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Author Topic: Law On Work Permits Of Foreigners - Law nr. 4817  (Read 11214 times)

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Law On Work Permits Of Foreigners - Law nr. 4817
« on: June 19, 2007, 05:37:54 PM »
LAW ON WORK PERMITS OF FOREIGNERS

Law No : 4817
Date of Approval : Feb.27, 2003

Turkish Official Gazette Publication
Date and Number : March 6, 2003 / 25040


PART ONE
Objective, Scope and Definitions


Objective
Article 1- The objective of the present Law is to render the work of foreigners in Turkey subject to permission and to determine the principles related to the work permits to be granted to these foreigners.

 

Scope
Article 2- The present Law comprises any foreigners working dependently and independently in Turkey, foreigners undergoing professional training with any employer and any natural and juridical persons employing foreigners,

except for those included in the scope of the 2nd sentence of article 29 of the Law on Turkish Citizenship number 403 as well as article 13 of the Press Law and the Decree-Law no. 231 on the Organisation and Duties of the Press, Publication and Information General Directorate,

those granted work permit or employed based on the authorization assigned by law by the Ministries, public institutions and establishments, and

those foreigners kept exempt from the work permit taking into consideration the principle of reciprocity, international law and the law of the European Union.

 

Definitions
Article 3- In the framework of the present Law;

Ministry means the Ministry of Labour and Social Security,
Foreigner means any person not considered a Turkish citizen according to the Law on Turkish Citizenship number 403,

Dependent worker means any foreigner working under the service of one or more employer(s) being a natural or juridical person, in consideration for renumeration, salary, commission or similar allocation,

Independent worker means any foreigner working on his/her own behalf and account, whether or not the latter employs any other persons.


PART TWO
Liability of Obtaining a Permit and the Power of Granting the Permit


Liability of obtaining a Permit and the power of granting the permit
Article 4- Unless otherwise specified in bilateral or multilateral contracts, to which Turkey is a party, foreigners have to obtain a permit prior to starting to work in Turkey dependently or independently.

In case required by the country’s benefits or related to incidents of force majeure, the work permit may also be granted after having started working, under the condition that the working period has not exceeded one month and by obtaining the approval of the Ministry, and under the condition that the relevant authority has been advised prior to starting to work.


PART THREE
Work Permits and Work Permit Exemptions and Restrictions


Work permit restricted by terms
Article 5- Unless provided to the contrary in the bilateral or multilateral contracts, to which Turkey is a party, the work permit restricted by terms is granted for a work at a certain worksite or establishment and a certain profession and to be valid for maximum one year, taking into consideration the status of the business market, the developments in working life, sectoral and economical conjuncture changes related to employment, in accordance with the validity term of the foreigner’s residence permit as well as the validity term of the employment contract or the work.

Following the legal working period of one year, the validity term of the work permit may be extended up to three years under the condition of working at the same worksite or establishment and in the same profession.

At the end of the legal working period of three years, the validity term of the work permit may be extended up to six years under the condition of working in the same profession and with any employer of his/her discretion.

The spouse and dependant children of any foreigners having come to Turkey for working purposes, who have accompanied the latter or have been brought by the latter later on, may be granted a work permit restricted by terms as well, under the condition that they have resided with the foreigner legally and uninterruptedly for at least five years.

The Ministry may extend or narrow down the geographical validity area of the work permit restricted by terms.

 

Work permit without terms
Article 6- Unless provided to the contrary in the bilateral or multilateral contracts, to which Turkey is a party, the work permit without terms may be granted for any foreigner who has been residing in Turkey legally and uninterruptedly for at least eight years or who features a total legal working period of six years, without restricting the work permit by a certain operation, profession, civil or geographical area, and without taking into consideration the status of the business market and the developments in working life.

 

Independent work permit
Article 7- Foreigners who shall work independently, may be granted the independent work permit by the Ministry under the condition that they have legally and uninterruptedly resided in Turkey for at least five years.

