1. Definition of the Concept of Citizenship
When analyzing the citizenship law, it is seen that the concept of citizenship is expressed in different ways; it is used together with the words citizenship, nationality and the concept of dependence. Although many of these concepts are synonymous, dependence and citizenship cover different situations. While citizenship refers to the political and legal bond between a natural person and the state, dependence is the political and legal bond that binds a person (natural or legal person) or thing (aircraft, ships, etc.) to the state. As can be understood from the scope of these concepts, dependence is an expression that also covers citizenship, and since it has a broader meaning, it is not always correct to use it in the same sense as citizenship. [1]
There is no generally accepted and common definition of citizenship in the doctrine. Nomer attributes the reason for this to the fact that a definition of citizenship that is specific in nature and scope and accepted by all people has not yet been reached. [2]
In the most general sense, citizenship refers to the bond between the human element and the state. [3]
In other words, citizenship defines a bond between a person and the state, which has legal and political aspects. [4]
Under Turkish law, the definition of citizen is set out in subparagraph (d) of the first paragraph of Article 3 of the Turkish Citizenship Law (TCL) as follows: “Turkish citizen refers to a person who is bound to the State of the Republic of Türkiye by the bond of citizenship”. [5]
2. Turkish Citizenship Law Nr. #5901
2.1. Preparation and Justifications of the Turkish Citizenship Law Nr. #5901
Law Nr. #403 has undergone amendments since its entry into force, and the justified criticisms brought to the current text of the Law have not gone unanswered. The lawmaker has brought to the agenda to ensure the systemic integrity within the citizenship law itself, as well as to follow the developments in globalization and directive principles in citizenship law and to update the Law Nr. #403 in this direction, which led to initiation of the current Turkish Citizenship Law Nr. #5901. [6]
The draft Turkish Citizenship Law and its justification, as drawn up by the Ministry of Interior, were first submitted to the Turkish Grand National Assembly (TGNA) by and through the Prime Ministry's cover letter dated April 7, 2006 and numbered #1824. At the end of the 22nd Legislative Year, the Draft Law bearing the basis number #1/1192, which was not discussed and became obsolete, was re-submitted to the TGNA in the 23rd Legislative Year by and through the Prime Ministry's letter dated November 8, 2007 and numbered #4226 and was given the basis number #1/458. The Presidency of the Turkish Grand National Assembly referred the Draft Law to the European Union’s Harmonization, Justice and Foreign Affairs Committees, and to the Committee on Interior Affairs. The Committee on Interior Affairs and the European Union’s Harmonization Commission submitted their reports on the bill to the Presidency of the Turkish Grand National Assembly in the 22nd Term and the 23rd Term, the Committee on Interior Affairs submitted its report to the Presidency of the Turkish Grand National Assembly on 28.06.2006 with the text of the new bill, with the number #1232 and the number #90. [7]
In the general justification of the Draft Law, first of all, the reason why a new regulation on citizenship law is needed is answered and it is stated that the amendments made as a result of the needs arising within the framework of the conditions of the period disrupted the systematic of Law No. 403. The general justification also emphasizes the amendment to Article #66 of the Constitution and the necessity of harmonization with the provisions of the Civil Code.
In the general justification, the European Convention on Nationality is also referred to and the need to make a regulation in accordance with this Convention is mentioned. In fact, more than one reference to this Convention in the general justification creates the impression that the Law is drawn up on the basis of a Convention to which we are not a party, and there is an opinion in the doctrine that it would be correct to include other sources of international law in the general justification. [8]
2.2 Turkish Citizenship Law Nr. #5901 in General
Turkish Citizenship Law does not prohibit the cases of multiple citizenships. This is because the directive principle of one citizenship for all has lost its effect.
