As a natural extension of its sovereign authority, every state decides for itself which foreigners may enter across its borders and how long those persons may remain in the country. The picture is no different for Türkiye. A foreigner planning a stay exceeding the period afforded by their visa must obtain a residence permit document, known in practice as a residence certificate. Applications for this document are addressed to the Provincial Directorate of Migration Management; the permit is likewise issued by that same administration. The document affords the foreigner the possibility of residing in Türkiye and is divided into different types according to the need on which the stay is based. Where an application is not granted, the person concerned may, if they consider the decision unlawful, take it before the administrative judiciary.
Entry into the country is as a rule subject to a visa, and the maximum period of stay afforded by a visa is ninety days. If that threshold is to be exceeded, obtaining a residence permit becomes mandatory. The legislature has provided for six separate types of permit: the short-term residence permit, the family residence permit, the student residence permit, the long-term residence permit, the humanitarian residence permit and the residence permit for victims of human trafficking. In this briefing note we address in outline the humanitarian residence permit, which occupies an exceptional position among the types listed.
In the sections that follow we examine the legal framework of the permit, the cases in which it may be granted, its maximum duration, the obligation of address registration, the regime governing cancellation and non-extension, the consequences attached to the permit and the action for annulment to be brought against a refusal decision; we then set out basic information on refugee status and on applications for international protection.
The Legal Framework of the Humanitarian Residence Permit
The humanitarian residence permit is a status accorded to foreigners who satisfy certain conditions required by the law, and it rests on a logic that sets it apart from the other types of permit.
This permit is one of the residence permits falling within the scope of the Law on Foreigners and International Protection No. 6458 and is regulated in detail in Article 46 of that Law. The essence of the provision is as follows: without the conditions required for the other permits being sought, and subject to the approval of the Ministry, it may be granted by governorships for periods of no more than one year at a time and may be extended within the same limit.
Cases in Which the Permit May Be Granted
Qualifying for one of the other types of permit regulated in the Law requires that all of the conditions separately listed for that permit be satisfied. For the humanitarian residence permit the criterion is different: falling within just one of the cases enumerated in Article 46 of the Law is regarded as sufficient, and no further condition is sought beyond that. The cases exhaustively enumerated by the Law are addressed below.
Where the Best Interests of the Child Are at Stake
The notion of the best interests of the child has been addressed in both national and international instruments, and a great many provisions have been adopted with a view to securing those interests. Following that line, the Law No. 6458 has placed the existence of the best interests of the child at the head of the cases in which a humanitarian residence permit may be granted.
In carrying out the assessment, matters such as the age, state of health and mental development of the child are decisive as regards whether the permit is to be accorded.
A permit granted on this ground is not confined to the child alone; the child’s foreign mother and father may also benefit from it. By way of example, where the mother of a child brought to Türkiye from another country for treatment remains with her child at the hospital throughout the treatment, a humanitarian residence permit may be accorded to her as well. This is because the mother must here undertake the care of the child, and the situation is directly connected with the best interests of the child. That said, recourse to this course depends on the mother being unable to obtain any of the other types of permit, since the humanitarian residence permit is exceptional in character.
Inability to Effect Departure Despite a Deportation Decision or an Entry Ban
Where a deportation decision or a ban on entry into Türkiye has been issued in respect of a foreigner but that person’s departure from the country cannot be effected, or their leaving is not considered reasonable or possible, a humanitarian residence permit may be accorded to the person concerned.
Cases Where a Deportation Decision Cannot Be Enforced
Article 55 of the Law No. 6458 enumerates a particular group of persons and lays down that no deportation decision may be taken in respect of them.
Pursuant to Article 57 of the Regulation on the Implementation of the Law on Foreigners and International Protection, a foreigner in respect of whom, after a deportation decision has been taken, it is established that there are serious indications that they would face the death penalty, torture, or inhuman or degrading punishment or treatment in the country to which they would be sent is not deported.
Where it is also impossible to send such a foreigner to a third country, the deportation decision is not enforced and a humanitarian residence permit is granted to the person.
Throughout the permit, the possibilities of sending the foreigner to their own country or to a third country to which they may go continue to be investigated. When the circumstance constituting an obstacle to deportation ceases to exist, the permit is cancelled and the deportation is completed without any need for a fresh decision to be taken.