 

Exceptional cases
Article 8- Unless otherwise foreseen by bilateral or multilateral contracts to which Turkey is a party, a work permit may be granted to the following persons, not being subject to the periods foreseen in the present Law:

Foreigners being married to a Turkish citizen and living with his/her spouse in Turkey in the framework of the marital union or whose marital union, after a period of the marital union of at least three years, has ended and along with this have settled dow in Turkey as well as their children from the spouse being a Turkish citizen,

Those having lost the Turkish Citizenship in the framework of the articles 19, 27 and 28 of the Law on Turkish Citizenship number 403, and their distant relations,

Foreigners born in Turkey or who have come to Turkey before having completed the age of maturity according the latters’ own national laws, or if without any citizenship, according to the Turkish regulations, and who have graduated from any training college, academy or university in Turkey,

Foreigners who are considered as emigrants, refugee or nomads according to the Settlement Law number 2510,

Citizens of the European Union member countries and their spouse and children not being citizens of the European Union member countries,

Those working in the service of diplomats, administrative and technical personnel commissioned at representations of international representations and consulates as well as embassies of foreign countries in Turkey, as well as the spouses and children of diplomats, administrative and technical personnel commissioned with representations of international establishments, consulates, embassies in Turkey under the condition of being within the framework of reciprocity and being restricted with the period of assignment.

Foreigners to come to Turkey temporarily for a period exceeding one month for the purpose of scientific and cultural activities and for a period exceeding four months for the purpose of sportive activities,

Foreigners featuring the status of key personnel to be employed in the works of acquisition of goods and services, causing the performance of a work or the operation of a plant, by means of the contract or tender procedures by legally authorized Ministries as well as public institutions and establishments.


Periods to be included in legal working period and periods considered as interruption in residence
Article 9- Annual leaves, industrial accident and professional diseases, illness and periods for which maternity, temporary unemployment allowances as well as unempleyment insurance allocation are received are included in te legal working periods.

The foreigner’s staying out of Turkey for a total period of not exceeding six months does not interrupt the working period. However, the time spent out of Turkey is considered as working time. The residence of any foreigner who fails to extend his/her residence permit for a period exceeding six months is considered an interruption in terms of the work permits.

 

Confirmation of work permit exemption
Article 10- Under the condition that the rights provided by the bilateral or multilateral contracts, to which Turkey is a party, are reserved, the foreigners kept exempt from the work permit are given a written confirmation of work permit exemption by the Ministry in case of their request.

 

Restriction of work permit
Article 11- Under the condition that the rights provided by the bilateral or multilateral contracts, to which Turkey is a party, are reserved, and in the framework of the principle of reciprocity, the work permits may be restricted for a certain validity period, agricultural, industrial or service sectors, a certain profession, business branch or civil and geographical area, in case required by the status of business market and developments in working life, sectoral and economical conjuncture conditions related to employment.


PART FOUR
Granting, Extension, Rejection, Cancellation of Permits, and Taking Legal Remedies


Granting or extension of permits
Article 12- Foreigners residing outside Turkey shall file their applications for work permit with the representations of the Republic of Turkey in the countries where they stay. The representations shall send these applicatons directly to the Ministry. The Ministry shall obtain the comments of the relevant authorities and asses the applications in accordance with article 5; the work permit is granted to those foreigners whose conditions have been found appropriate. This permit is just valid in case upon having received the necessary work visa as well as the residence permit. Foreigners having obtained the work permit, have to apply for an entry visa for the country within ninety days the latest from the date they have obtained this permit, and to apply for the residence permit with the Ministry of Internal Affairs within thirty days the latest from the date they have entered the country.

Foreigners who hold a valid residence permit in Turkey or their employers may directly apply to the Ministry.

Work permits are granted and extended according to the present Law and the provisions of the regulations released, upon the written request of the foreigners holding residence or their employers to the Ministry.

Applications are answered by the Ministry within ninety days the latest.

 

Obtaining comments from the relevant authorities
Article 13- Work permits related to professions, art or works where they may work in connection with the conditions stipulated by the present Law, shall be granted by the Ministry after having asked for the comments of the relevant authorities including professional efficiency.

