In the system governing the right of foreigners to reside in Türkiye, residence permits are as a rule tied to a specific purpose of stay. The humanitarian residence permit, by contrast, sits outside that scheme. Set out in Article 46 of the Law on Foreigners and International Protection No. 6458, this type of permit was designed by the legislature as an exception; it is laid down that it may be accorded only in the limited situations enumerated in that article. The ordinary course is for the foreigner to apply for one of the other types of permit corresponding to their purpose of stay.
The name of the permit also explains its function. The interest pursued here is the existence of a situation that makes the person’s presence in Türkiye necessary on humanitarian grounds. By way of example, where a person who has requested international protection must continue to remain in the country while the procedures for sending them to a first country of asylum or a safe third country are ongoing, the grant of a humanitarian residence permit for that period comes into question. It cannot be said, however, that every request will have a favourable outcome; the administration may also refuse the application.
The status of a foreigner present in the country under this permit is not permanently locked in; where the conditions arise, they may transfer to another type of permit. A person who marries a Turkish citizen and who also satisfies the other criteria required by the law may transfer to a family residence permit. This freedom has a limit, however: time spent under a humanitarian residence permit does not give rise to entitlement to a long-term residence permit. Below we address the cases in which the permit may be granted, the conduct of the application, the regime governing transfers and the legal avenues to be pursued against unfavourable decisions.
In What Cases May a Humanitarian Residence Permit Be Granted?
Article 46 of the Law determines exhaustively the situations in which the permit may be accorded. The cases envisaged in that article may be grouped under the following headings:
- Where an urgent necessity, or the protection of the country’s interests, of public order and of public security, makes the foreigner’s entry into the country and stay here necessary, a permit may be issued. In this scenario a further precondition is required: the person must have no possibility of obtaining one of the other types of permit by reason of circumstances preventing the grant of a residence permit. What is meant here are the short-term residence permit, the student residence permit, the family residence permit and the residence permit for victims of human trafficking.
- Where the best interests of the child so require, the permit may be issued not only in respect of the child but also, together with the child, in respect of their mother and/or father.
- Where the departure from the country of a foreigner in respect of whom a deportation decision or a ban on entry into Türkiye exists cannot in fact be effected, or where their leaving is not considered possible, a permit may be accorded to that person.
- Foreigners in respect of whom no deportation decision may be taken under Article 55 of the Law may also benefit from this permit.
- Recourse may be had to the courts against deportation decisions, against the non-admission of an application for international protection status, and against decisions concerning the withdrawal of an application or its being deemed withdrawn. A foreigner who takes this course may remain in the country under a humanitarian residence permit until the process is concluded.
- For as long as the procedures for sending an applicant for international protection to a first country of asylum or a safe third country continue, it is possible for the person to obtain a right of residence under this permit.
- The Law has also provided that a humanitarian residence permit may be granted in extraordinary circumstances. It has not, however, been explained what is to be understood by extraordinary circumstances; the assessment will therefore be made within the framework of the particular circumstances of each dispute.
To Which Authority Is the Application Made?
Pursuant to Article 46 of the Law, requests for a humanitarian residence permit are addressed to the provincial directorates of migration management operating within the governorships. The directorate is not solely competent in the formation of the decision; the permit is issued after the approval of the Ministry of Interior has been obtained.
The same requirement of approval applies to the termination of the permit. When the conditions rendering the grant of the permit necessary cease to exist, the governorships cancel the permit, subject to the approval of the Ministry, and do not proceed to extend it.
Transfer Between Residence Permits
A foreigner’s reason for being in the country may change over time. Where the ground on which the existing permit rests ceases to exist, or a new ground arises, the person may transfer to the type of permit that corresponds to their new purpose of stay. A foreigner holding a student residence permit residing under a family permit after graduation, and then obtaining a long-term residence permit at a subsequent stage, may be cited as examples of such transfers.
In similar fashion, a foreigner present in the country under a humanitarian residence permit may transfer to a family residence permit where they marry a Turkish citizen and also satisfy the other conditions. Marriage to a Turkish citizen may produce consequences not only as regards the family residence permit but also, where the statutory conditions arise, as regards the acquisition of Turkish citizenship through marriage. By contrast, the law has introduced a specific restriction in respect of the humanitarian residence permit: under Article 42, those remaining in the country under this permit are not accorded the right to transfer to a long-term residence permit.
