The Common Condition Sought for the Ways of Re-acquisition of Turkish Citizenship: Not Being in a Position Constituting an Obstacle for the National Security
Rifat ErtenReacquisition of Turkish citizenship is regulated under articles 13, 14 and 43 of the Turkish Citizenship Act No. 5901. Articles 13 and 43 set forth the individuals who may acquire Turkish citizenship without the requirement of residence whereas article 14 designates the persons who may acquire the citizenship with the requirement of residence. Under each provision, groups of persons who may acquire the citizenship through this way, the competent authority and the conditions of acquisition are provided separately. While the condition of ‘not being in a position constituting an obstacle for the national security and public order’ is sought for the other ways of acquisition of Turkish citizenship by the decision of the competent authority, in all of the ways of reacquisition of the Turkish citizenship, ‘not being in a position constituting an obstacle for the national security’ is set as a condition. The concepts of ‘national security and public order’ which are referred by the said conditions are not defined in the Turkish Citizenship Act, and there is no provision that enables us to determine which issues fall under the scope of this requirement. However, some significant provisions are provided under the Implementing Regulation of the Turkish Citizenship Act. In the article, general evaluations are made about the relevant provisions of the Act and the Regulation; subsequently, the possible consequences of the condition of “not being in a position constituting an obstacle for the national security” which is sought for the reacquisition of Turkish citizenship, are discussed.
Türk Vatandaşlığının Yeniden Kazanılması Yollarında Aranan Ortak Şart: Millî Güvenlik Bakımından Engel Teşkil Edecek Bir Hâli Bulunmamak
Rifat ErtenTürk vatandaşlığının yeniden kazanılması, 5901 sayılı Türk Vatandaşlığı Kanununun 13, 14 ve 43. maddelerinde düzenlenmiştir. Türk Vatandaşlığı Kanununun 13 ve 43. maddelerinde ikamet şartı aranmaksızın, 14. maddede ise ikamet şartıyla Türk vatandaşlığını kazanabilecekler belirlenmiştir. Her bir maddede ayrı ayrı bu yoldan vatandaşlığı kazanabilecek kişi grupları, yetkili makam ve vatandaşlığın kazanılması şartları da belirtilmiştir. Diğer yetkili makam kararıyla vatandaşlığın kazanılması yollarında “millî güvenlik ve kamu düzeni bakımından engel teşkil edecek bir hâli bulunmama” şartı aranırken, Türk vatandaşlığının yeniden kazanılması yollarının hepsinde “millî güvenlik bakımından engel teşkil edecek bir hâli bulunmama” şartı aranmıştır. Türk Vatandaşlığı Kanununda şartta geçen “millî güvenlik” ve “kamu düzeni” kavramları tanımlanmadığı gibi hangi hususların şartın kapsamına girdiğini tespit etmemizi sağlayacak bir hüküm de mevcut değildir. Ancak Türk Vatandaşlığı Kanunun Uygulanmasına İlişkin Yönetmelikte, şartla ilgili önemli hükümler getirilmiştir. Makalede, Kanunun ve Yönetmeliğin ilgili hükümleri hakkında genel değerlendirmeler yapılmış; akabinde Türk vatandaşlığının yeniden kazanılması için aranan “millî güvenlik bakımından engel teşkil edecek bir hâli bulunmamak” şartının doğuracağı muhtemel sonuçlar üzerinde durulmuştur
The reacquisition of Turkish citizenship is regulated under the provisions of articles 13, 14, and 43 of the Turkish Citizenship Act (TCA) No. 5901. Articles 13 and 43 set forth which individuals may reacquire Turkish citizenship without the residence requirement, and article 14 designates those who may reacquire citizenship only if the requirement of residence is met. For each provision, the groups of persons who may reacquire citizenship through this way, the competent authority, and the conditions of reacquisition are provided separately.
The common conditions for the broader case of the acquisition of Turkish citizenship in relation to the decision of a competent authority, excluding the conditions for reacquisition, include “not being in a position constituting an obstacle for the national security and public order.” This condition, which was not stipulated under the previous act that was in force before the present one, was sought in accordance to sub-administrative regulations. This condition is regulated in TCA No. 5901 for the first time, and although it could have been considered to fall within the discretion of the competent authority, it is instead regulated as a condition, a fact that has drawn criticism. Another point of criticism is that because the scope of the condition is not sharply indicated, the competent authority has functionally been granted expansive discretional power.