The provisions mentioned in the other laws related to the works and professions which may not be performed by the foreigners are reserved.

 

Rejection of request for permit
Article 14- The request for work permit or work permit extension shall be rejected under the following conditions:

The fact that the status in the business market and the developments in the working life and sectoral and economical conjuncture changes related to employment are not suitable for granting a work permit,

The fact that any person is found for the work applied for, featuring the same qualities to perform that work, within 4 weeks within the country,

The fact that the foreigner does not hold a valid residence permit,

The fact that any foreigner, whose permit application for a worksite, operation or profession has been rejected, files a new application for the same worksite, operation or the same profession prior to the lapse of one year from the date the application for permit had been rejected,

The fact that the work of the foreigner constitutes a threat for national security, public order, general security, public benefit, general ethics and general health.

Cancellation of work permit
Article 15- If the foreigner work contrary to the restrictions mentioned in article 11 and 13 or in case of the existence of any of the incidents foreseen in article 14 or in case it is determined later on that the foreigner or his/her employer has given incomplete or wrong information in the request for work permit, the Ministry shall cancell the work permit granted and advises the situation to the relevant Ministry.

 

The work permit’s becoming invalid
Article 16- Apart from the end of the validity term, the work permit shall become invalid in the following cases:

In case the residence permit of the foreigner becomes invalid for any reason or the validity term is not extended,

In case the validity term of the foreigner’s passport or the latter’s papers replacing the passport is not extended, (except in case there are the appropriate comments of the Ministry of Internal Affairs or the Ministry of Foreign Affairs)

In case the foreigner stays abroad uninterruptedly for a period of more than six months, except for reasons of force majeure.

Right of taking legal remedies
Article 17- The Ministry shall notify to the foreigner or the latter’s employer, if any, the Decision of rejection of the foreigner’s request for granting or extending work permit, the cancellation of the work permit, or the Decision of making the work permit invalid, according to the provisions of the Communications Law number 7201.

Objection to the decisions to be adopted by the Ministry may be raised by the concerned parties within thirty days of the date of notification. In case the objection is rejected by the Ministry, the case may be refered to administrative jurisdiction.

 
PART FIVE
Liability of Notification, Power of Inspection and Arrangement as well as Penal Provisions


Liability of Notification
Article 18– a) Foreigners working dependently shall, from the date they have started to work and from the end of working,

b) Employers employing foreigners shall, from the date on which the foreigner has started to work, in case the foreigner fails to start employment within thirty days from the date on which the work permit is issued, from the end of this period and from the ending date of the employment contract for whatsoever reason,

be liable to notify this incident to the Ministry within fifteen days the latest.

 

Informing the Ministry
Article 19- Ministries as well as public institutions and establishments authorized to issue work permits to foreigners shall, from the date on which they have issued the work permit, on which they have extended the validity of the work permit and on which they have cancelled the work permit; whereas ministries as well as public institutions and establishments employing foreigners shall, from the date on which they have started employment, communicate all information about the foreigner to the Ministry within thirty days the latest.

 

Power of Inspection
Article 20- The Ministry’s work inspectors and the Social Security Institution’s insurance inspectors shall inspect whether foreigners and employers in the scope of the present Law fulfil their liabilities arising from the present Law.

During all kind of inspection and examinations to be made by inspection and supervision personnel of administrations with supplementary budget and departments included in the general budget at their worksite pursuant to their own regulations, they shall also inspect whether employers employing foreigners and the foreigners have fulfilled their liabilities arising from the present Law. The results of the inspection shall be advised to the Ministry as well.

 

Penal provisions
Article 21- Any independently working foreigner as well as any employer employing foreigners, who have failed to fulfil their liability of notification in due time according to article 18, shall be punished with an administrative fine of twohundredfifity millions Lira for each foreigner.

Any foreigner working dependently without a work permit shall be punished with an administrative fine of fivehundredmillions Lira.