Obligation to Register with the Address Registration System
The law lays down a number of obligations for foreigners who obtain a humanitarian residence permit. Foremost among these is the obligation to register with the Address Registration System (AKS). The permit holder must complete that registration within twenty working days at the latest from the date on which the permit was granted.
Grant, Extension and Cancellation of the Permit
Procedures concerning the humanitarian residence permit are initiated at the request of the Directorate General or of the governorship. The governorship is obliged to assess, throughout the period of validity of the permit, whether the conditions underlying the permit continue to exist, doing so on its own initiative, that is, of its own motion.
When the conditions rendering the permit necessary cease to exist, the governorship cancels the permit, or does not extend it, in line with the approval of the Ministry. The governorship must notify the foreigner of that cancellation or non-extension decision at least fifteen days before the residence permit period expires.
Remedies Against Refusal and Cancellation Decisions
The refusal by the governorship of a humanitarian residence permit request, or the cancellation of an existing permit, is by its legal nature an administrative act. That characterisation also forms the basis on which an action for annulment may be brought against the act in question.
Before resorting to litigation, it is possible to object to the refusal or cancellation decision by applying to the administration that established the act. Where the administration remains silent in the face of that application, an action for annulment may be brought within thirty days before the administrative court with territorial jurisdiction.
Court with Subject-Matter and Territorial Jurisdiction
In actions to be brought against decisions refusing a humanitarian residence permit application or an extension request, or cancelling the permit, subject-matter jurisdiction lies with the administrative courts. What is decisive as regards territorial jurisdiction is the place where the administrative authority that issued the decision is situated. In disputes of this kind the action must therefore be brought before the administrative court of the place where the governorship that established the act is situated.
Frequently Asked Questions
Is representation by a lawyer mandatory in administrative proceedings?
The rule under Turkish law is that the parties may defend and represent themselves in person before the courts; save for limited exceptions, no obligation of representation by counsel is prescribed. Disputes heard before the administrative courts also fall within the scope of that rule.
Nevertheless, the scattered and technical structure of administrative law legislation, together with the short and strict time limits laid down in the Administrative Procedure Act No. 2577, may give rise to consequences that are difficult to remedy, both as to form and as to substance, where the process is conducted by persons who are not lawyers. For that reason it is appropriate to obtain the opinion of a lawyer practising in the field of administrative law before any step is taken.
What exactly is a humanitarian residence permit?
It is the type of residence permit accorded to foreign nationals whose presence in Türkiye has become necessary on the humanitarian grounds enumerated in the Law on Foreigners and International Protection No. 6458.
For what period is the permit issued, and can it be extended?
It is issued for periods of no more than one year at a time; no upper limit is prescribed as regards the number of extensions.
Is there a special practice in respect of Ukrainian nationals?
As a result of the outbreak of war between Russia and Ukraine in 2022, thousands of Ukrainian nationals came to Türkiye. Following that development, a practice was adopted of granting a humanitarian residence permit to all Ukrainian nationals arriving in the country. The Ministry wrote to the provincial directorates of migration management and resolved that facilities be afforded to Ukrainian nationals unable to return to their country because of the war.
Independent Legal Assessment
Contrary to what its name suggests, the humanitarian residence permit is not a broad protective mechanism but an exception narrowly framed by the law. A significant proportion of the problems encountered in practice stems from applications not being reasoned in a manner consistent with that exceptional character. Setting out clearly in the application which case the request is based on is the most effective step for narrowing the administration’s margin of discretion. It should also not be overlooked that the conditions taken as the basis for granting the permit are monitored by the governorship of its own motion, and that the permit may be terminated once those conditions cease to exist.
Where a refusal or cancellation decision is encountered, the management of time limits becomes decisive. The choice between resorting to an objection and bringing an action directly must be made according to the nature of the particular case and the documents available. In mapping out the course of a dispute, the following headings come to the fore in particular:
- Stating concretely in the application which case under Article 46 of the Law the request is based on
- Annexing to the file in full, at the time of application, the documents and records supporting the humanitarian ground
- Scheduling the obligation to register with the Address Registration System within twenty working days
- Planning status over the medium term with regard to the bar on transferring to a long-term residence permit
- Calculating the objection and litigation time limits separately, taking the date of notification as the basis
- Having regard to the fact that the administrative court of the place where the governorship that issued the decision is situated has territorial jurisdiction
Independent Legal provides advisory services and conducts litigation throughout the entire process in the fields of the law of foreigners and administrative justice, from the preparation of residence permit applications through to the conduct of actions for annulment brought against refusal decisions.