Some Characteristics of Turkish Law on Foreign Employees and Employers

1. In General

About the “Working Rights of Foreigners,” a general rule is introduced both by the Turkish Constitution and the 15th Article of Law on Foreigners’ Residence and Travel.” Upon this rule, the foreigners are allowed to work in fields if and only if it is not forbidden by law. There are different regulations about this matter in numerous laws (for example, for the moment, there is a working ban for foreign doctors, pharmacists, vets, lawyers, notaries and dentists). As for the foreign lawyers, there is an exception regulated by the Article 44 of Law on Attorneyship. Accordingly, the foreign lawyers are only allowed to offer services at the fields of consultancy for international law and foreigners law. However, the “reciprocity principle” is still considered here.

2. Requirement of Obtaining a Work Permit

Upon the Law on Work Permits of Foreigners, which has come into effect on 27.02.2003, the foreigners are obliged to obtain a work permit before starting to work in Turkey, for the first time. (Article 4/1). This permission is given by the Ministry of Labour and Social Security in Turkey and abroad, by the Turkish Consulates. There are four types of work permits imposed by law:

a) Time Bound Work Permit: As a rule, it is given at most for a year, for the conduct of a specific job at a specific work place. The decision to give work permit is taken by considering the general situation of labour market, improvements at the business life, conjunctural changes at the related sector and economics. Such a work permit can be extended up to 3 years, for the same job and the activity in the same work place. After the expiry of 3 years time, then this permit can be extended up to 6 years. For children and spouses, they can get a work permit after lawfully residing in Turkey for 5 years.

b) Transient Work Permit: The foreigners can obtain a transient work permit, after lawfully residing and working 8 years in Turkey.

c) Independent Work Permit: Those who wish to work on their own behalf and account can obtain the related work permit after lawfully residing 5 years in Turkey.

d) Excetional Work Permit: Those who posses the special characteristics stated at law can obtain the exceptional work permit (for example, upon the Law on Citizenship, those who got married with Turkish citizens, who has begun to reside in Turkey before turning lawful age, who has completed his university education in Turkey and those who are defined as “key staff” can obtain the exceptional work permit).

1.3. Requirement of Obtaining a Work Permit for the Key Staff

The bylaw named as the “Bylaw on Employment of Foreign Staff at Direct Foreign Investments” have come into effect on 06.09.2003. At this bylaw, the regulations especially on staff who will work at direct foreign investments and representative offices are enacted. At Article 4/e of the bylaw, what should be comprehended from the term of “Key Staff” is explained. Accordingly, those who work at the executive management of companies, who function as the auditor, who is entitled to charge and discharge new staff members are defined as key staff. In this context, for example:

a) Company’s shareholders,

b) The president and members of the executive board,

c) Managers,

d) Vice managers,

e) The delegates of main company at the representative offices, for whom a certificate of authority is drawn up,

are considered as the key staff.

The key staff working at the direct foreign investments should apply to the Ministry of Labour and Social Security for the work permit (Article 5 of the bylaw). However, they can also apply to the Turkish Consulates at their home countries. (Article 7 of the bylaw). The applications made to the Consulates are delivered to the Ministry and the assesment is carried out there. The conditions required for the permission are listed at Article 10 of the bylaw. After the work permit is given, it should be applied for a “work visum” within 90 days and after they arrive in Turkey, it should be applied for a “residence permit” within 30 days.

Those who wish to apply for the ordinary work permits should have residence permits for 6 months at least and they should apply for a work permit before the expiry date of this permit. For the assessment procedure of these applications, please refer to the explanations stated above.

1.4. Expenses of Work Permit

At the applications for work permit, fees of

• 50 YTL for permissions up to a year

• 150 YTL for permissions up to 3 years

• 250 YTL for transient work permits

• 500 YTL for independent work permits

is charged.

1.5. Competent Authority to Give Work Permit

Abroad : Turkish Consulate

In Turkey : Ministry of Labour and Social Security

If the applicant wants to reside in Turkey for a long time with the purpose of working here, it is recommended to apply for a work visum, after obtaining a work permit from the Turkish Consulates.

After starting the foreign employee into work, this fact has to be informed to the Ministry by his employer. However, an exception of this obligation is imposed by the Article 4/2 of Law on Work Permits of Foreigners. Accordingly, “when the country’s benefits make it necessary or depending on the forces majeures, provided that the competent authority is informed before starting to work, by not extending a month of the unpermitted working period and obtaining the consent of the Ministry, the work permit can be given after the work has started.” The primary components of this exceptional regulation is as follows:

1. Actuality of a condition which is made necessary by the country’s benefit and a force majeure

2. Application for a work permit before starting to work

3. A month of unpermitted work in Turkey shouldn’t exceed a month

4. The consent of the Ministry

2. Social Security of the Foreign Employees

At Article 1 of Law on Social Security, the term of “covered employee” is defined. Accordingly, for the existance of a covered employee relationship, the nationality status of the employee or the work permit’s being lawful or unlawful do not matter. Those who work dependent to an individual or a legal entity with a work contract should be covered by social security insurance, irrespective from his nationality. To be accepted as a covered employee, a work permit should be obtained.

For those employers who do not fulfill the obligation of informing the employee after starting to work, relatively high fines are inflicted.

However, for those employers who work on account of a foreign legal entity and who are accepted as covered employees upon the home country’s legislation of this legal entity, they do not have to be informed to the Turkish Social Security Institution. However, those who are covered according to their home country’s legislation should certify their social insurance policies at the Turkish Consulates.

Upon the Law on Social Securuties, the foreign employees should be covered by all branches of social insurance (Insurance for Work Accident and Professional Illness, Health Insurance, Maternity Insurance, Disability and Old Age Insurance).

Moreover, there are some provisions for foreign employees at the Law on Unemployment, however they are not very practicable and complex, therefore, the explanations about them are not covered here.