Interpretation of multiple citizenship situations under the European Convention on Nationality is in the direction of solving the problems arising from these situations rather than preventing the possession of multiple citizenships. It is possible to say that the directive principle that everyone should have only one citizenship is not a goal to be achieved under the Turkish Citizenship Law , considering that acquisition of the citizenship of another state by Turkish citizens of their own will without permission is not sanctioned, as the case under the Law Nr. #403. [9]
The system of acquisition of Turkish citizenship under the Law Nr. #403, which was criticized in the doctrine and in the general justification of the Draft Turkish Citizenship Law , has been amended by the Law Nr. #5901. The system in the Draft Law is a modern approach that has also found its supporters in the doctrine. While the Law Nr. #403 set out acquisition of Turkish citizenship under 3 headings by focusing on the will of the person, as explained above, this system has been changed under the Turkish Citizenship Law. Acquisition of citizenship is set out under two headings under the Turkish Citizenship Law; namely by birth (original) or after birth (acquisition). [10]
While the Law Nr. #403 did not define the concepts in the text of the law, the Turkish Citizenship Law, on the contrary, defines some of the concepts (multiple citizenships, foreigners, etc.) under Article #3. In addition, while the definition of child is not included under the Turkish Citizenship Law, this concept is defined under the Regulation of the Turkish Citizenship Law. In subparagraph (c) of Article 3 of the Regulation of the Turkish Citizenship Law, a child is defined as “a person who has not turned the age of eighteen”. In subparagraph (e) of the same article, the concept of adult is defined, stating that this concept corresponds to the concept of adult person according to the Turkish Civil Code.
2.3 Differences in Provisions on Marriage
The systematic gaps in the Law Nr. #403 were considered to be mostly related to other types of acquisition or loss of citizenship in the law, and the problems regarding acquisition of Turkish citizenship through marriage were solved to some extent with the amendment made to the Law Nr. #403 through the Law Nr. #4866, and therefore, acquisition of citizenship through marriage was not amended much. The most important amendment regarding the said acquisition is that acquisition of Turkish citizenship through marriage is set out among the ways of acquisition of Turkish citizenship with the decision of the competent authority. Thus, the debates arising from the place of acquisition in Law Nr. #403 have come to an end. However, the conditions of being married to a Turkish citizen or having settled in Türkiye with the decision of marriage, which are listed in Article 7 of Law Nr. #403 on exceptional acquisition of citizenship, are not included in the Turkish Citizenship Law. [11]
In the event of the death of the foreign spouse who is a Turkish citizen after the application for acquisition of citizenship, it did not include any regulation regarding living in family unity with respect to the application of the surviving foreign spouse. In the doctrine, the absence of this condition is an innovation introduced by the Turkish Citizenship Law , and it has been criticized that it was not required only for surviving foreign spouses who applied for citizenship under the previous regulation, and it has been argued that foreign spouses who have lived in a three-year marriage union should benefit from this provision even if they do not apply. [12]
2.4. Acquiring Turkish Citizenship through Marriage
Acquisition of citizenship through marriage is set out under Article 16 of the Turkish Citizenship Law. Parallel to the amendment introduced by the Law Nr. #4866, the first paragraph of the article states that Turkish citizenship cannot be acquired directly through marriage. According to this provision, foreigners who have been married to a Turkish citizen for 3 years and who are still married may apply for acquisition of Turkish citizenship through marriage. Pursuant to the Article, the applicants are required to “live in family unity, not engage in any activity incompatible with the union of marriage, and not have any condition that would constitute an obstacle in terms of national security and public order”. As can be seen, the conditions of being married for at least three years, continuing the marriage and living in family unity, as set out in Article 5 of the Law Nr. #403 as amended by the Law Nr. #4866, have been preserved under the new regulation, and the conditions of “not engaging in an activity incompatible with the union of marriage” and “not having a situation that would constitute an obstacle in terms of national security and public order” have been added to these conditions. [13]
Although the condition of not engaging in an activity that is incompatible with the union of marriage is not included under the Law, subparagraph 2/2-b of the Regulation Nr. #2004/7275 stipulated “not to engage in any activity such as prostitution, mediating or forcing prostitution, trafficking in women”.
