When a foreign national employed in Türkiye under a work permit becomes the subject of a criminal investigation, is detained, or is convicted, the first question is usually whether the work permit protects the person from deportation. The deportation of foreigners who commit crimes is an administrative process that runs separately from the criminal proceedings, and a work permit does not, on its own, provide a guarantee. This article examines the legal basis of deportation decisions, their relationship to criminal proceedings, administrative detention, judicial remedies, and the fate of the work permit under Law No. 6458 on Foreigners and International Protection, Law No. 6735 on International Labour Force, and the relevant case law.
The Legal Basis for the Deportation of Foreigners Who Commit Crimes
Under Article 53 of Law No. 6458, a deportation decision is taken on the instruction of the Directorate General of Migration Management or by governorates on their own initiative. The cases in which a decision is to be taken are listed in Article 54. The provisions most relevant to an allegation of crime are the following:
- A threat to public order or public security (Art. 54/1-d): This is the sub-paragraph the administration relies on most often in practice. Because no specific offence is listed, the administration itself assesses whether the alleged act poses a threat to public order.
- Those who must be deported under Article 59 of the Turkish Criminal Code (Art. 54/1-a): Under Article 59 of Law No. 5237, a foreigner sentenced to imprisonment for an offence is, once the sentence has been served, immediately reported to the Ministry of the Interior so that the case can be assessed for deportation proceedings.
- Those who earn their living by illegitimate means (Art. 54/1-ç) and those who use forged documents (Art. 54/1-c): Depending on the nature of the alleged act, these sub-paragraphs may also come into play.
Holding a work permit does not take a foreigner outside the scope of these provisions. Under Article 12 of Law No. 6735, a work permit stands in for a residence permit; this, however, does not prevent the application of Article 54 of Law No. 6458.
Is a Conviction Required for Deportation?
In the deportation of foreigners who commit crimes, this is one of the most important questions in practice. The wording of the law does not require a final conviction under Article 54/1-(d). The administration may therefore take a deportation decision before the criminal proceedings have concluded. Where there is a conviction, the assessment under Article 59 of the Turkish Criminal Code begins with a report to the Ministry of the Interior after the sentence has been served; a conviction does not automatically result in deportation, and the administration must make an assessment following that report.
In its decision dated 25.05.2022, E. 2020/6944, K. 2022/2760, the 10th Chamber of the Council of State (Danıştay) accepted that a decision of non-prosecution in a criminal investigation does not, by itself, remove the administration’s discretion regarding a foreigner’s stay. That decision, however, concerned a dispute under the repealed Law No. 5683 and based on intelligence information; it is relevant in showing that the outcome of criminal proceedings is not always decisive for administrative acts. The nature and gravity of the alleged act will also be decisive in the administration’s assessment.
Limits of Administrative Discretion: Concrete Information and Documents
In the deportation of foreigners who commit crimes, the administration’s discretion is not unlimited. In its individual application decision of 16.12.2020, No. 2018/6143, the Constitutional Court stressed that it is not sufficient for public authorities to assert in the abstract that a foreigner poses a danger; sufficient and serious information must be submitted to the judicial authorities in light of the circumstances of the concrete case. The 10th Chamber of the Council of State, in its decision dated 22.06.2022, E. 2017/3116, K. 2022/3433, referred to this principle and stated that a threat to public order or security must be demonstrated with sufficient and serious information.
These decisions were rendered in files involving national security and intelligence information; their direct applicability to ordinary criminal allegations must be assessed separately. Nevertheless, the general approach that the grounds of an administrative act must be supported by concrete data and documents forms the basis of any defence against a deportation decision. The evidence in the investigation file, statements, and any non-prosecution or acquittal decisions are important in this respect.
Cases in Which Deportation Cannot Be Ordered
Under Article 55 of Law No. 6458, even if they fall within Article 54, a deportation decision cannot be taken in respect of those for whom 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 deported; those considered at risk when travelling due to serious health problems, age or pregnancy; those whose treatment for a life-threatening illness is ongoing and for whom no treatment is available in their country; victims of human trafficking who are benefiting from the victim support process; and victims of psychological, physical or sexual violence until their treatment is completed. This assessment is made separately for each person. In addition, the non-refoulement principle in Article 4 of the Law prohibits sending a person to a place where he or she would be subjected to torture or where his or her life or liberty would be threatened.
