Changes on Work Permit

AMENDMENTS TO THE WORK PERMIT CODE & REGULATIONS – February 2010
By Maria Lianides Çelebi and Batuhan Şahmay from Bener Corporate Immigration Team

January and February 2010 have seen a bold effort by the Turkish government to change the work permit regime.  Amendments to the Implementation Regulation of the Foreigners’ Work Permit Code (“Regulations”) became effective on January 21, 2010 (Official Gazette No. 27469, Jan. 21 2010 ).  The Regulations make significant changes to the work permit application form, documentary requirements, as well as filing and adjudication procedure. Additionally, on the coattails of the regulatory changes, two weeks later, the law amending the Foreigners’ Work Permit Code (“Code”) was approved by the Turkish Grand National Assembly and became effective on February 5, 2010 (Official Gazette No. 27484, Feb. 5 2010).  The Code makes significant changes to the processing time of the applications as well as the procedure for licensed professionals such as engineers and architects. This update is not intended to be an overview of the work permit process as adjudicated by the Labor and Social Security Ministry of Turkey (“Ministry”), but merely an overview of the changes implemented by the Regulations and Code. 

I. REGULATORY CHANGES
The following amendments are specified in the Regulations;
Changes to the Application Form:
- The Work Permit Application Form (“Form”) has been greatly expanded. Sections regarding criminal and health history, and prior visa applications are added. The section regarding the position of the foreign employee is now more detailed. A “Declaration and Undertaking” (sworn statement) has been added.
- The Form now specifies the wage of the foreign employee be stated as monthly.

Changes to Required Documents:
- The employer’s balance sheet and profit/loss statement is no longer required for standard applications.  It will only be required if an employee claims classification as a Key Employee as defined by the Direct Foreign Investment Act(Direct Foreign Investments Law no. 4875).  (Note: it may be advisable to submit these documents regardless).
- For renewal applications, Employee’s pay-slip and notarized copy of residence permit are no longer required.
- For applications for licensed professionals (engineers, architects, etc), the Ministry will no longer require the submission of a current statement that they are licensed to practice in their home country (Note: this does not remove the requirement for an official “equivalency” for these professions. However, please note statutory change as well.)
-Applicant’s CV is no longer required (Note: the revised application form now requests CV-type information regarding the employee).
- 6 ID photos are now required (previously 4).

Changes to Filing Procedure and Adjudication:
- Work permit applications can now be filed with and issued by the Ministry in electronic file format (Note: there is currently no electronic filing and work permit issuance mechanism implemented by the Ministry).
- The Ministry may not request documents beyond those stated in the Regulations.
- Applications filed by employees at a Turkish consulate abroad now allow a 10 business day period (previously 3 business days) in which the employer must file their portion of the work permit application domestically with the Ministry.
- The Regulations now require that when the Ministry requests documents relating to the application (from another Turkish public entity), this must be obtained within 5 business days.  Additionally, when the Ministry requests an official “opinion” of the suitability of granting the permit from “related authorities,” this must be completed within 15 days (previously 30).  Lastly, the “related authorities” may be allowed an extension up to 15 days to provide the official ‘opinion” when deemed necessary by the Ministry (previously no time limit specified). 
- The Ministry must now take into consideration the contribution of the employing company to the national economy of Turkey when considering whether to grant a work permit (Informal feedback from the Ministry to Bener is that, when evaluating “contribution to the national economy”, the Ministry will take into consideration: the employer’s level of exports from Turkey; revenue; quantity of Turkish-national employees on payroll; new technologies, etc.). 

Other Miscellaneous Changes to the Regulations include:
- Changes in the regulations regarding exemption of work permits for employees of fairs and circuses, as well as crew members.
- Additionally, persons working in Turkey who fall under the narrow exemptions from work permit (Implementation Regulation of the Foreigners’ Work Permit Code, Work Permit Exemptions, Article 55) are now required to be registered with Social Security in Turkey.