Not engaging in an activity incompatible with the union of marriage meets this condition. In the doctrine, Tiryakioglu justified use of this term and stated that a condition that starts with prostitution or mediating prostitution would create a prejudice against foreigners. [14]
Likewise, although it is not included under the Law Nr. #403, not having a condition that would constitute an obstacle in terms of national security and public order is included among the conditions sought in Article 2/2-c of the Regulation Nr. #2004/7275. Although the Regulation mentions general morality in addition to national security and public order, this issue is not included in the Turkish Citizenship Law.
The condition of “living in family unity”, which is listed as one of the main conditions for acquisition of Turkish citizenship through marriage under the Law, will be objectively evaluated by the citizenship application examination commission established by the Turkish Citizenship Law. The commission will investigate existence of a real marriage and cohabitation between the spouses. The examination and investigation conducted by the Ministry of Interior through the relevant provincial police directorate and the commission has the characteristics of a security investigation (Articles #28-30 of the Regulation of the Turkish Citizenship Law). The duty of the commission should be to prepare the file within the limits of its authority set out in the Law and Regulation of the Turkish Citizenship Law, to complete the deficiencies in the applications, if any, and to send the file, prepared as such, to the Ministry of Interior. However, the scope of the investigation to be conducted by the provincial police directorates in the Regulation of the Turkish Citizenship Law includes the phrase “behaviors such as engaging in prostitution and mediating in prostitution” and it is not clear what criteria will be used to determine “such behaviors” in the text. [15]
3. Conditions for Acquiring Citizenship through Marriage
Acquisition of Turkish citizenship through marriage is regulated under Article 16 of the Turkish Citizenship Law. Accordingly, persons who meet the conditions set forth in the article may acquire Turkish citizenship through marriage. These conditions will be discussed one by one below.
3.1. A Valid Marriage of at least Three Years
Article 16 of the Turkish Citizenship Law stipulates that in order for a foreigner to acquire citizenship through marriage, s/he must have been married to a Turkish citizen for at least three years and that this marriage must be ongoing at the time of application. Although not mentioned in the article, there is no doubt that this marriage must be a valid marriage under the Turkish law. [16]
The legal validity of the marriage will be determined in accordance with the relevant provisions of the International Private and Civil Procedure Law due to the foreign element. Since the conjugal union is closely related to the personal situation of the parties, it is beneficial that the law applicable to marriage is the law of the state where the parties have intensive and close relations. Since marriage brings about significant changes in the personal status of the parties, it is preferred that the law applicable to the marriage of the parties is the law of the state of which the parties are citizens, or the law of the state where the parties have their domicile or habitual residence.
Accordingly, validity of the marriage will be interpreted in accordance with the provisions of Article 13/1 of the International Private and Civil Procedure Law in terms of the capacity and conditions of marriage, and Article 13/2 of the International Private and Civil Procedure Law in terms of formal validity of the marriage. Taking into account the interests of the parties, Article 13 of the International Private and Civil Procedure Law stipulates that the national law of each party at the time of marriage shall apply to the capacity and conditions of marriage. As for the form of the marriage, the law of the place where the marriage took place will be applicable. Therefore, if one of the parties does not have the capacity to marry according to the national law, if the valid conditions for marriage are not met or if the formal requirements are not complied with, the marriage will be deemed invalid. [17]
If the spouses marry in Turkey, the marriage must have taken place before the competent Turkish authorities. Under the Turkish law, the marriage authorities are the mayor or the officer to be assigned by the same within the borders of the municipality and the headman in villages. Pursuant to the Marriage Regulation, the Ministry of Interior may authorize provincial civil registration and citizenship offices, provincial and district mufti offices and relevant foreign missions to act as marriage registrars. However, pursuant to the second paragraph of Article 7 of the Marriage Regulation, if one of the spouses is a foreigner, the competent authorities are municipal officials and civil registration offices, and the procedure must be carried out within the borders of the province or district.
Another condition for acquisition of Turkish citizenship through marriage is that the marriage of the foreigner and the Turkish citizen must have lasted for at least three years. The three-year period must expire as of the date of application. In addition, this marriage must continue on the date of the decision to be made by the Ministry of Interior on the application of the foreigner. If the Turkish citizen spouse of the foreigner applying for Turkish citizenship is a person who subsequently acquired Turkish citizenship, the calculation of the three-year period shall be based on the date of acquisition of Turkish citizenship by the person who subsequently acquired Turkish citizenship, in accordance with paragraph 25/3 of the Regulation of the Turkish Citizenship Law.
