In Turkey, especially in the restaurant, cafe or entertainment sector, administrative actions are frequently applied against foreigners found to be working without a work permit. In practice, most foreigners, in this situation, believe that their residence permit is automatically cancelled.
However, when examining the decisions of Istanbul Administrative Courts, the Council of State, and the Constitutional Court, it is seen that a work permit violation does not automatically result in the revocation of the residence permit, and that the administration needs to take a separate action.
In this article, regarding foreigners caught working in a restaurant without a work permit, the issues of the Repatriation Center (GGM) process, deportation decision, and cancellation of the residence permit are analyzed in light of judicial decisions specific to Istanbul.
An analysis of the automatic cancellation of existing residence permits for foreigners caught working without a work permit and referred to the Repatriation Center (GGM), in light of the decisions of the Istanbul Administrative Court.
1. Work Permit Violation and Residence Permit Relationship
Concrete cases reflected in judicial decisions show that actions taken against foreigners caught working without a work permit in a restaurant or similar workplace are generally two-phased: a deportation decision in accordance with Article 54/1-(ğ) of Law No. 6458 and the cancellation of the existing residence permit. However, the decisions reveal that this cancellation manifests not as an “automatic result,” but rather as a separate administrative action or a legal assessment dependent on the deportation decisionr.
Specific Cases in Istanbul: In a decision dated 16/3/2022 by the Constitutional Court, it is observed that a direct deportation decision was made concerning a citizen of Kazakhstan found to be working without a permit in a restaurant in Istanbul, but this decision did not contain an automatic provision for the revocation of the residence permit. The Istanbul 1st Administrative Court rejected the case, confirming the fact of unauthorized work in this incident, but did not conduct an independent analysis regarding the mechanism for revoking the residence permit.
Examples of Administrative Practice: In another incident brought before the Istanbul 10th Administrative Court (Constitutional Court 7/7/2015), the deportation of a foreign national caught in a nightclub on suspicion of “working outside the purpose of their employment” was raised; the court revoked the deportation order on the grounds that unauthorized work could not be proven with concrete evidence. This situation implies that decisions regarding residence permits are also contingent on the requirement of concrete evidence and that no spontaneous (automatic) process is implemented.
2. Residence Permit Revocation Procedure and Judicial Review
The decisions show that the revocation of residence permits is generally carried out within the framework of Article 33 (for short-term) or Article 36 (for family residence permits) of Law No. 6458, on the grounds of “public order” or “using the permit for purposes other than those for which it was granted.”
Connection with Deportation Decision: In a decision dated 20.02.2024 by the 10th Chamber of the Council of State, it is observed that the Istanbul Governorship established both deportation and residence permit revocation procedures as two separate administrative actions. This situation confirms that the revocation does not occur automatically as a system output, but rather requires the administration to declare its will in this regard.
GGM Process and Residence Status: In cases involving foreign nationals referred to GGM (Directorate General of Migration Management) after a restriction record was detected during a residence permit extension application in Istanbul (AYM 22/9/2016), it is understood that the administrative detention process does not directly and legally terminate the existing residence permit, but it effectively prevents the exercise of the right of residence.
3. Secondary Sources and General Legal Approach
The following points have been evaluated through secondary sources to provide additional context in areas where decision texts contain limited information:
Secondary Source Note (Council of State 10th Chamber – 2016/2078 ): In an incident that occurred in Antalya, following the finalization of a deportation decision due to unauthorized work, it was stated that the family residence permit was cancelled in accordance with Article 36/1-(c) of Law No. 6458. This decision indicates that the cancellation of the residence permit was “based on” the deportation decision, meaning that the deportation decision constituted a legal ground for cancellation, but the process itself was a separate administrative act.
Secondary Source Note (Council of State 10th Chamber – 2016/989 ): In a case heard in Izmir, the administration’s attempt to cancel a foreign national’s “work-purpose residence permit” after their work permit was revoked was found unlawful by the court. This demonstrates that a change in work status does not always automatically invalidate the residence permit.
Secondary Source Note (Constitutional Court – 15/3/2022): In the case of a foreigner caught in a massage parlor in Bursa, it was emphasized that a work permit substitutes for a residence permit under Law No. 6735, but a work violation committed while holding an existing family residence permit should be subject to a proportionality review within the scope of the right to respect for family life.