The same outcome applies in respect of health-related obstacles. If, following a deportation decision, it is established that travel is considered risky for the foreigner on account of serious health problems, age or pregnancy, or that there is no possibility of treatment in the country to which they would be sent while treatment for a life-threatening illness is ongoing, the decision is not enforced and a humanitarian residence permit is granted to them. The person’s state of health is monitored throughout the permit; when the obstacle ceases to exist, the permit is cancelled and the deportation is concluded without any need for a fresh decision.
Recourse to the Courts Against a Deportation Decision
Under Article 53(3) of the Law No. 6458, a foreigner in respect of whom a deportation decision has been issued may apply to the administrative court within seven days of the date of notification. The person making the application must also inform the authority that issued the decision that an action has been brought. Save where the foreigner consents otherwise, the deportation is not carried out during the period for bringing an action or, where recourse has been had to the courts, until the proceedings have been concluded.
As is apparent from the wording of the provision, bringing an action against a deportation decision automatically suspends the enforcement of the decision, subject to certain exceptions. Those exceptions are subparagraphs (b), (d) and (k) of Article 54 of the Law:
Law No. 6458, Art. 54, subparagraphs (b), (d), (k)
“Those who are leaders, members or supporters of a terrorist organisation or leaders, members or supporters of a criminal organisation established for profit,”
“Those who pose a threat to public order or public security or public health,”
“Those who are assessed as being connected with terrorist organisations defined by international institutions and organisations,”
Where foreigners falling within these subparagraphs bring an action against a deportation decision, this does not have the effect of automatically suspending enforcement. Foreigners who fall outside the exceptions listed and who have had recourse to an action against the decision may, however, be accorded a humanitarian residence permit.
Bringing an Action Against a Decision That an International Protection Application Is Inadmissible
Where the cases set out in Article 72 of the Law No. 6458 arise, it is decided that the international protection application is inadmissible. The foreigner may bring an action for annulment against that decision before the administrative court and is permitted to remain in the country until the proceedings are concluded. Within this framework it is possible for a humanitarian residence permit to be granted to the person concerned.
Bringing an Action Against a Decision of Withdrawal or Deemed Withdrawal of the Application
The withdrawal of an international protection application, or its being deemed withdrawn, is governed by Article 77 of the Law No. 6458. A foreigner may bring an action for annulment before the administrative court against a decision that their application is deemed to have been withdrawn. Where such an action is brought, a humanitarian residence permit may be granted to them.
Ongoing Return Procedures to a First Country of Asylum or a Safe Third Country
Where a foreigner has come from a first country of asylum or from a safe third country, their international protection application is not admitted and return procedures are initiated in respect of them. The person concerned may be permitted to remain in the country until those procedures are completed; a foreigner permitted to remain may be accorded a humanitarian residence permit.
Being Among Foreigners Whose Entry and Stay Must Be Permitted
Foreigners whose entry into Türkiye and stay here must be permitted for urgent reasons, or on grounds of the protection of the country’s interests, public order and public security, may also benefit from the humanitarian residence permit. For this, the person concerned must be deprived of the possibility of obtaining one of the other types of permit by reason of circumstances constituting an obstacle to the grant of a residence permit. As we have noted above, this permit is an exceptional status.
The Existence of Extraordinary Circumstances
The Law also accepts that a humanitarian residence permit may be granted where extraordinary circumstances exist. That said, neither the Law nor the Regulation clarifies which cases are to be understood as extraordinary circumstances.
Duration of the Permit
Pursuant to Article 27 of the Regulation, a humanitarian residence permit may be accorded for a period of no more than one year at a time. Extension is possible once the period has expired; however, an extension likewise may not exceed one year. Since one year here denotes a maximum limit, there is no obstacle to the permit being granted for shorter periods.
Obligation to Register with the Address Registration System
Under Article 46(2) of the Law No. 6458, foreigners who obtain a humanitarian residence permit must register with the address registration system within twenty working days at the latest from the date on which the permit was granted.
Cancellation or Non-Extension of the Permit
Article 24 of the Law provides that residence permits may be extended by the governorships; humanitarian residence permits, too, may be extended by governorships within this framework.
Under Article 44(2) of the Regulation, the governorship assesses of its own motion, while the permit is still running, whether the conditions underlying the permit continue to exist, and communicates the outcome to the Ministry. When the conditions rendering the permit necessary cease to exist, the permit is cancelled or not extended by the governorships, subject to the approval of the Ministry.
The governorship is obliged to notify the foreigner of a cancellation or non-extension decision taken in line with the Ministry’s approval no later than fifteen days before the expiry of the residence permit.