3.2. Living in Family Unity
One of the conditions for acquiring Turkish citizenship through marriage, as set out under Article 16 of the Turkish Citizenship Law , is living in a family union. The condition requires that the marriage must have lasted for 3 years and that the marriage must have continued within a family unity. [18]
The Turkish Citizenship Law does not include the condition of “actual cohabitation”, which is also included under the Law Nr. #403, and the condition of living in family unity is deemed sufficient. In this context, living in family unity is defined in a meaning that includes actual cohabitation in the usual way, but does not exclude the inability of the spouses to live together in exceptional cases. In the doctrine, Gungor argued that, based on this concept, as long as the feeling of being a family does not disappear, it is possible for the foreign spouse who cannot live together temporarily, regardless of the reason, to meet this condition. [19]
It can be said that the condition of living in family unity is sought as a condition that confirms whether the marriage is not only for the purpose of acquiring citizenship, but whether the marriage is actually entered into with the intention to marry. Whether or not one lives in a family unit is determined through an examination and investigation by the provincial police directorate and the citizenship application examination commission.
There are two exceptions to living in family unity, one arising from the law and the other from case law. The first exception is stated in the second paragraph of Article 16 of the Turkish Citizenship Law. However, this condition will not be fulfilled if the marriage is terminated due to reasons such as death or divorce before the application for citizenship. [20]
The second exception is disruption of the family unity due to force majeure. In the doctrine, it is argued that it would be fair to accept that, in addition to force majeure, an unexpected event or a situation that is impossible for the person to avoid (cas fortuit) also constitutes an exception to the requirement of family unity.
3.3. Foreign Spouse Not Engaging in an Activity Incompatible with the Conjugal Union
The person who will acquire Turkish citizenship through marriage must not engage in an activity incompatible with the conjugal union. Under Article 28/1-b of the Regulation of the Turkish Citizenship Law, “behaviors such as engaging in prostitution or mediating in prostitution” are listed as examples of what this means. As can be seen, this requirement meets the requirements of the Regulation Nr. #2004/7275. Considering the historical process of acquiring citizenship through marriage in our law, it is seen that the purpose of the lawmaker in introducing this condition is to prevent the service of this unity such as marriage, which is considered sacred by the Turkish nation, for immoral purposes.
Whether there is any “engaging” or not will be determined by an investigation to be conducted by the provincial police directorate. The activities that are incompatible with the conjugal union are exemplified under the Regulation of the Turkish Citizenship Law, and what “such behaviors” are and whether they are incompatible with the conjugal union are evaluated by the competent authorities according to the characteristics of the case. According to Nomer, these activities are the acts and behaviors that would cause the foreigner to divorce.
Gungor argues that in order not to acquire Turkish citizenship due to incompatibility of the activity with the conjugal union, the said activity must be an activity that started after the union of marriage was established, continued or repeated within the conjugal union. [21]
3.4. The Foreign Spouse Does Not Have Any Obstacle in terms of National Security and Public Order
In the ways of acquiring citizenship by the decision of the competent authority (except for reacquisition of Turkish citizenship) under the Turkish Citizenship Law, in addition to the conditions specific to each institution, the condition of “not being an obstacle in terms of national security and public order” is sought. Under the Law Nr. #403, although this condition was not included in the text of the law, it is seen in court decisions that there was a secret directive regarding this condition.
Article 16 of the Turkish Citizenship Law does not contain an explanatory provision on what should be understood by the condition that would constitute an obstacle in terms of national security and public order. With the condition added to acquisition of Turkish citizenship through marriage, both the criticism of legality brought during the applicability term of the Law Nr. #403 has been taken into consideration and the administration has been given a very wide discretionary power with an uncertain content in interpretation of the said condition. [22]
As mentioned above, the same condition is also included in subparagraph (g) of Article 11 of the Turkish Citizenship Law, which sets out the conditions for acquiring Turkish citizenship by the decision of the competent authority. Under justification of the said paragraph, it is stated that “it is aimed to prevent acquisition of Turkish citizenship by those who pose a danger to national security and who engage in activities against national interests and the integrity of the country, those who support such activities or those who are in relations with such persons or organizations, and those who engage in activities that disrupt public order such as riots, sabotage, espionage, arms and drug trafficking, forgery of documents”.