Administrative Detention and Removal Centres
In the deportation of foreigners who commit crimes, those considered to fall within Article 54 are, when apprehended by law enforcement, immediately reported to the governorate for a decision, and the assessment and decision period cannot exceed forty-eight hours (Art. 57/1). Where a foreigner is assessed as posing a threat to public order or public security, the governorate may issue an administrative detention order or impose alternative obligations to administrative detention under Article 57/A. Those subject to an administrative detention order are taken to a removal centre within forty-eight hours.
The period of administrative detention cannot exceed six months; it may be extended by up to six more months where, for example, the foreigner does not cooperate. The governorate reviews every month whether continued detention is necessary. The alternative obligations include residence at a specified address, reporting, bail and electronic monitoring (Art. 57/A). The person or his or her lawyer may apply to the criminal judgeship of peace against an administrative detention order; the application does not suspend detention, and the judge concludes the review within five days, with a final decision.
Annulment Action Before the Administrative Court
In the deportation of foreigners who commit crimes, the remedy against a deportation decision is set out in the third paragraph of Article 53. The foreigner, his or her legal representative or lawyer may apply to the administrative court within seven days of notification of the decision, and the authority that issued the decision must also be informed of the application. The court concludes applications within fifteen days of the file being complete, and its decision is final. The most important safeguard of this provision is that, subject to the foreigner’s consent, the foreigner cannot be deported within the period for bringing an action, or, if an action is brought, until the proceedings have concluded.
Effect on the Work Permit
In the deportation of foreigners who commit crimes, the work permit is also affected: the second paragraph of Article 15 of Law No. 6735 sets out the cases in which a work permit is cancelled other than at the request of the foreigner or the employer. These include notification by the Ministry of the Interior that the foreigner falls within Article 54 of Law No. 6458, and notification by the relevant public bodies that the foreigner’s employment in Türkiye is objectionable in terms of public order, public security or public health. Because the work permit stands in for a residence permit, its cancellation also affects the foreigner’s legal basis for staying in the country.
By contrast, the mere opening of an investigation or detention does not automatically result in cancellation; the relevant notification by the competent authorities is required. The fate of the work permit therefore cannot be considered independently of the deportation process.
The Path to Follow for the Foreigner and the Employer
Where a foreign national holding a work permit is the subject of a criminal allegation, the process should be managed as follows by the foreigner and the employer:
- Tracking decisions: Whether the provincial migration management directorate has taken a deportation or administrative detention decision following the statement given to the judicial authorities should be established urgently.
- Protecting the seven-day period: When a deportation decision is notified, an annulment action must be filed before the competent administrative court within seven days, and the governorate that issued the decision must be notified of the application.
- Objecting to administrative detention: If the person is sent to a removal centre, an application should be made to the criminal judgeship of peace to have the detention lifted or replaced with alternative obligations. Habitual residence, a valid work permit and ties to the workplace may be emphasised in the application.
- Bringing the criminal process before the administrative court: Non-prosecution, release or acquittal decisions given in the criminal investigation, together with the state of the evidence in the file, should be submitted to the administrative court to show that the allegation does not amount to a concrete threat to public order.
- Monitoring the work permit: It should be monitored whether any notification leading to cancellation of the permit has been made and, where necessary, the relevant act should be challenged separately.
Conclusion
The risk of deportation of foreigners who commit crimes applies even where a work permit exists; the administration may act on grounds of public order without waiting for the criminal proceedings to conclude. This risk is not automatic, however: administrative discretion must rest on concrete information and documents, the exceptions in Article 55 and the non-refoulement principle must be observed, the seven-day action period and the safeguard against deportation while the action is pending are available, and an application may also be made to the criminal judgeship of peace against administrative detention. The most critical point in the process is not to miss the seven-day period that runs from notification of the decision.
This article is for general informational purposes only; for legal matters specific to your situation, please consult a lawyer.
