibition of Entry)
Atty.Haldun Barış
After the post-colonial period and technological developments, the borders in the world have stretched and globalization has accelerated. One of the many consequences of this is the increasing need for foreign law. On the other hand, while foreigners’ law should have developed in a developing country such as Turkey, which has hosted migrations in every period of history due to its geographical location, or which is in the interest of foreigners, unfortunately, foreigners’ law has not developed sufficiently in our country. A reform should be made in accordance with the newly changing conditions in the legislation, especially in the IPCP. I recommend that you review the the work titled Reform in IPCPL, which was first published in December 2023 on the subject (edited by Prof. Dr. Sibel Özel, Prof. Dr. Mustafa Erkan, Prof. Dr. Hatice Selin Pürselim)
In this article, I aim to give practical information about foreigners’ law rather than some theoretical discussions and examinations. In the first part of the articles, I plan to address some issues related to real people. These are the issues such as the°residence permit process, some information about opening a bank account, deportation, entry ban, INAD passenger, removal centers, divorce cases, paternity lawsuit, foreigners’ property acquisition, foreigners’ employment contracts .
In the following articles, I plan to address the issues in the context of commercial law-tax law – contract law (foreign company establishment, foreign element contract preparation, territorial authorizationelement in contracts, arbitration, payment methods, recognition-enforcement cases, problems encountered in customs, tax issues, INCOTERMS, international sanctions and banking rules, international air law (civil aviation Transactions, etc.)°etc.).
I aim to write the topics in pieces in order not to keep each of the articles too long. I would also like to state that I wrote these articles within the framework of academic ethical rules, but without academic concern, with the aim of providing practical information. I hope it will be useful to colleagues like me who are still in their early years in the profession or to masters who are new to this field.°
- Residence Permit
When it comes to foreigners’ law, one of the most common transactions in practice is probably the residence permit. First of all, the mathematics of these procedures are quite simple: You make an appointment with the migration administration through the system, collect the documents, go to the appointment day, and deliver them. Keep in mind that you should definitely go to the appointment with the client here because fingerprints will also be taken during the file delivery. You will be given time if you have missing documents. You must complete the missing documents within that time.
In this regard, if you have trouble making ane-application, you can make a “manual application”. This information will come in handy in many places. After the manual or electronic application, an SMS will be sent to the specified phone and the appointment date will be specified.
On the other hand, the main problem in residence permit applications (if we do not count the complexity of migration administrations) is the type of application. Information on the types of applications is regulated in the Law on Foreigners and International Protection No. 6458. The client’s situation should be analyzed well and the correct application type should be selected. It is also important that the foreigner applying for a residence permit does not live in the “closed neighborhood”.
Due to the changing migration policies recently, the rejection rates of short-term residence permit applications are quite high. For this reason, if there is a possibility that there is a belief in migration administrations that your client intends to live in Turkey, I recommend that you do not prefer this type of application. In addition, the Immigration Authorities have also taken a serious look at student residence permits. Again, applications made for Turkish language courses or language learning purposes have been encountered a lot recently.
The foreigner whose residence permit is refused is notified and called to leave the country. A residence permit cannot be applied for within 6 months based on the same reason.
Currently, the most preferred method for residence permits is the application made after the purchase of real estate worth 75,000 USD in metropolitan cities. The important point here is that the°foreign exchange certificate°and the°value of°the real estate°reflect the truth.
- Deportation Decision-INAD Passenger-Removal Centers-Entry Ban
If a foreigner has violated his/her legal stay in Turkey or if there are other reasons, he/she will be deported. At this point, first of all, I would like to explain the following: If a foreigner has violated the legal stay period (visa, residence permit periods), he/she can leave the country by applying voluntarily and taking a time. This prevents the foreigner from being caught at any checkpoint and kept in removal centers. As it is known, the standards in the removal centers are quite bad. In addition, this situation may lead to the result of 8-2/c of the regulation on the implementation of the Law No. 6458.
On the other hand, an expulsion procedure is established against a foreigner who violates the legal stay period and taken to the removal center. If the foreigner wants to make the objections while he is still in Turkey, two separate applications can be made: an objection in the Criminal Courts of Peace regarding his detention at the Removal Center and an annulment case in the Administrative Courts for the cancellation of the deportation process.
2.A. Prohibition of Entry
Before examining these two applications, it should be noted that: If he/she left/was removed from the foreign country, he/she pays a penalty equal to the duration of the violation and is banned from entry according to the duration of the violation. Paragraph 2 of Article 8 of the Regulation on the Implementation of the Law on Foreigners and International Protection No. 6458 on the subject is as follows:
“(2) The procedures for the entry ban are as follows:
- The beginning of the entry ban for foreigners to be deported is the date of exit of the foreigner from the country.