The employer or employer’s representative employing any foreigner without work permit shall be punished with an administrative fine of twobillions fivehundredmillions Lira for each foreigner. In this case, the employer or the employer’s representative has to provided for the accommodation costs, the expenses necessary for the return to their countries and, if necessary, the health outlays of the foreigners and his/her spouse and children, if any.

In case of repetition of the acts stated in the first, second and third item, the administrative fines shall be applied in double amount.

Any foreigner working independently without the work permit issued according the present Law, shall be punished with an administrative fine of onebillion Lira, and the decision for closing the latter’s worksite(s), if any, shall be adopted by the Ministry’s regional directorates, and the incident shall be communicated to the province governour for the execution of this decision. In case of repetition, the administrative fine shall be applied in double amount along with closing the worksite(s), if any.

The administrative fines foreseen in the present Law shall be communicated to the concerned parties by the Ministry regional directorate by advising its reasons in accordance with the provisions of the Communictions Law number 7201. Administrative fines shall be paid with the tax offices or financial directorates within seven days from the date on which the administrative fines have been communicated. The concernd parties may object to this fine within this period with the competent criminal court for petty cases. The application shall not suspend the execution and collection of the fine.

Dependently or independently working foreigners as well as employers employing foreigners, who are punished with administrative fine according to the present Law, shall be advised to the Ministry of Internal Affairs.

As for the execution and collection of the administrative fines and other claims not paid in due time according to the present Law, the provisions of the Law on Procedures for the Collection of Public Claims number 6183 are applicable.

 

Regulations
Article 22- Procedures and principles related to the issuing of all kind of work permits, their restriction, cancellation, foreigners to be kept exempt from the work permit as well as the manner of fulfilling the liabilities of notification, shall be arranged by the regulations to be released in accordance with the present Law.

The regulations related to the application of the present Law shall be released within six months following the publication of the Law jointly with the Ministry, the Ministry of Internal Affairs, the Ministry of Foreign Affairs, the Ministry of Finance, the Ministry of Public Works and Settlement, the Ministry of Health, the Ministry of Tourism, the Undersecretary’s Department of the State Planning Organisation, the Undersecretary’s Department of Treasury, the Maritime Undersecretary’s Department and the Undersecretary’s Department of Foreign Trade, and by taking also the opinions of the other ministries, public institutions and establishments as well as professional organisations featuring the property of public institution, which are considered related.

 

Employment of foreigners in foreign capital investments
Article 23- Foreigners, who are requested to be employed in companies and establishments founded in the framework of the Law of Foreign Capital Stimulation number 6224, may be employed by the work permit issued by the Ministry in the framework of the procedures and principles to be determined by the regulations to be released jointly with the Underseceratry’s Department of Treasury.


PART SIX
Amendments made on Certain Laws


Article 24- The staff shown in the attached list number (1) has been produced, and added to the part of the schedule number (1) attached to the Decree-law number 190 related to the Ministry of Labour and Social Security.

 

Article 25- The following item has been added as item (h) to the article 9 of the Law on the Organisation and Duties of the Ministry of Labour and Social Security number 3146 dated Jan.9, 1985, and the existing item (h) has been passed to item (i) in continuous succession.

“h) performing the works foreseen in the Law on Work Permits of Foreigners,”

 

Article 26- Article 34 of the Law on Turkish Engineers and Architects Chambers’ Association number 6235 dated Jan.27, 1954 has been amended as follows:

“Article 34 – As for engineering and architectural works which foreign contractors or foreign establishments have undertaken in Turkey directly or together with domestic establishments towards Turkish State departments as well as official and private establishments and persons, foreign experts may be employed with the work permit issued by the Ministry of Labour and Social Security, by taking the opinions of the Ministry of Public Works and Settlement and the Association of Chambers, under the condition that this remains exclusively valid for this task.”

 

Article 27- Article 35 of the Law number 6235 has been amended as follows.

“Article 35 – As for works not included in the framework of article 34, foreign engineers and engineers (M.Sc.) as well as architects and architechts (M.Sc.), may be employed with the work permit issued by the Ministry of Labour and Social Security, by taking the opinions of the Ministry of Public Works and Settlement and the Association of Chambers.”

