Acquisition Of Turkish Citizenship And Issues Arising In Practice

1. Introduction

Countries currently confer citizenship to citizens of other countries who meet various legal and/or financial criteria for different justifications. Although these criteria differ from country to country, it is known that the most preferred way of acquiring citizenship is through investment.

For the past 5 years, this method of acquiring citizenship has also been highly preferred in Türkiye. In the press statement of Süleyman Soylu, former Minister of Interior, dated 10 May 2022, it was announced that 25,969 foreign citizens, mostly from Middle Eastern countries, acquired Turkish citizenship through investment.

It has been seen that the way of acquiring citizenship through investment is also preferred for unlawful purposes and our study also focuses on the consequences of abusive actions.

2. Decision of Acquisition of Citizenship by Investment and the Administration’s Review Process of Applications

Pursuant to Article 31/1-(j) of the Law on Foreigners and International Protection No. 6458 (“Foreigners Law“) with reference to Article 12/1-(b) of the Turkish Citizenship Law No. 5901 (“TCL“), those who will make investments in the scope and amount to be determined by the President, their foreign spouses, there and their spouse’s minor or dependent foreign children may acquire citizenship through investment.

By year of 2024, it has been made legally possible for foreigners to apply for Turkish citizenship in the event of the purchase of an immovable property with the qualification of land which a condominium or construction servitude has been established or on which a building has been built, with the condition of attaching an annotation of not being sold for three years in the land registration records, amounting to at least 400,000.00 US Dollars or equivalent foreign currency.

Importantly, the prerequisite for acquiring citizenship through investment is that the applicant does not constitute an obstacle in terms of national security and public order.

In order to avoid jeopardizing national security and public order, many regulations have been introduced, particularly the TCL.

3. The Impact of INTERPOL Legislation on Acquisition of Citizenship by Investment

It is essential for public institutions to investigate whether the foreigner who applies for Turkish citizenship through the exceptional methods listed in Article 12 of the TCL has any situation that would constitute an obstacle in terms of national security and public order.

While conducting this research, two sources of INTERPOL, where Türkiye is a party with no reservations to all of its legislation, are very significant:

• INTERPOL Notices, and
• INTERPOL Automated Fingerprint Identification System (AFIS).
  • INTERPOL Notices and Especially INTERPOL Red Notice

The INTERPOL Notice is, in the simplest terms, a kind of notification issued to ensure the exchange of information between member states on various issues.

These notices are seven in total: red, blue, green, yellow, black, orange, green, yellow, black, black, orange and purple. In addition, there is an eighth type of notice, the Interpol-United Nations Security Council Special Notice.[1]

According to Article 82 of INTERPOL’s Rules on the Processing of Data, an INTERPOL red notice is a notice generally used to locate and apprehend individuals internationally sought and associated with relatively serious criminal charges, with the aim of their arrest and extradition to the countries where they are sought.

Red notice aims that individuals sought to be temporarily detained by the authorities of the member country in which they are found, provided that the alleged crimes are eligible for extradition.

• INTERPOL Automated Fingerprint Identification System: AFIS

According to the INTERPOL Implementation for Data Format for the Interchange of Fingerprint, Facial and Biometric Information, AFIS is a kind of database developed by Interpol for the detection of criminals on an international scale, open to the use of member states, which identifies individuals through their biometric data, especially fingerprints.

This system enables the detection and apprehension of criminals by scanning fingerprint data. In addition, it digitizes fingerprint data and enables its storage and interrogation.

Through AFIS, member states have located and extradited many criminals, especially those wanted at the red notice level, to the relevant country. Additionally, it is a database that contains highly valuable data for internal security.

4. Domestic and National Fingerprint Scanning System: APFIS
   • What is APFIS?

APFIS (Automatic Fingerprint and Palmprint Identification System), in the simplest terms, is a type of software that serves similar purposes to AFIS, identifies individuals by matching fingerprints and palm prints and can make instant identification.

The system has started to be used in our country as of 27 January 2014 and its final acceptance is dated 17 February 2015.[2] This system, which is aimed to be used in all public institutions, has been developed in cooperation with Havelsan-Polsan by making use of the knowledge and experience of the Criminal Department of the General Directorate of Security with the means claimed to be completely domestic and national.