The concept of national security is defined in Article 2/1-d of the Presidential Decree on Organization and Duties of the Secretariat General of the National Security Council as “protection and safeguarding of the constitutional order of the State, its national existence, its integrity, all its interests in the international arena, including political, social, cultural and economic, and its treaty law against all kinds of external and internal threats”. The definition first explains the values that need to be protected and then emphasizes that these values must be protected against internal and external threats. Regarding public order, the Constitutional Court stated in one of its decisions that it is difficult to define the concept of public order precisely, and then stated that public order is an all-encompassing concept that aims to ensure peace and tranquility in society and to protect the state and state organizations.
National security and public order may limit fundamental rights and freedoms as they are directly related to continuity of the state. This situation can be found in many articles of the Constitution. Considering that even fundamental rights and freedoms are restricted by citing the concepts of national security and public order, it should be accepted as a matter of course that persons who have an obstacle in terms of national security and public order should not be naturalized in the citizenship law in which the state exercises its sovereign authority.
Persons who threaten national security cannot acquire Turkish citizenship through marriage. Examples of such persons are spies/agents, members of intelligence organizations or persons associated with any terrorist organization. There is no doubt that the State of the Republic of Türkiye may reject the requests of these persons to acquire Turkish citizenship through marriage in accordance with its sovereignty. However, since this condition is sought for the foreign spouse, it is not important that the Turkish citizen married to the foreign spouse has an obstacle in terms of national security and public order.
The fifth paragraph of Article 72 of the Regulation of the Turkish Citizenship Law entitled “Research, investigation and validity period” is related to the condition although it does not include the terms national security and public order. According to the provision of the paragraph, “As a result of the research carried out by the relevant institutions, if it has been found that s/he has been engaged in activities aimed at overthrowing the state order established by the Constitution, has cooperated with or materially supported those engaged in these activities, has been engaged in activities related to crimes against the indivisible integrity of the Republic of Turkey with its country and nation, at home or abroad, within the scope of the Anti-Terrorism Law Nr. #3713, Those who are found to have participated in the crimes of espionage and treason, arms and narcotics smuggling, human trafficking or to have been in contact with them, and those who are sentenced to imprisonment for more than six months, even if it has been postponed, expired, the announcement of the verdict has been postponed, withheld, converted into money or pardoned, except for negligent crimes, s/he cannot acquire Turkish citizenship." According to Erten, although the distinction between national security and public order is not clear in the paragraph, the first part of the provision, which lists the acts, is related to national security, while the second part, which takes into account the court decision and the duration of the prison sentence, is related to public order.
The Regulation of the Turkish Citizenship Law sets out certain provisions for determination of whether a person is an obstacle in terms of national security and public order. However, while Article 25/2-c of the Regulation of the Turkish Citizenship Law stipulates that the application of persons who are found to be “on trial for any offense or convicted or detained” will not be accepted, Article 26/1-e of the same Regulation states that the documents required for the application for acquisition of Turkish citizenship through marriage include “a certified copy of a court decision finalized for any offense”, which contradicts each other.
Pursuant to the second paragraph of Article 35 of the Regulation of the Turkish Citizenship Law, an archive search will be requested from the Undersecretariat of the National Intelligence Organization and the Directorate General of Security “in order to determine whether there are any circumstances that would constitute an obstacle in terms of national security and public order” for the applicant to acquire Turkish citizenship through marriage. The conditions determined in the archive search to be conducted pursuant to the fourth paragraph of the same article must be clearly notified. [23]
Conclusion
Acquisition of Turkish citizenship through marriage pursuant to Article 16 of the Turkish Citizenship Law is set out. There is no direct acquisition of Turkish citizenship through marriage and certain conditions must be met. In order for a foreigner who is married to a Turkish citizen to acquire Turkish citizenship, s/he must have been married for at least three years, live in a conjugal union, not engage in activities incompatible with the conjugal union and not have any circumstances that would constitute an obstacle in terms of public order and national security.
