Assc. Prof. Dr. Bulent Cicekli printable version send your friend

1.       Introduction

The existing Turkish Nationality Act No. 403 of 1964 has been amended four times since its first enactment.[1] What is the citizenship policy[2] behind all of these amendments made in Turkish Nationality Law? What are the factors determining the citizenship policy being pursued? What types of development has this citizenship policy responded to?
            Often, population movements into a country play a significant role in the development of the citizenship concept in a country and in the formation of policies in this regard. Further, citizenship policies tend to be formed and developed as a response to such population movements. One aim of the present study is to assess to what extent such a general tendency is confirmed within the context of Turkish citizenship policy.
            To this end, first of all, the system of Turkish citizenship law has been considered in general in order to provide the reader with the background required to follow the discussion in the later parts of the study. Secondly, having considered the changes and developments which have occurred in Turkish citizenship law between 1980-2000, the basic features of Turkish citizenship policy within this period have been highlighted. Within this context, the factors influencing the formation of citizenship policy have been discussed. In particular, the discussion is focused on how emigration movements from Turkey to foreign countries and the Turkish population living abroad are effective in the formation of this policy. Finally, the role of the increasing population movements towards Turkey in recent years in the determination of Turkish citizenship policy for the years to come is discussed.
2.      The System of Turkish Citizenship Law
In order to determine the basic features of Turkish citizenship policy between 1980-2000, it would be appropriate to carry out a short assessment of developments in Turkish citizenship law that took place in the preceding period. It is possible to consider the historical development of the Turkish citizenship law under three periods on the basis of the legal regulations which were then existing:[3]
I.                    Ottoman Nationality Regulation of 23 January 1869
II.                 Turkish Nationality Act No. 1312 of 23 May 1928
III.               Turkish Nationality Act No. 403 of 11 February 1964
From a historical point of view, the Ottoman Nationality Regulation appeared out of necessity.[4] Non-Muslim Ottoman subjects were eager to acquire the nationality of the country to which the Ottoman Empire granted Capitulations (conventions granting certain rights to foreigners) in order to benefit from such Capitulations. Thus, it became necessary to enact legal regulations to stop such misuse.
Although, the Ottoman Nationality Regulation[5] recognises the principle of ius sanguinis as the principle form of obtaining nationality, it also includes the principle of ius soli as a way of obtaining nationality.[6] In addition to this, the acquisition of nationality following the decision of an official authority is also recognised (Article 3-4). The terms and conditions for the renunciation of the Ottoman nationality are stated in Article 5 of the Regulation, and different forms of nationality losses are provided for in Article 6 and 7. The position of children of those who renounce the Ottoman nationality is stated in Article 8 and the evidence of nationality is regulated in the last Article (Article 9).
The Turkish Nationality Act No. 1312 of 23 May 1928 consisted of three parts:[7] 1) acquisition of nationality, 2) loss of nationality and 3) impact of marriage on nationality. Acquisition of nationality by blood was included with its widest scope, whereas acquisition of nationality by soil was recognised only as an exceptional application (Article 1-2). Children of Turkish parents acquired Turkish nationality irrespective of their birth place. Further, children born in Turkey from foreign parents were entitled to opt for Turkish nationality within three years after reaching the age of majority (Article 3).
The acquisition of nationality following the decision of an official authority is provided for in Article 5 and 6 and different forms of nationality losses are regulated in Article 7 et. seq. Finally, the impact of marriage on nationality is provided for as a separate section (Article 13 et. seq.).
It would be more appropriate to consider the general system of the existing Turkish Nationality Act together with the respective provision of the Constitution regulating the issue. The general principles as regards Turkish nationality are stated in Article 66 of the 1982 Constitution, which is verbatim the same as Article 54 of the 1961 Constitution. Article 66 of the 1982 Constitution states that:
"Every person tied to the Turkish state with the bond of nationality is Turkish.
The child of a Turkish father or mother is Turkish.[8]
Nationality is acquired under the conditions prescribed by law and only lost under the circumstances specified by law.
No Turkish person may be denaturalised, unless he/she commits an act not in conformity with allegiance to the state.
No one may be barred from having recourse to legal remedies against decisions and acts concerning denaturalisation."
The present Turkish Nationality Act is comprised of three main parts:[9]
1)      "Acquisition of Turkish nationality" (Articles 1-18),
2)      "Loss of Turkish nationality" (Articles 19-37), and
3)      "Evidence and Legal Remedy" (Articles 38-41).
There are three distinct procedures that may be specified as regards the acquisition of  Turkish nationality in the Turkish Nationality Act:
1)      Statutory acquisition of nationality (Article 1-5),
2)      Acquisition by means of naturalisation (Articles 6-11), and
3)      Acquisition by means of opting (optional acquisition) (Articles 12-13).