With this software, which is also used in service-specific fingerprinting devices in public institutions today, rapid identity control can be performed from the Turkish Republic Identity number and fingerprint.

In 2018, according to a written statement made by the Ministry of Interior, in order to ensure that fingerprinting activities are carried out effectively and efficiently and to prevent loss of time, a protocol was signed with the instruction of Süleyman Soylu, former Minister of Interior, allowing mutual querying from the Gendarmerie General Command Automatic Fingerprint and Palmprint Identification System (OPTES) and the General Directorate of Security Automatic Fingerprint and Palmprint Identification System (APFIS); the Ministry of Interior stated that many unsolved cases were solved by mutually exchange of fingerprints in the systems of the two institutions to each other.[3]

• Disregard of AFIS Data by the Ministry of Interior in Citizenship by Investment Applications

According to Article 35/2 of the Regulation on the Implementation of the Turkish Citizenship Law (“Regulation“)[4] , which entered into force upon its publication in the Official Gazette dated 6 April 2010 and numbered 27544, an archive research shall be requested from the Undersecretariat of the National Intelligence Organization and the General Directorate of Security in order to determine whether the foreigner has any situation that would constitute an obstacle in terms of national security and public order in acquiring Turkish citizenship. Pursuant to paragraph 4 of the same Article, the Undersecretariat of the National Intelligence Organization and the Directorate General of Security shall determine whether the foreigner has a situation that would constitute an obstacle in terms of national security and public order and shall clearly notify the result of the research.

In spite of that, since 2018 until today, contrary to article 11/1(g) of the TCL, it has been observed that persons who are associated with acts that may violate national security and public order and who are associated with serious criminal allegations can also acquire Turkish citizenship through investment. It has been revealed that these persons sometimes have organic link with structures classified as terrorist organizations on an international scale and are even sought by Interpol with a red notice.

At this point, it has been seen that the duty of investigation assigned to the aforementioned public institutions by explicit provision of law is not executed properly and our domestic and national APFIS system, which is quite important in terms of national security, has insufficient data. Nevertheless, the question remains whether Interpol’s AFIS system is being used effectively enough.

5. Loss of Turkish Citizenship

The TCL also regulates the cases of loss of subsequently acquired Turkish citizenship. As per Article 4 of the European Convention on Nationality, which is also referred to in its legal ground, no one should be arbitrarily deprived of his/her nationality. For this reason, the loss or cancellation of citizenship by the competent authorities is subject to legal limitations.

Pursuant to Article 24 of the TCL, the cases of loss of Turkish citizenship by the decision of the competent authority are listed as (i) renunciation, (ii) deprivation or (iii) cancellation of citizenship.

This study also focuses on the procedure of cancellation of subsequently acquired Turkish citizenship, which is frequently resorted to by the administration due to the inefficient use of the AFIS system.

• Cancellation of Turkish Citizenship by Decision of the Competent Authority

Pursuant to Article 31 of the TCL, if the decision to acquire Turkish citizenship is the result of a false statement or concealment of important matters constituting the basis for acquisition of citizenship by the person concerned, the decision shall be cancelled by the authority issuing the decision. The cancellation decision shall be valid as of the date of the decision. Pursuant to Article 58 of the Regulation, the decision of cancellation shall not apply to the transactions made as a Turkish citizen between the date of acquisition of Turkish citizenship and the date of cancellation of the decision.

• Notification of the Decision and Consequences of Failure to Notify

Pursuant to Article 41 of the TCL, decisions on acquisition and loss of Turkish citizenship shall be notified to the person concerned and to the application authorities. Decisions on loss of Turkish citizenship pursuant to Article 29 of the TCL shall be published in the Official Gazette and shall be considered notified to have been notified on the date of publication.

It is possible to revoke the decision to acquire citizenship within 60 (sixty) days from the notification or deemed to have been notified to the person concerned. For this reason, if an unlawful decision on citizenship has been signed but not notified to the person concerned, there is no obstacle to the revocation of the decision, since its enforcement will not yet be in question. As long as the period for filing a lawsuit has not started to run, the administration can revoke its unlawful decision, since there can be no mention of a finalized decision and a vested right. [5]

• Effect of Loss of Turkish Citizenship on Property

The properties of a person who is deprived of Turkish citizenship or whose Turkish citizenship is cancelled in accordance with the legal procedure may be subject to liquidation.