A foreigner whose permit is cancelled or not extended in this way is invited to leave the country. Deportation is applied in respect of a foreigner who does not leave of their own volition. For details on the subject, our notes on objecting to a deportation decision may be consulted.
Rights Conferred by the Permit
Being Able to Apply for Permit Types Other Than the Long-Term Permit
Foreigners holding a humanitarian residence permit may, while the permit is running, apply for any type other than the long-term residence permit whose conditions they satisfy.
In addition, where the conditions entitling them to a student residence permit arise, they may benefit from the rights conferred by the student residence permit without transferring to that permit.
Family Residence Permits for Spouses and Children
The spouse and children of foreigners holding a humanitarian residence permit may also obtain a family residence permit. For this, the other conditions laid down in the law in respect of the family residence permit must likewise be satisfied.
Action for Annulment Against the Refusal Decision
Whether a residence permit request will be granted lies within the discretion of the Provincial Directorate of Migration Management, the authority competent in this matter. An application made in the belief that the conditions are satisfied does not of itself mean that the request will necessarily be accepted. Indeed, a request may be refused on various grounds. Among the grounds of refusal encountered in practice are the failure to satisfy the conditions sought, the absence of sufficient financial resources for the period envisaged, and the purpose declared in the application being in fact used for a different purpose.
The refusal and the non-extension of residence permit applications made from within Türkiye are governed by Article 25 of the Law on Foreigners and International Protection No. 6458:
Law No. 6458, Art. 25
“(1) The refusal of a residence permit request made from within Türkiye, the non-extension or cancellation of a residence permit, and the notification of these acts shall be carried out by the governorships. In the course of these acts, matters such as the foreigner’s family ties in Türkiye, the duration of residence, their situation in the country of origin and the best interests of the child shall be taken into consideration, and the decision on the residence permit may be deferred.”
“(2) The refusal of a residence permit request, the non-extension or the cancellation of the permit shall be notified to the foreigner or to their legal representative or lawyer. The notification shall also state how the foreigner may effectively exercise their rights of objection against the decision and their other legal rights and obligations in this process.”
As we have noted above, the granting of the request depends on the will of the administration. Accordingly, both the acceptance and the refusal of an application constitute an administrative act.
The avenue of an action for annulment is open in respect of administrative acts found to be unlawful. Within this framework, a person whose residence permit request is refused may bring an administrative action seeking the removal of the decision within 60 days of the notification of the refusal decision to them. The court with subject-matter and territorial jurisdiction in such an action is the administrative court of the place where the administration that established the contested refusal decision is situated.
Since the cancellation of a humanitarian residence permit by the governorships is likewise an administrative act, it is also possible to bring an action for annulment against that decision before the administrative judiciary.
Where recourse is had to an administrative objection or to the courts against international protection acts established by the administration, applicants are permitted to remain in Türkiye until the process is completed.
In some cases foreign nationals apply to the administration with a view to acquiring Turkish citizenship on various grounds. Where a series of conditions required by the legislation is satisfied, it is indeed possible for foreigners to acquire Turkish citizenship. Nevertheless, in certain instances a citizenship request may be refused by the administration even though the applicant satisfies the conditions laid down in the legislation. An action for the annulment of the decision refusing a citizenship application may likewise be brought before the administrative courts against such refusals where they are considered unlawful.
Refugee Status
Refugee status is one of the international protection statuses and governs only the legal position of persons who have come to Türkiye from Europe for particular reasons.
The definition of a refugee in Article 61 of the Law No. 6458 is, in summary, as follows:
Law No. 6458, Art. 61
“A refugee is a foreigner who, as a result of events occurring in European countries and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of their nationality and is unable or, owing to such fear, unwilling to avail themselves of the protection of that country.”
A stateless person who, as a result of events of the same kind, is outside the country of their former habitual residence and is unable, or owing to such fear unwilling, to return there is likewise regarded as a refugee.
Application for International Protection Status
For the purposes of the Law No. 6458, international protection covers the following persons:
- Refugees,
- Conditional refugees,
- Holders of subsidiary protection status.
A foreigner is placed within one of these statuses following an individual assessment of the conditions set out in the Law on Foreigners and International Protection No. 6458. Looking at a topical example, the legal position of persons who have come to Türkiye collectively from Syria is not that of refugees; those persons hold temporary protection status.
