One of the obstacles most frequently encountered at airports and land border gates is that a passenger who cannot pass passport control is put back on the aircraft and returned to the country from which he or she came. That measure does not stand alone; a Ç-138 restriction code is entered on the person’s record and the foreign national becomes unable to cross the border even if he or she now fully satisfies the conditions of entry. In practice this code is known as the INAD passenger code.
The practical consequence of the code is an entry ban of up to five years. Rather than waiting for the record to be deleted of its own accord, the administrative and judicial remedies must be used in time and in a reasoned manner. In this note we address the circumstances in which the Ç-138 code is issued, the routes that may be followed to have it removed, the periods attached to them and the likely cost of the process.
What Does the Ç-138 Code Mean?
Ç-138 is a restriction record established in respect of foreign nationals whose requests to enter the country are repeatedly refused. For as long as the record appears in the system, it is that code, rather than the discretion of the officer at the border gate, that is directly determinative.
Persons who, on the check carried out at the border gate, are found not to satisfy the conditions required for admission to the country, or who are not permitted to pass the border police assessment or the passport control point, are characterised as inadmissible passengers. Where that characterisation occurs once or more than once, a Ç-138 code is issued in respect of the foreign national concerned.
The Purpose for Which the Code Is Issued
The function of the code is to prevent the entry into Türkiye of a foreign national who has fallen into the position of an inadmissible passenger for up to 5 years. The measure therefore produces a prospective ban on the basis of a past event.
A common misconception must be mentioned at this point: even where the person has, at a later date, assembled all the attributes required for entry, such as a valid visa, sufficient financial means and proof of accommodation, entry is refused for as long as the restriction code on the record persists. The precondition for being able to travel again is therefore that the INAD record be removed by legal means.
How Is the Ç-138 Code Removed?
There are two routes to deletion of the record: lodging a reasoned objection with the competent administrative authority, and bringing an action for annulment before the administrative court. The objection route is not a precondition for bringing an action; nevertheless, since it produces tangible results in practice, it is most often attempted first. The reverse order is not, however, possible: once an action for annulment has been brought, an administrative objection may no longer be lodged in respect of the same act.
The steps relating to removal of the INAD record are set out in detail under the headings below. An assessment covering all restriction codes and examining the removal process in full may be found in the note entitled “restriction codes for foreign nationals and the action for removal of a code”.
In applications seeking removal of the entry ban and of the restriction record, the factor that genuinely shortens the process is the file being constructed correctly from the outset; it is therefore important to obtain support from a lawyer experienced in the field of immigration law.
Deletion of the Record by Administrative Objection
A foreign national whose entry is prevented on account of the Ç-138 code may apply to the competent authority and request the removal of both the code and the ban. That request is addressed to the Presidency of Migration Management by a pleading in which the grounds are clearly set out.
The application must be made within 60 days, beginning on the day following the day on which the code was served on or became known to the person concerned. Requests submitted after that period has expired are met with refusal.
Recourse to this route before bringing an action for annulment before the administrative court is not mandatory. An objection is nevertheless advisable, both because it may produce a result in practice and because a decision of refusal given by the administration makes the calculation of time limits easier.
Where the request submitted to the Presidency is refused, where no reply at all is given within 30 days, or where the reply given is of an indeterminate nature, the route of an action for annulment before the administrative court is opened.
Action for Annulment Against the Restriction Record
The second legal option open to a foreign national who is not admitted to the country on account of the INAD code is to bring an action for annulment before the administrative court. In that action, standing to be sued lies with the Presidency of Migration Management.
The time limit for bringing the action is 60 days, running from the day following the day on which the code was served on the foreign national. Where an objection was lodged with the competent authority before the action, the days elapsing up to the moment the objection was made are also counted within that period.
A concrete example clarifies the matter: suppose that the notice of objection is submitted on the 10th day following service. The administration may reply on any day of the 30-day reply period, or it may give no reply at all, in which case the request is deemed to have been implicitly refused. In both of those scenarios, the action may be brought within the remaining 50 days. As can be seen, while the period elapsing up to the objection is included in the calculation, the time used by the administration to reply is not taken into account.
Bringing an action for annulment of the Ç-138 record does not of itself suspend the implementation of administrative acts. A foreign national who wishes the acts not to be carried out while the proceedings are pending must submit a request to that effect to the court in the pleading. If the court is satisfied that the conditions for a stay of execution are met, the measures based on the code are suspended until the action is concluded.
Where the request for annulment is refused, recourse may be had to the appeal remedy. The decision to be given by the regional administrative court is final, and no appeal on points of law may be made after that stage.
For a comprehensive examination in which all restriction codes are addressed one by one, reference may be made to the note entitled “restriction codes for foreign nationals and the action for removal of a code”.
Entering the Country with an Annotated Visa
Where a foreign national in respect of whom a Ç-138 code has been issued has been able to obtain an annotated visa, he or she may enter the country for the period of validity of the visa, even if a 5-year entry ban or a deportation decision exists.