- For foreigners who exceed the duration of their visa, visa exemption, work permit or residence permit by more than ten days and who apply to the governorates to leave Turkey before a deportation decision is taken against them or before this decision is notified to the person concerned, the duration of the ban on entry into Turkey shall not exceed one year, provided that the fees and related penalties arising from the violation of visa, visa exemption or residence permit have been paid, without prejudice to the situation that requires them to be included within the scope of the entry ban for another reason.
- For foreigners who exceed the duration of visa, visa exemption, work permit or residence permit for more than ten days and who come to the border gate spontaneously to exit without deportation decision, entry ban decision may not be taken on the grounds of visa or residence violation, provided that they have paid the fees arising from the violation of visa, visa exemption or residence permit and the penalties to be accrued accordingly, without prejudice to the situation that requires an entry ban for another reason.
- Some or all of the travel expenses are covered by the General Directorate and the necessary data entry is made in order to follow up the subsequent collection of the travel expenses of the deported foreigners. Foreigners who do not pay the travel expenses covered by the General Directorate may not be allowed to enter the country.
- The entry ban is imposed for a maximum of five years. If there is a serious threat to public order or public security at the end of five years, the five-year entry ban can be extended for another ten years at once or separately. However, the duration of the entry ban cannot be more than fifteen years based on the same justification.
- The General Directorate may lift the entry ban without waiting for the expiry of the period when it deems necessary or may allow the foreigner to enter Turkey for a certain period of time by reserving the entry ban.
(3) Due to public order or public security, the admission of some foreigners to the country may be subject to the condition of prior permission at the request of the relevant public institutions and organizations or directly by the General Directorate. Foreigners who are found to be subject to the condition of prior permission in the system are not allowed to enter the country without the positive opinion of the General Directorate. “
If a ban on entry to the foreigner has°been established, a lawsuit may be filed in the administrative courts for the cancellation of the administrative procedure within 60 days . In these cases, positive results can be obtained if there is an irregular transaction. However, if a report has been established on the foreigner regarding public security, the probability of obtaining a result is almost nonexistent. Because foreigners’ law is an area where the°administration is given wide discretion .
At this point, I would like to share the°justification of a lawsuit°I have previously filed and concluded regarding the lifting of the entry ban:
“From the examination of the case file, it was understood that the lawsuit was filed upon the establishment of the two (2) year entry ban of the Istanbul Governorship Provincial Directorate of Migration Management dated 05/05/2022 with the restriction code Ç-113 and the administrative fine of 6.464,00 TL with the code N-135 due to the illegal entry and exit while the plaintiff wanted to leave our country.
According to paragraphs 1 and 2 of Article 9 of the Law No. 6458, which is included in the text above, it is clear that only foreigners who are inconvenient due to public security, public order or public health and foreigners who have a deportation decision can be prohibited from entering the country, and according to paragraph 7 of the aforementioned article, since it is regulated that the entry of foreigners who are subject to administrative fines may be subject to the preliminary permission requirement, it is clear that if there is no determination that an administrative fine is inconvenient in terms of public security, public health or public order or no deportation decision has been taken about them, only an administrative fine cannot be imposed, and these foreigners can only be subject to the preliminary permission requirement.
Since there is no determination that the plaintiff is objectionable in terms of public safety, public health or public order in the dispute and no deportation decision has been taken about the plaintiff in accordance with the person status report, it has been concluded that there is no lawfulness in the transactions subject to the lawsuit, since the plaintiff cannot be banned from entering the country directly due to illegal entry and exit without an deportation decision. “ ISTANBUL 1ST ADMINISTRATIVE COURT DOCKET NO: 2022/6783 DECISION NO: 2023/1632
Before ending the issue of the entry ban, I need to mention some codes related to the entry ban. These codes are restrictions on what foreigners are banned from entering. For example, G-82 code indicates National Security Threat, G-89 code indicates Terrorist Activities, Ç-101, Ç-102, Ç-103, Ç-104 indicates Legal Duration of Stay Violation, and Ç-113 indicates illegal entry.
In this regard, I have to state that there are codes that I cannot understand what they are about recently. When I ask these codes to the authorities at the Immigration Administration, I would like to note here that I could get an answer verbally as “we get about those involved in judicial events”.
Finally, the prohibition of entry does not mean that it is strictly forbidden to enter the country; you°can enter the country by obtaining a annotated visa.
After briefly mentioning the issue of the entry ban, I would like to briefly mention the objections to the deportation decision and removal centers:
2.B. Deportation Procedure
First of all, the deportation process can be appealed to the administrative courts°within 7 days°and a cancellation lawsuit can be filed. If the case is requested with a hearing, it is held with a hearing in accordance with Article 17 of the Administrative Jurisdiction Procedure Law no 2577.