It would not be wrong to conclude that the above three procedures are categorised by the Turkish Nationality Act on the basis of whether the will of the respective person plays a role or not in the acquisition of the nationality.[10] Accordingly, under the following circumstances, Turkish nationality is acquired automatically as a result of the command of statute per se:
1)      Acquisition of nationality by means of birth (Articles 1-2 and 4),
2)      Acquisition of nationality by means of adoption (Article 3), and
3)      Acquisition of nationality by means of marriage (Article 5).
Turkish nationality is here acquired automatically upon the realisation of conditions specified by the statute regardless of the presence of the will or petition of the respective person.
            As far as the acquisition by means of naturalisation is concerned, there needs to be the approval of the official authority specified by law to acquire Turkish nationality in addition to the will or demand of the respective person. There are three different procedures that may be applicable as far as acquisition by means of naturalisation is concerned:
1)      Ordinary naturalisation (Article 6),
2)      Exceptional naturalisation (Article 7), and
3)      Re-naturalisation (Article 8).
Different conditions must be fulfilled for each of these three procedures and acquisition by means of ordinary naturalisation is the general procedure that one must usually follow. Only certain categories of persons listed in Article 7 can benefit from exceptional naturalisation and the conditions of Article 7 are much easier to meet, as compared to ordinary naturalisation. For instance, residence in the country for a period of five years and confirmation of the intention to settle in the country are not required under the exceptional naturalisation procedure, even though they are the conditions that must be fulfilled under the ordinary naturalisation procedure. As regards re-naturalisation, those who have previously lost Turkish nationality apply to claim Turkish nationality back without having to fulfil a residence requirement.
In the optional acquisition (acquisition by means of opting), the acquisition of Turkish nationality depends entirely on the will (demand) of a person (Articles 12-13). The respective person changes his/her nationality with his/her own will by having recourse to the opportunity given by the statute. The right of option produces a legal result, if the persons, who are entitled to do so, state their intention to acquire Turkish nationality to the authorised bodies within the prescribed time limit.
Foreigners entitled to benefit from the right of option are those persons who were previously Turkish nationals but who later lost Turkish nationality by way of marriage or as a result of renunciation of Turkish nationality of their father or mother.[11] Here, we have an automatic re-acquisition of nationality, which produces a direct result on the basis of the will of the respective person.
Loss of Turkish nationality can also be considered under three categories again depending on the role of the respective person's will in the loss of nationality:[12]
1) Possibility of renouncing one's own nationality as a matter of a subjective right: Here, the respective person may automatically renounce his/her own nationality without having to go through any other procedure. Among the cases of loss of nationality under this category, marriage (Article 19), recourse (Article 28) and loss of nationality by way of opting (Article 27) are provided for in the Turkish Nationality Act.
            In the loss of Turkish nationality by way of marriage on the basis of the will of a person, the respective person acquires a foreign nationality by issuing a statement of renunciation of Turkish nationality pursuant to Article 42 of the Turkish Nationality Act. This right is only vested in a Turkish woman marrying foreign man as a matter of privilege.
            Recourse (Article 28) provides a possibility for a woman who previously became a Turkish national upon marrying a Turkish man to return later on with her will to her previous nationality upon dissolution of this marriage and to renounce her Turkish nationality accordingly.
            Loss of nationality by way of opting (optional loss of nationality) is a right that can only be enjoyed by the persons specified by the statute (Article 27). The persons in question here are the children who could not be tied to the father in accordance with the principle of blood (ius sanguinis) upon birth and to whom Turkish nationality is given to prevent them from becoming stateless persons.[13]
2) Demand for permission to renounce Turkish nationality and permission of the authorised body: Under this category, both the will of the person and that of authorised body must be present for the loss of nationality. Those persons who wish to renounce Turkish nationality but cannot enjoy the possibilities available under the above categories can renounce Turkish nationality using this procedure. For the loss of nationality under this procedure, the authorised body (the Committee of Ministers) must give permission in addition to the demand of the person for renouncing his/her nationality (Articles 20-23). Further, a person wishing to acquire another state's nationality may also realise his/her wish by retaining his/her Turkish nationality (permission for dual nationality) (Article 22/3).
3) Loss of Turkish nationality upon the decision of an authorised body: Personal will is not taken into account in this category of loss of nationality. In other words, a person losses Turkish nationality against his/her will. The following legal sanctions are provided for in the Turkish Nationality Act under this category: annulment of the naturalisation decision (Article 24), dismissal (Article 25), and discharge (Article 26).
            In relation to the annulment of the naturalisation decision, the body issuing it (Committee of Ministers) cancels the decision that it has previously taken due to mistakes (defects) in the original naturalisation decision. Under this procedure, the naturalisation decision is annulled because of the respective person having hidden important points having an impact on the naturalisation decision or due to that person's false statement.