An annotated visa is an exceptional type of visa granted at the discretion of the administration in particular situations such as receiving treatment, education and family reunification. The application is made to the Turkish diplomatic missions in the country where the foreign national is located. The details of the subject are addressed in the note entitled “annotated visa”.
Action for Annulment Against a Deportation Decision
Since a restriction code is a measure limiting a foreign national’s freedom of movement, a deportation decision may also be taken within the framework of the same event. The foreign national has the right to bring an action for annulment against the deportation decision served on him or her within 7 days of service. The action must be brought before the administrative court of the place to which the governorship that issued the decision is attached.
An action seeking removal of a deportation decision must be brought at the earliest possible moment within the 7-day period prescribed by law. This is because the administration is able to complete the deportation measures after serving the decision and may remove the person from the country without waiting for the end of the objection period.
In an action seeking annulment of a deportation decision, the claim need not be confined to that decision alone; removal of the restriction code may also be requested in the pleading. If the court concludes that the claims put forward are legally well founded, it will order the annulment of both the deportation decision and the code.
In these actions, scrupulous compliance with the statutory time limits and swift action are decisive. The pleading must in addition be supported by concrete legal grounds. Otherwise, the risk of the application being refused arises and the way is opened for the foreign national to be deported. Given the technical structure of the process, it will be appropriate to obtain advice from a lawyer practising in this field.
The time limits, procedural rules and other matters requiring attention in an action for annulment of a deportation decision are explained in detail in the note entitled “how is a deportation decision removed?”.
Objection to an Administrative Detention Decision
An administrative detention decision may also be applied in respect of persons against whom a deportation decision has been given. Foreign nationals subject to such a decision are held under detention in removal centres. Persons wishing detention to be ended and to leave the centre must lodge an objection.
The objection is addressed to the criminal judgeship of peace at the premises of the governorship where the decision was taken, or at the place where the foreign national is in fact held.
Details on the subject may be found in the note entitled “objection to an administrative detention decision in order to leave a removal centre”.
How Long Does the Process Take to Complete?
Objections made to the competent authority for deletion of the Ç-138 record are generally decided within 1 to 3 months. Actions for annulment brought seeking removal of the code and of the entry ban, on the other hand, are concluded on average within about 1 year.
Recourse to appeal following dismissal of the action is naturally a factor that lengthens the process. Beyond this, failure to set out the grounds with sufficient clarity, deficiencies in the documents submitted to the file and the heavy workload of the authority applied to are also among the principal reasons for an increased waiting period.
Court Fees and Litigation Costs
In an action concerning removal of the Ç-138 code, the fees and expenses stand at approximately TRY 4,000. That figure has been determined on the basis of the 2023 data published by the competent authorities. The amount payable on an individual application to the Constitutional Court together with a request for an interim measure has been set at TRY 2,220.60.
The Court with Subject-Matter and Territorial Jurisdiction
In disputes concerning removal of a restriction code, subject-matter and territorial jurisdiction lie with the Ankara administrative courts. By contrast, in actions to be brought seeking annulment of deportation decisions issued on the basis of the code, the administrative court in the province where the governorship that issued the deportation decision is located has subject-matter and territorial jurisdiction.
Conclusion
In applications made against the restrictions arising from the Ç-138 code and against deportation and administrative detention decisions, failure to comply with the procedural rules results in the request being refused without the merits being examined. In that event, the foreign national remains unable to enter the country for 5 years. Whether the code and the deportation decision can be removed as swiftly and by the correct route therefore depends on the legal support obtained at the outset of the process.
Independent Legal Assessment
A significant proportion of the cases lost in files concerning an INAD record are lost not on the merits but through errors of time limits and procedure. Inability to document the date of service, an incorrect calculation of the period between the objection and the action, or the omission of a request for a stay of execution from the pleading altogether are deficiencies capable of affecting the outcome on their own.
In practice, it is also overlooked that the restriction code and the deportation decision are acts independent of one another. Where it is not taken into account that these two acts are subject to different regimes of time limits and to different courts having jurisdiction, even an action brought in time may be dismissed on jurisdictional grounds. When the road map to be followed in a specific case is being determined, the following points should be given priority:
- Recording the moment at which the code was served or became known and calculating the 60-day period accordingly
- Making the choice between an administrative objection and a direct action having regard to the urgency of the case and the state of the documents
- Including a request for a stay of execution in the pleading from the outset
- Where a deportation decision also exists, treating the 7-day period as the priority calendar and assessing whether the two claims may be combined in the same pleading
- Where administrative detention has been applied, pursuing the objection to the criminal judgeship of peace in parallel
- Where a ground such as family reunification, treatment or education exists, separately considering the annotated visa option
Independent Legal provides advisory services and conducts litigation in disputes arising from immigration law, including the removal of restriction codes, actions for annulment against deportation decisions and objections to administrative detention.