The Citizenship Policy Of The Turkish Republic

4 January 2019 0 Comment(s)

Obtaining Citizenship As An Investor In Turkish Law

In the old Turkish law, a regulation enabling to obtain the right for exceptional Turkish citizenship for persons who “bring an industrial plant” to Turkey, who rendered or are thought to render an extraordinary service in “the field of economy” has taken place. In this respect, from the enactment of the Turkish law no.403, it can be said that a legal infrastructure in regard to the exceptional acquisition of the Turkish citizenship of foreigners who invest in Turkey has been established. However, in the initial version of these laws and in the provisions of the regulations concerning the application of the relevant laws, it was left unspecified “which type and amount” of investments would enable to gain the right for Turkish citizenship.

The “investment types and minimum investment amounts” constituting the basis of the exceptional acquisition of the Turkish citizenship, have been defined with Article 27 of the International Labour Law No. 6735 dated 28/07/2016 and the (b) clause which was added to the first subclause of Article 12 of the Turkish Citizenship Law No.5901.

With this regulation; in accordance with Article 31 (1) (j) of the Law No.6458 on Foreigners and International Protection (LFIP) 4/4/2013, foreigners who have obtained a residential permit and their foreign spouses, his/her minor or dependent children or that of their spouses have been included in the groups that can obtain exceptional Turkish citizenship.

In Article 31 (1) (j) of the LFIP, those who do not work in Turkey but make an investment within the scope and amount determined by the council of ministers and their foreign spouses, minor or dependent children or that of their spouses are ranked among the persons that can obtain a short-term residential permit. Within this scope, the council of ministers has defined which investors can obtain exceptional Turkish citizenship with two amendments made on 12/12/2016 and 13/03/2017 in the regulation on the implementation of the Turkish Citizenship Law.

As a result of the relevant amendments:

Investors;

  1. a) that have been confirmed by the Ministry of Economy of having realized a capital investment of minimum 500.000 US Dollars,
  2. b) that have been confirmed by the Ministry of Environment and Urbanization of having purchased property worth minimum 250.000 US Dollars with the condition of annotating to the land registration not to sell these for three years,
  3. c) that have been confirmed by the Ministry of Labor and Social Security of having provided employment for minimum 50 persons,

ç) that have been confirmed by the Banking regulation and Supervision Agency of having deposited an amount of minimum 500.000 US Dollars with the condition of maintained it for three years to a bank operating in Turkey,

  1. d) that have been confirmed by the Undersecretariat of Treasury of having purchased government debt instruments worth minimum 500.000 US Dollars with the condition of maintained it for three years,
  2. e) that have been confirmed by the Capital Markets Board of having purchased a share of real estate investment trust or share of venture capital fund worth minimum 500.000 US Dollars and maintained it for three years,

have been determined suitable for obtaining exceptional Turkish citizenship within the scope of Article 12 (1) (b) of the Turkish Citizenship Law.

As can be seen, it will be possible to grant a residential permit to investors who have invested within the scope and the amount determined in Article 20 (2) of the Regulation on the implementation of the Turkish Citizenship Law and in accordance with Article 12 (1) (b) of the Turkish Citizenship Law, the persons in question will be able to obtain exceptional Turkish citizenship. In the same article of the Turkish Citizenship Law, it was laid down as a condition that these persons must not have a situation that constitutes an obstacle to national security and public order and the competent decision maker in this matter was determined as the Council of Ministers upon the recommendation of the Ministry of Interior. In accordance with the explained regulations, foreigners who make a “fixed capital investment” or “investment for employment” within the amounts mentioned in the clauses (a) and (c) of Article 20 on the Regulation on the Implementation of the Turkish Citizenship Law, will be able to apply for exceptional Turkish citizenship when they document their relevant investments through the ministry in question. The application for the acquisition of the exceptional Turkish citizenship within the scope of the investments specified in the clauses (b), (ç), (d) and (e) of Article 20 of the RITCL, will be possible after three years of the realization of the investment.

In accordance with Article 31 (1) (j) of the LFIP and Article 12 (1) (b) of the TCL, beside the foreign investor, their foreign spouses, minor or dependent children or that of their spouses will also be able to obtain a short-term residential permit and are thus among the persons who can obtain exceptional Turkish citizenship. Within this frame, the law maker has proceeded to a different regulation than Article 20 of the TCL where the results of the acquisition of the Turkish citizenship with the decision of the competent authority have taken place. According to Article 20 of the TCL, the acquisition of the Turkish citizenship with the decision of the competent authority, does not affect the citizenship of the spouse. In accordance with the same article, with the condition that the person who has obtained Turkish citizenship holds the custody of the young child and the condition that the spouse agrees, the relevant children can obtain Turkish citizenship depending on the mother or father who has obtained Turkish citizenship.