Criticisms regarding the ambiguity of the scope of the condition scope and the fact that it grants the competent authority an expansive discretion are correct. However, the concepts of national security and public order, invoked by the condition, are not defined in the TCA, and no provision allows it to be determined what issues fall under the scope of the requirement. Nevertheless, under article 72(5) of the Implementing Regulation of the TCA, the scope of the condition is established. Here, it is stated that persons who are found to have committed the actions mentioned in the provision and who are then sentenced to imprisonment for more than six months, excluding crimes of negligence, are not eligible to acquire Turkish citizenship. This provision, which is set forth in a long text, has been subject to criticism regarding its scope, in various ways. However, it does have certain significance with regard to restriction to the discretion of the competent authority and providing a certain amount of foreseeability. Thus, a scope is established for the applicant regarding this condition. Another qualification here is that the condition must be evaluated in relation to the national security and public order of the Turkish Republic.
Matters that are unrelated to the applicant or to the attitude or actions of the applicant and do not have a direct effect on the Turkish Republic, along with the decisions rendered by a foreign court, may form part of a decision regarding the acquisition of Turkish citizenship. The competent authority may decide to approve or reject an application through an evaluation of the existence of these issues within the framework of its general discretion. However, it is not possible for the competent authority to its use general discretion for matters that fall under article 72(5) of the Implementing Regulation; their application should be decided pursuant to that article.
One negative side regarding article 72(5) of the Implementing Regulation is that it is very strict. For instance, the nature any prison sentence of more than six months is not considered except insofar as whether it administered for a negligent crime, and the time period that has passed after the sentence is considered irrelevant. The provision strictly stipulates that persons not meeting these criteria are not eligible to acquire Turkish citizenship.
The common condition sought for the reacquisition of Turkish citizenship for the applicant is, “not being in a position constituting an obstacle for the national security.” This condition is set forth under each provision of articles 13, 14, and 43 of the TCA. The concept of public order that is provided under the conditions regarding other ways by which Turkish citizenship may be acquired with the decision of competent authority, is not sought in the case of reacquisition of Turkish citizenship.
There was no such discrepancy in the Draft of the TCA submitted to the Turkish Grand National Assembly. The amendment was done to facilitate the reacquisition of Turkish citizenship, following consultations in regard to the Draft Act conducted under the Commission of Interior. The TCA was enacted with the amendments made to articles 13, 14, and 43.
The legislator deliberately excluded the ‘public order concept from the text and restricted the scope of the condition. Hence, it is not possible for the competent authority to consider public order when evaluating the applications for reacquisition of Turkish citizenship. In terms of reacquisition of Turkish citizenship, article 72(5) of the Implementing Regulation should be taken into account in relation with the framework designated for the national security. We are in the opinion that the competent authority cannot evaluate the public order matter even within its general discretional power.
Pursuant to article 14 of the TCA, persons who are issued a decision of loss of nationality according to article 29 of the Act, may reacquire Turkish citizenship provided that ‘they are not in a position that constitutes an obstacle for national security’ and that ‘they reside in Turkey for three years’. On the other hand, we observe that it is very hard for these individuals to reacquire Turkish citizenship in practice. First of all, the reasons which are provided for the loss of nationality under article 29 of the TCA is mostly based on the fact that the person is out of the country. In particular, the reason provided under article 29(2) relies on the fact that the person is out of the country. Therefore, it is very hard for those who are issued loss of nationality decisions to fulfill the three-year residence condition. Even if we assume that this condition is met, the actions which are considered as either direct or indirect reasons for the issuance of loss of nationality decisions are of nature to be considered within one or some of the actions related to national security under article 72(5) of the Implementing Regulation. Bearing in mind that article 72(5) does not grant a discretional power in relation to the actions listed under this provision, it would be consistent to state that it is very difficult for the individuals who are issued a loss of nationality decision to reacquire Turkish citizenship.