 

Article 28- Article 119 of the Petroleum Law number 6326 dated March 7, 1954 has been amended as follows.

“Article 119 – Holders of Petroleum right, may employ foreign administrative and professional personnel as well as expert personnel with the permit issued by the Ministry of Labour and Social Security, by taking the opinion of the Ministry of Energy and Natural Resources as well as the Ministry of Internal Affairs.”

 

Article 29- The following item has been inserted to article 21 of the Law on Private Educational Institutions number 625 dated June 8, 1965 to follow the fourth item.

“Foreigners to work in the framework of the present Law, are subject to the provisions of the Law on Work Permits of Foreigners.”

 

Article 30- Article 3 of the Law Number 2527 dated Sept.25, 1981 on Free Execution of Profession and Arts of Foreigners of Turkish Lineage in Turkey, the Possibility of their Employment with Public, Private Establishments or Worksites has been amended as follows.

“Article 3 – The working and employment of foreigners of Turkish Lineage in professions, arts and works stated to be able to be performed by Turkish citizens by law, shall be permitted by the Ministry of Labour and Social Security by taking the opinion of the Ministry of Internal Affairs and the Ministry of Foreign Affairs, according to the present Law and the Law on the Work Permits of Foreigners, under the condition of featuring the properties sought by the special laws and fulfilling the respective liabilities.”

 

Article 31- The first item of subparagraph (a) of article 18 of the Tourism Stimulation Law Number 2634 dated March l2, l982 has been amended as follows.

“In operations with certificate, foreign expert personnel and artists may be employed by means of the permit to be issued by the Ministry of Labour and Social Security upon having taken the opinion of the Ministry and the Ministry of Internal Affairs.”

 

Article 32- The following item has been added to article 26 of the Law number 2634.

“Foreigners supposed to be active in the scope of the first item are subject to the provisions of the Law on the Work Permits of Foreigners.”

 

Article 33- The heading of the tarfii number (6) associated with the Law of Fees number 492 dated July 2, 1964 has been amended as follows.

“Paspport, visa, residence permit, Certification Fees of the Ministry of Foreign Affairs and the fees of work permits to be issued for foreigners.”

 

Article 34- The following part has been inserted at the end of the tariff number (6) associated with the Law number 492.

IV- Work Permits to be issued for Foreigners:

1-Work Permit restricted by Terms:
   a) up to 1 year (including 1 year) 50.000.000.- TL
   b) up to 3 years (including 3 years) 150.000.000.- TL
Validity period extensions are subject to the same amounts of fee.

2-Work Permit without Terms: 250.000.000.- TL

3-Independent Work Permit: 500.000.000.- TL

As regards determining the fees of the work permit, the Ministry of Foreign Affairs shall be competent taking into consideration the principle of reciprocity.

 

PART SEVEN
Temporary and Final Provisions

 

Provisions annulled
Article 35- The Law no. 2007 dated June 11, 1932 on Arts and Services Assigned to Turkish Citizens in Turkey has been annulled.

 

Temporary Clause 1 – Work permits granted to dependently or independently working foreigners in accordance with the provisions of the regulations prior to the enforcement of the present Law shall be valid until the end of their validity terms unless annulled by the Ministry pursuant to the present Law or having become void.

 

Temporary Clause 2 – Information about foreigners who have been employed or granted a work permit by public institutions and establishments prior to the date of the present Law’s enforcement, shall be communicated to the Ministry by the authorities issuing the permit, within ninety days from the law’s being put into force.

 

Temporary Clause 3 – The work permits of those who have filed their application for work permit prior to the date of the present Law’s enforcement and whose application is continued to be processed, shall be issued by the public institutions and establishments competent prior to the date of the present Law’s enforcement and they shall communicate the necessary information to the Ministry within thirty days from the date on which the work permit has been issued.

 

Validity
Article 36- Article 24 of the present Law shall be put into force on the date the Law is published, whereas the other articles shall be put into force six months following the date of its publication.

 

Enforcement
Article 37- The provisions of the present Law shall be enforced by the Council of Ministers.


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