On the other hand, with Article 12 (1) (b) of the TCL, the scope of the family members who can obtain Turkish citizenship depending on the investor has been enlarged. According to this, the exceptional acquisition of the Turkish citizenship of the foreign investor, will also result in the exceptional acquisition of the Turkish citizenship of the “foreign spouse” and “the children of the spouse” of the investor. Apart from that, the scope of the term child has been enlarged to comprise also the ”dependent” children besides the minor ones. It has to be noted that minor children have been determined in the nationality law as persons under the age of eighteen, but no definition of depending children has been made. In the other hand, the relevant term is accepted to be used in the doctrine for minor children who need the care, help or support of their parents economically or who have a physical (corporal or mental disorder). In addition to this, it will not be expected to fulfill the conditions specified in Article 20 (2) of the RITCL in regard to the exceptional acquisition of the Turkish citizenship of the relevant family members.

 

However, regarding the difficulty of fulfilling the conditions stated in Article 20 of the RITCL in respect to minor and dependent children and the illogicalness of looking for the fulfillment of these conditions in every family member separately, it was evaluated in the doctrine that the law maker accepted all of them as a sort of “an individual immigrant cleared of ancestry and culture”.

On the other hand, in Article 12 (1) (b) of the TCL, the condition of having obtained a short-term residential permit within the scope of Article 31 (1) (j) of the LFIP has been set in order for foreign investors to be able to apply for the exceptional acquisition of the Turkish citizenship. In accordance with the fifth clause added to Article 27 of the International Labour Law and Article 31 of the LFIP, a short-term residential permit for investors can be granted according to the judgment of the administration for maximum five year periods in Turkish law. In this context, in order for the acquisition of the Turkish citizenship, the short-term residential permit has to be valid during the application for the citizenship and does not have to have reached its date of expiration. At this point it is of importance at which moment the investor with short-term residential permit can make an application for the exceptional acquisition of the Turkish citizenship within the scope of Article 12 (1) (b) of the TCL. The answer of this question will set forth if the investor has to be present in Turkey de facto in order to obtain the Turkish citizenship exceptionally.

It has to be noted that in Article 12 (1) (b) of the TCL and Article 31 (1) (j) of the LFIP, no time limitation to be present in Turkey de facto for investors who have a short-term residential permit is found in order to obtain Turkish citizenship exceptionally. On the other hand, it was decided in Article 33 (2) of the LFIP that the method and principles with respect to the annulment regarding the staying abroad of the persons with a short-term residential permit will be organized with a regulation. In Article 104 29 (1) (c) of the LFIP Regulation, the staying abroad of more than 120 days in total apart from obligatory community service, duty, educational or health reasons, is accepted as the annulment of the short-term residential permit and its non-prolongation.

A contrario to the provision, it is possible to reach the conclusion that the short-term residential permits of foreign investors who have stayed less than 245 days in total in Turkey de facto within the last year will be annulled and thus they will not be able to apply for Turkish citizenship exceptionally. It is of use to explain which effect this result will have regarding the investment types stated in Article 20 (2) of the RITCL.

As mentioned above, making an application in order to gain Turkish citizenship exceptionally within the scope of the investments stated in the clauses (b), (ç), (d) and (e) of Article 20 (2) of the RITCL, will only be possible after three years of the investment. When this provision is assessed together with Article 29 (1) (c) of the LFIP Regulation, the acquisition of the Turkish citizenship of the investors in question will be possible with the condition of being present in Turkey de facto for 245 days minimum within the three-year-investment-period. Similarly, if applied in order to obtain Turkish citizenship exceptionally “one year after” having obtained a short-term residential permit, investors who have invested in fixed capital investments or have invested for employment in an amount stated in the clauses (a) and (c) of Article 20 of the RITCL, have to be present in Turkey de facto for minimum 245 days within the relevant year.

However, contrary to the clauses (b), (ç), (d) and (e) of Article 20 (2) of the RITCL, with regard to the investments stated in the clauses (a) and (c), it is also possible for the relevant investors to apply in order to obtain Turkish citizenship exceptionally “right after” having obtained a short-term residential permit since no minimum time period was mentioned. As for our opinion, in the case of this last possibility, investors within the scope of the clauses (a) and (c) of Article 20 of the RITCL will be able to apply for citizenship without being present in Turkey de facto after having obtained the short-term residential permit.

Within the defined context in Turkish law, in regulations within the scope of the clauses (a) and (c) of Article 20 of the RITCL, the motive of increasing financial gain has been preferred to the object of establishing a close relationship between the individual and state and society as seen in some state practices of comparative law. This result that can be considered reasonable with a financial point of view in our opinion, does not serve the purpose of establishing a real dependence between the foreign investor, the Turkish government and society that the nationality law necessitates.

Lastly, as accepted by almost every state in comparative law, also in Turkish law the condition of “not bearing a situation that could be an obstacle to national security and public order” was laid down. It has to be noted that the research made by the relevant institutions regarding national security and public order in Article 72 (5) of RITCL, is basically linked to actions about crimes within the scope of the Turkish Criminal Code No.5237 and the Anti-Terror Law No. 3713.

In fact, for the determination of the proper implementation of the national security and public order condition with respect to obtaining citizenship by investment, it is of great importance if criminal action is taken against the relevant investor or their spouses and children or if there is a certain crime in the state of origin or a third country besides the criminal actions in Turkish law. Nonetheless, in Article 20 of the RITCL, no document enabling such a research was demanded by persons who want to obtain Turkish citizenship exceptionally.

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