4. Conclusion and Analysis
According to Istanbul Administrative Court decisions and relevant higher court precedents; the existing residence permit of a foreigner caught working without a permit in places like a restaurant or cafe is not automatically cancelled. The administration has the authority to simultaneously or concurrently cancel the residence permit when making a deportation decision under Law No. 6458; however, this cancellation process:
Requires a separate administrative action or a reasoned decision.
Must be based on the demonstration of unauthorized work with concrete evidence (police report, employer statement, etc.).
Is subject to judicial review, and can be cancelled within the framework of the “proportionality” principle, especially in situations such as family unity or long-term residence.
The reported decisions show that the Istanbul Governorship demonstrated an intention to cancel residence permits following the detection of unauthorized work, but that the courts meticulously examined the sufficiency of the investigations (neighbor statements, whether workplace inspection reports were signed, etc.) on which these actions were based.
Çalışma izni olmadan restoran, kafe gibi yerlerde yakalanan yabancı doğrudan deport edilir mi?
Hayır. Çalışma izni olmadan çalışmak tek başına otomatik deport sebebi değildir. İdare çoğu zaman 6458 sayılı Kanun’un 54. maddesi kapsamında sınır dışı kararı tesis etmektedir; ancak bu kararın alınabilmesi için izinsiz çalışmanın somut delillerle ispatlanması gerekir.
Mahkemeler, yalnızca polis tutanağı veya soyut iddialarla verilen sınır dışı kararlarını birçok dosyada iptal edebilmektedir. Özellikle iş yeri denetim tutanaklarının imzasız olması, tanık beyanlarının bulunmaması veya yabancının fiilen çalıştığını gösteren delillerin yetersiz olması durumunda mahkemeler deport işlemlerini hukuka aykırı bulabilmektedir.
Geri Gönderme Merkezi’ne gönderilen yabancının ikamet izni otomatik iptal olur mu?
Hayır. Bir yabancının Geri Gönderme Merkezi’ne sevk edilmesi ikamet iznini hukuken otomatik olarak sona erdirmez.
Ancak idare, sınır dışı kararı ile birlikte veya sonrasında ikamet iznini iptal edebilir. Bu durumda iptal işlemi ayrı bir idari işlem niteliğindedir ve idare mahkemesinde dava konusu yapılabilir.
Dolayısıyla GGM’ye gönderilmek, ikamet izninin otomatik olarak ortadan kalktığı anlamına gelmez; ancak fiilen kişinin Türkiye’de kalma imkanını ciddi şekilde kısıtlar.
Çalışma izni ihlali nedeniyle iptal edilen ikamet izni geri alınabilir mi?
Evet. İkamet izni iptali idari bir işlem olduğu için idare mahkemesinde iptal davası açılabilir.
Mahkemeler bu davalarda özellikle şu hususları incelemektedir:
izinsiz çalışmanın gerçekten gerçekleşip gerçekleşmediği
işlemin somut delillere dayanıp dayanmadığı
yabancının Türkiye’de aile hayatının bulunup bulunmadığı
işlemin orantılı olup olmadığı
Bu nedenle bazı durumlarda mahkemeler, çalışma izni ihlali iddiasına rağmen ikamet izni iptalini hukuka aykırı bularak işlemi iptal edebilmektedir.
Why is Expert Legal Support Necessary?
The procedures applied to foreigners apprehended on the grounds of working without a work permit often involve multiple administrative actions such as deportation decisions, administrative detention, and cancellation of residence permits. Each of these procedures is subject to separate legal actions and appeal processes.
In practice, many foreigners, unaware of their rights, cannot file applications within legal deadlines against deportation decisions or residence permit cancellations. Especially for foreigners held in centers such as the Tuzla Repatriation Center, the deadlines are quite short, and obtaining legal support is critically important.
Therefore, it is important for the process to be evaluated by an experienced Istanbul immigration lawyer. An Istanbul lawyer specializing in immigration law can examine the legality of administrative procedures and ensure the proper handling of lawsuits for the annulment of deportation decisions, the lifting of administrative detention, and the cancellation of residence permits.
2M Law Office, operating in the field of immigration law, provides legal consultancy, especially in Istanbul and its vicinity, for deportation decisions, administrative detention procedures, and residence permit cancellation cases issued against foreigners. The Tuzla immigration lawyer team working within the office carries out work aimed at protecting the legal rights of foreigners, especially in cases related to the Tuzla Repatriation Center.
Since incorrect or incomplete applications can lead to serious consequences for foreigners, such as deportation, entry bans, or loss of residency rights, it is of great importance for the process to be handled by an experienced Istanbul immigration lawyer.