An individual application is essential in order to benefit from international protection status. Applicants first complete their registration by going to the United Nations High Commissioner for Refugees (UNHCR), whose headquarters is in Ankara. There, officials indicate the province in which the Provincial Directorate of Migration Management is to be applied to. The applicant must go to the province indicated to them within 15 days and lodge their application. Once the registration has been taken, an “individual interview” concerning the international protection request is conducted, and in that interview the application is addressed in detail. After the interview has been completed, the Directorate General of Migration Management examines whether the applicant satisfies the conditions enabling them to benefit from international protection in Türkiye and issues its decision.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative court?
Under Turkish law the parties may defend and represent themselves in person before the courts; save for a few exceptions, there is no obligation to be represented by a lawyer. Nor is there any obligation to be represented by a lawyer practising in the field of administrative law before the administrative courts. Nevertheless, because of the multi-layered structure of administrative law legislation and the short and strict nature of the time limits in the Administrative Procedure Act No. 2577, conducting the process through persons who are not lawyers may lead to errors, both procedural and substantive, that are difficult to remedy. For that reason it is appropriate to obtain legal support before any step is taken in administrative proceedings, which contain detailed rules.
For what maximum period is a humanitarian residence permit granted?
The permit may be accorded for periods of no more than one year; it cannot be granted for a period exceeding one year. Once the period has come to an end, recourse may be had to extension.
Can the holder’s spouse and children obtain a family residence permit?
Yes. The spouse and children of foreigners holding a humanitarian residence permit may obtain a family residence permit, provided that they also satisfy the other conditions required by the law.
What happens if the permit is cancelled or not extended?
In that case the foreigner is invited to leave the country. Deportation is applied in respect of a foreigner who does not leave the country of their own volition.
Are Syrian nationals regarded as refugees?
Refugee status denotes only the legal situation of persons who have come to Türkiye from Europe for particular reasons. Persons arriving from countries outside the European continent cannot be assessed within the scope of this status. Syrian nationals are therefore not regarded as refugees; those persons hold temporary protection status.
How long does a residence permit application take to conclude?
Once the application has been taken up, the process is completed within ninety days. If it becomes apparent that the request cannot be concluded within that period, the administration must inform the applicant.
How and by whom is a humanitarian residence permit granted?
The conditions required for the other types are not sought for this permit. The permit is granted by the governorships upon the approval of the Ministry and for periods of no more than one year at a time. Applications are made to the Provincial Directorates of Migration Management.
Is a humanitarian residence permit granted if one of the other permit types can be obtained?
It is not. The humanitarian residence permit is an exceptional type; where it is possible to obtain any of the other residence permits, there is no question of applying for this permit.
Within what period must an action be brought against a refusal decision?
Since the refusal of an application constitutes an administrative act, the annulment of the act may be sought from the administrative courts. A person whose request is refused has the right to bring an administrative action seeking the removal of the refusal within 60 days of the notification of the decision to them.
If all the conditions are satisfied, is the application necessarily accepted?
No. The authority competent to accept or refuse an application is the Provincial Directorate of Migration Management, and the administration has discretion in this matter. The fact that all the conditions are satisfied does not mean that the request will definitively be accepted.
Independent Legal Assessment
The decisive point in humanitarian residence permit disputes is the exceptional character of the permit. In assessing a request, the administration considers together both whether one of the cases in Article 46 has arisen and whether the applicant has the possibility of benefiting from the other types of permit. The construction of the file must therefore rest as much on demonstrating why the alternative permit routes are closed as on documenting the factual situation that necessitates the permit.
In the judicial process to be pursued against refusal and cancellation acts, the most frequent loss of rights arises from missed time limits. Whether the notification was effected in due form, the date on which the period began to run, and whether the grounds of the act rest on concrete facts must all be examined from the outset. In a concrete file, the following headings in particular should be given priority:
- Documenting the date of notification of the refusal or cancellation decision and calculating the sixty-day time limit for bringing the action accordingly
- Examining the act separately in terms of the elements of competence, form, cause, subject matter and purpose
- Testing whether the grounds stated in the decision are consistent with the material facts in the file
- Arguing whether the administration had regard to the criteria in Article 25, such as family ties, duration of residence, the situation in the country of origin and the best interests of the child
- Expressly raising a request for a stay of execution in the statement of claim in files where there is a risk of deportation
- Fulfilling in good time the twenty-working-day obligations, such as registration with the address registration system
Independent Legal provides advisory services throughout the entire process in disputes arising from foreigners and migration legislation, from the preparation of residence permit applications through to the conduct of actions brought against refusal and cancellation decisions.