II. STATUTORY CHANGES:
The following amendments are specified in the Code;

- The permissible adjudication period of the work permit by the Labor and Social Security Ministry (“Ministry”) is 30 days (previously 90 days).
-The Ministry may grant a one year preliminary work permit to applicants who are licensed professionals (engineers, architects, urban planners, etc) who will be engaged in actual engineering/architecture/etc. work while their application is pending (including period of adjudication of diploma equivalency).
- The Ministry will no longer require a diploma equivalency for licensed professionals (engineers, architects, urban planners etc.) who will not engage in such work in Turkey, and their application will not be sent to “other relevant public institutions” (ex. Chamber of Engineers and Architects/ TMMOB) for feedback and/or equivalency determinations.

III. COMMENTARY
On the whole, we anticipate these changes should greatly improve the work permit process in Turkey, as most of the changes made in the Regulations and Code attempt to create a more efficient and expedited work permit process (Informal feedback from the Ministry to Bener is that the changes will apply to pending cases as well). Most notably, the ban on the Ministry’s ability to request additional documents and a reduction in adjudication period to 30 days, attempt to expedite the process.  In addition, the discretion for the Ministry to grant an interim permit to engineers and architects while their equivalency is pending is a sorely needed change, given equivalencies may take anywhere from two to six months.  Also, previously, work permit applications filed abroad necessitated diligent coordination whereby the employer was strictly required to submit the work permit application domestically within 3 business days of the employee filing his/her work visa application at the Turkish Consulate abroad. This 3 day period has now been extended to a more practical 10 days.

However, some changes may not be particularly helpful or their impact is yet unknown.  For instance, it is not clear what the consequences will be of the limitation on the Ministry’s ability to request additional documents.  It appears official written requests for additional documents are only allowable if the document requested is listed as a necessary document in the Regulation. However, the Ministry historically has requested many documents outside of this official list if there was a concern about the approvability of the application. For instance, if the Ministry has concern about the employer’s “ability to pay” or other issue, the Ministry now appears prohibited from requesting additional or alternative documents to alleviate this concern. As a result, this change could actually facilitate a rise in rejections of applications that could have easily been remedied by submission of additional documents.

Aside from such procedural changes, more problematic changes were made to the work permit application form, which now requires information regarding employee’s health, criminal and immigration history. For example, questions include: whether the employee has a serious illness that threatens public health or a substance abuse problem, whether the employee has ever been charged, arrested or convicted of a crime in any country, and whether the employee has ever been forcibly removed from a country. Assessing the applicant’s background information is not a surprising addition given that many developed countries’ immigration laws also request such information. In fact, in a Ministry memorandum describing the regulatory changes (Unofficial Ministry communiqué regarding the Amendments to the Work Permit Regulations for Foreigners (posted on Ministry website Jan. 26, 2010), it specifically states that the Ministry attempted to model the application questions to those requested by other countries. However, the Regulations lack any legal guidance whatsoever regarding the legal relevance and consequences of the new information sought on the application.  For example, which crimes or diseases are considered relevant to the adjudication of a work permit?  What status (felony, misdemeanor, infraction)? There must be guidance regarding the consequences of the new questions. (Informal feedback from the Ministry to Bener is that a committee has been formed to evaluate applications where there is a “yes” answer to any of the personal history questions) .

Additionally, implementation of changes in the Code regarding work permits for engineers, architects and urban planners, etc. remain to be seen.  The changes in the Code break down adjudications of applications where the employee (whose degree is in engineering, architecture, etc) is seeking a work permit to engage in actual hands-on engineering work (or architecture, etc) as opposed to those who have such degree, but will not be engaged in such work (ex. an engineer engaged in marketing, sales, management positions etc).  Those applications that assert the employee will not engage in such work are no longer subject to the requirement of an “equivalency.” (Informal feedback from the Ministry to Bener is that the Ministry will still evaluate the credibility of the assertion that the applicant will not engage in engineering/architecture/city planning work. Therefore, at their discretion, an equivalency may still be requested). Those applicants who will engage in such work may be issued an interim work permit during the pendency of their “equivalency.” Certainly, if these changes are appropriately implemented, the burden of obtaining a work permit for these licensed professionals will be greatly alleviated.

This newsletter hereby is provided by Bener Law Office. Information is deemed a general view on Turkish Law and should not be perceived as legal opinion.  Readers may use the information provided in this newsletter at their own discretion. Provision of this information does not establish an attorney-client relationship between Bener Law Office and the reader under any circumstances.

maria.celebi(at)bener.com.tr
batuhan.sahmay(at)bener.av.tr

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