The presence of these conditions will be examined by the commission specified under the regulation, married persons will be evaluated separately or jointly, and it will be checked whether they fulfill these conditions. In the event that it is decided that these conditions are met, this information will be sent to the ministry and the decision to acquire citizenship through marriage will be made by the ministry.
Shiva Malkoç, Legal Intern
References:
1. Doğan, Vatandaşlık, S 5,
Berki, Osman Fazıl: Türk Hukukunda Evlenmenin Tabiiyet Tesiri, Journal of
Ankara University Faculty of Law, 1972, V3, P1, P.15 et al. (Evlenme); Göğer, P.6;
Fişek, Hicri, Türk Vatandaşlık Hukuku, Ankara1959, p.12.
2. Hicri, Türk Vatandaşlık
Hukuku, Ankara,1959, p.12
3. Uluocak, Nihal, Türk
Vatandaşlık Hukuku, Ankara1986, p.5 et al.
4. Doğan, Vahit, Türk
Vatandaşlık Hukuku, Ankara 2019
5. 5901 Sayılı Türk
Vatandaşlığı Kanunu, OJ,12.06.2009, p.27256.
6. Çözme, Rıza Furkan, Türk
Vatandaşlığının Evlenme Yoluyla Kazanılması, Ankara 2021, S.52
7. Turkish Grand National
Assembly, Draft Turkish Citizenship Law and Reports of the European Union’s
Harmonization and Interior Committees (Date of Access: 04.09.2020)
8. Erten, Rifat, Türk
Vatandaşlığı Kanunu Tasarısı’nın Türk Vatandaşlığını Kazanılmasına İlişkin
Hükümleri Hakkında Değerlendirmeler, Ankara Bar Association, 2008, y.66, p.38
9. Erten, Rifat, Türk
Vatandaşlığı Kanunu Tasarısı’nın Türk Vatandaşlığının Kazanılmasına İlişkin
Hükümleri Hakkında Değerlendirmeler, Ankara Barosu Derneği, 2008, y.66, p.39
10. Çözme, Rıza Furkan, Türk
Vatandaşlığının Evlenme Yoluyla Kazanılması, Ankara, 2021, p.53
11. Çözme, Rıza Furkan, Türk
Vatandaşlığının Evlenme Yoluyla Kazanılması, Ankara 2021, p. 54
12. Giray, Faruk Kerem,”5901
Sayılı Türk Vatandaşlığı Kanunu Hakkında Değerlendirme”,2011, p.3I87
13. Erten, Tasarı, p.50
14. Tiryakioğlu, Bilgin,
Tasarı, Ankara,2008
15. Çözme, Rıza Furkan, Türk
Vatandaşlığının Evlenme Yoluyla Kazanılması, Ankara 2021, p.55
16. Erkan, Mustafa, Türk
Vatandaşlığı Kanununda 7039sayılı Kanun ile Yapılan Değişikliklerin
İncelenmesi,2019, p. 52
17. Sirmen, Kazım Sedat, Eş
Cinsel Birliktelikler ve Bunların Kanunlar İhtilafı Hukukunda Düzenlenişi
,2009, p. 4
18. Nomer, Ergin, Türk Vatandaşlık Hukuku, İstanbul, 2019
19. Güngör, Gülin, Tabiiyet Hukuku, Ankara,2020, p.139
20. Güngör, Gülin, Tabiiyet Hukuku, Ankara,2020, p.134
21. Çözme, Rıza Furkan, Türk Vatandaşlığının Evlenme Yoluyla Kazanılması,
Ankara 2021, p. 61
22. Doğan, Vahit, Türk Vatandaşlık Hukuku, Ankara 2019, p.95
23. Çözme, Rıza Furkan, Türk Vatandaşlığının Evlenme Yoluyla Kazanılması,
Ankara 2021, p. 64-65