In accordance with the law, applications for deportation must be finalized within 15 days, but due to the density, this period is as long as normal cases.
The foreigner can not be deported from the country until the lawsuit filed against the border is concluded.
2.C. INAD Passenger
INAD passenger is an unwanted/unauthorized passenger to enter the country. It is one of the problems encountered at airports. According to the procedure, it must be sent by the first plane. If the passenger does not have money, the airlines provide credit transactions.
In such cases, it is important that the client understands the transactions made and receives the form. Generally, foreigners panic in such cases and care about having a lawyer with them. Expediting removal is also an INAD passenger’s expectation from the lawyer.
2.D. Administrative Detention Order
Recently, while I was sitting with an acquaintance of a board member from TİHEK, we talked about the status of the removal centers. In my opinion, the standards of removal centers are incompatible with Turkey’s value system. After this little introduction, let’s look at what can be done about the stranger held at the removal center.
The first registration is made about the foreigner taken to the removal center. If you are sure that your client is at the removal center you went to, but his/her name is not recorded, it is necessary to make sure that his/her name is understood correctly first, but if his/her name is correct and he/she still couldn’t be found then he/she is not registered in this case. You can have it checked from the “incoming list” as insistent.
The legal equivalent of keeping a foreigner in a removal center is an Administrative Detention Decision. These decisions can be objected at the criminal courts of peace.The objection period is 7 days.
Unfortunately, there are many differences in practice in this regard. For example, last year, if the deportation process was also sued when the evidence of the house where the foreigner lived and his/her regular life was added to the file, he/she would be evicted by applying other measures (control, etc.) instead of being kept in removal centers during the case. However, this situation has become more difficult recently. Nevertheless, many judicial decisions deal quite well with the situation on the subject. Some of these decisions are as follows:
“Considering the fact that the merchant has an accessible address, it may be disproportionate at this stage for the merchant to remain in administrative custody, and considering that alternative obligations may be imposed on the administrative custody in accordance with Article 57/A of the Law No. 6458 on the applicant, it was decided to accept the request and to abolish the administrative custody decision in accordance with Article 57/6 of the Law No. 6458.” ANKARA 2ND CRİMİNAL COURT OF PEACE DECİSİON NO:2021/7843)
“Although an administrative detention decision was made about the applicant by the Provincial Directorate of Migration Management, it was concluded that the administrative detention measure may be disproportionate when the objector has an accessible address, the health problems and the children in need of the care of the applicant are evaluated together, and that the administrative detention decision should be abolished in accordance with Article 57/6 of the Law No. 6458 by accepting the request, taking into account that alternative obligations can be imposed on the administrative detention in accordance with Article 57/A of the Law No. 6458.” ANKARA 2ND CRİMİNAL COURT OF PEACE DECİSİON NO:2022/1031
“Although an administrative detention decision has been made on the grounds that there is no definitive evidence and signs free of any doubt and that there is no legal right to stay in Turkey, and that there is a risk of escape and disappearance, it has been concluded that there is no concrete evidence that the said foreigner will escape or disappear, and it has been decided that the administrative detention decision of the said person will be removed and released at this stage and the judgment has been established as follows.“ AYDIN 2ND CRİMİNAL COURT OF PEACE DECİSİON NO:2023/1313
“However, when the reply letter of the Provincial Directorate of Migration Management of Çankırı Governorship dated 11/08/2022 and the whole file are evaluated as a whole; it has been concluded and concluded that the period to be spent under administrative detention is legally determined as maximum 6 months, the period spent by the foreign person under administrative detention exceeds 6 months, the exception of this situation is specified in Article 57/3 of the Law No. 6458, there are no exceptional situations in the file content sent to our judiciary, and the expected benefit from the suspicious person’s being under administrative detention can be achieved by assuming obligations to be deemed appropriate, so the current detention situation has been decided as follows.” ÇANKIRI 2ND CRİMİNAL COURT OF PEACE DECİSİON NO:2022/1558
“Considering that there was no judicial or administrative investigation about the matron during the period spent in our country, the criminal element was not seized during the execution of the search, the duration of the matron’s administrative detention, the address of the matron is certain or identifiable, it was necessary to decide on the acceptance of the objection of the appellant’s attorney as follows, since the same purpose can be achieved at this stage by applying alternative measures.” İZMİR 2ND CRİMİNAL COURT OF PEACE DECİSİON NO:2022/6170
I conclude this article, in which I try to give practical information about related issues, by not extending it further. In the next article of this series, I will try to give some practical information on other issues related to foreign law.