The provisions of the Law no. 5683 dated 15 July 1950 on the Residence and Travel of Foreigners in Türkiye shall apply to those whose citizenship has been cancelled pursuant to Article 33 of the TCL. In cases where it is deemed necessary to liquidate their properties, this shall be stated in the cancellation decision. These persons are obliged to liquidate their properties in Türkiye within one year at the latest. Otherwise, their properties shall be sold by the Ministry of Treasury and Finance and their value shall be deposited in a public bank included in the public treasurer system in their name and account.

If it is deemed necessary to deport them by liquidating their properties, this matter must be specified in the court decision.

Decisions regarding the cancellation of Turkish citizenship are administrative acts by nature. These decisions may be subject to an action for cancellation. Pursuant to Article 33/2 of the TCL, if the persons whose Turkish citizenship has been cancelled apply for a judicial remedy against the cancellation decision, the liquidation of the property shall be left to the end of the lawsuit.

6. The Controversy on the Discretionary Use of the Sovereign Power of the Government

The Council of State considers the authority of the administration to grant Turkish citizenship to foreigners as a natural consequence of the sovereignty of the state.[6] On the other hand, the Constitutional Court of Türkiye considers that the sovereignty power of the state is not unlimited and that this power should be subject to control against arbitrariness and abuse in order to protect fundamental rights and freedoms.[7]

As explained in detail in other sections of our study, the administration has discretionary power in the process of acquiring Turkish citizenship through investment. On the other hand, the lack of an effective investigation activity on foreigners who apply to the administration to acquire Turkish citizenship in accordance with the conditions stipulated in the TCL paves the way for arbitrary and abusive use of this institution.

7. Conclusion

The increasing interest in the acquisition of Turkish citizenship through investment has brought along implementation problems. One of the main problems is the granting of Turkish citizenship to applicants who may be objectionable in terms of public order and national security due to the failure to effectively carry out the duty of investigation imposed on the administration pursuant to Article 35 of the Regulation.

Especially the fact that the administration (i) does not use Interpol’s AFIS system effectively enough and (ii) the APFIS system, which is developed with local and national resources, does not have a sufficient database to prevent problems in practice, leads to the frequent execution of the procedure for cancellation of citizenship acquired through investment.

This situation leaves an open door to the abuse of the institution of subsequently acquisition of citizenship through investment, and at the same time leads to discussions on the arbitrary use of the State’s discretionary power arising from its sovereignty.

[1] Interpol Notices, <https://www.interpol.int/How-we-work/Notices/About-Notices> (D.A. 26/01/2024)

[2] Republic of Türkiye Ministry of Interior General Directorate of Security 2017 Annual Report p. 24

[3]With Fingerprint Unsolved Cases Are Clarifiying <https://www.icisleri.gov.tr/parmak-izi-ile-faili-mechul-olaylar-aydinlatiliyor> (D.A. 16/02/2024)

[4]Official Gazette, Regulation on the Implementation of the Turkish Citizenship Law, no: 27544, D. 6/4/2010, < https://www.resmigazete.gov.tr/eskiler/2010/04/20100406-9.htm > (D.A. 17/3/2024)

[5] GÖZLER, Kemal; Administrative Law, C. I, 2nd Edition, Bursa, 2009 p. 1124.

[6] “The discretionary power granted to the administration by Law no. 403 on whether or not to take Turkish Citizenship is a result of the sovereignty right of the state, and there is no provision in the legislation that anyone who meets the conditions can be accepted to Turkish Citizenship in an absolute manner upon request…” 10th Chamber of the Council of State B. 1996/2993, D. 1997/4168, D. 06.11.1997

[7] “The protection of fundamental rights and freedoms makes it essential that the activities carried out in the field of national security are also supervised against arbitrariness and abuse…” Constitutional Court of Turkey, K.A. Application, Application No: 2017/38596, D. 19/10/2021