            Dismissal (kaybettirme) and discharge (çıkarma)[14] are the sanctions to be faced by those who commit actions not in conformity with the allegiance to the state. What these actions are, are stated separately for the sanctions of dismissal (kaybettirme) (Article 25) and discharge (çıkarma) (Article 26). Nevertheless, since the terms "can be given" and "can be discharged" are used in the relevant articles, the enforcement of these sanctions depends on the margin of appreciation of the Council of Ministers. The results of the sanction of "discharge" (çıkarma) are heavier (Article 35).
For instance, Turkish nationals acquiring another foreign nationality upon their will without obtaining the required permission or those persons abroad avoiding to perform military service within statutory limits despite official notification and so on may receive the sanction of dismissal (kaybettirme) (Article 25).[15] Whereas Turkish nationals carrying out activities against the internal and external security of the state as well as its economical and financial security may receive the sanction of discharge (çıkarma), on the condition that they are not within the country and that it is not possible to initiate or complete criminal proceedings or execute the judgement.[16]
            The Turkish Nationality Act also includes provisions regarding rules of evidence and legal remedies available as far as Turkish nationality is concerned (Articles 38-41). Since the actions taken as regards Turkish citizenship are considered to be administrative acts and actions, such actions are also subject to judicial review under the rules of the administrative procedure law.
3. Developments of Turkish Nationality Law Between 1980-2000
All of the four amendments taken place in the Turkish Nationality Act since its first enactment in 1964 have been witnessed within the period studied (between 1980-2000). In this section, changes realised in the Turkish Nationality Act are considered step by step, and policies behind these changes are discussed, and factors effective in the formation of such policies are analysed.
            It would be appropriate to consider the Turkish citizenship policy within the period 1980-2000 under three titles:
1)      Encouragement of dual nationality,
2)      Liberalising the conditions for permission to renounce Turkish nationality,
3)      Reserving the rights of those renouncing Turkish nationality by way of permission.
How and why these policies have developed and which factors have been effective in the formation of such policies are discussed below.
3.1 Policy of Encouraging Dual Nationality
The principle of prevention of statelessness and dual nationality, and the principle that nationality must not be imposed on anyone involuntarily are recognised to be among the basic principles of nationality law. Considering the issue of dual- or multi-nationality in terms of comparative law, it would appear that different domestic systems approach the issue with differing policies.
            In British law, dual or plural citizenship is a concept recognised and accepted since the famous Calvin's Case issued in 1608. In the present day British law, it is possible to apply for naturalisation after five years of residence, and renouncing the previous nationality is not a condition imposed.[17]
            In Dutch law, encouragement of plural nationality has been adopted as an official policy since the amendments made on 1 January 1992.[18] Up until this date, a person wishing to acquire Dutch nationality had to renounce his/her original nationality, if the law of the state which he was a national of allowed for this. Since then, the renunciation of one's original nationality has no longer been required in order to acquire Dutch nationality.
            In German law, dual nationality is commonly criticised often using the argument that a servant cannot serve two monarchs.[19] The doctrine of dual or plural citizenship was even once called as "evil doctrine". According to a dictum of the German Constitutional Court (Bundesverfassungsgericht), "dual nationality is an evil from the national as well as the international viewpoint, and it should be avoided in the interest of citizens and states."[20] As an instrument of this perception and policy, the renunciation of one's former nationality is still imposed as a basic condition for the acquisition of German nationality.
            Considering the issue from the perspectives of the Turkish nationality law and practice, it would not be possible to talk about the existence of such a basic principle as the prevention of dual citizenship. According to Nomer,[21] the prevention of dual nationality in Turkish nationality law is neither a principle nor a goal. In the event that foreigners acquire Turkish nationality, the Turkish Nationality Act is indifferent of the issue of whether these persons also retain their former nationality or not. For instance, Article 6 and 7 of the Turkish Nationality Act do not make a mention of such a point among the conditions to be fulfilled.
            Further, in Turkish law, it is not considered to be disloyal against the Turkish state to have a foreign nationality in addition to Turkish nationality. On the contrary, it appears that a perception which prefers individual interests to state interests as far as dual citizenship is concerned prevails.[22] It can also be argued that the existing Turkish nationality law has been gradually transformed into a structure which allows for the possibility of dual citizenship and even encourages dual citizenship.
            The aforesaid transformation can especially be seen with much clarity in the period which is the subject matter of the present study. Within this context, first of all, the amendments made in the Turkish Nationality Act by the Law No. 2383 can be considered. Within the framework of this amendment, firstly, the statement of "or [wish] of acquiring another state's nationality" has been added following the first sentence of Article 21. Thus, it is now recognised that it is possible to retain the nationality of another state in addition to demanding the renunciation of Turkish nationality. With this addition, beyond de facto cases of dual citizenship, it has become open for Turkish nationals to claim dual citizenship actively.
            The existing text of the Article is as follows:
            "The wish of renouncing Turkish nationality or of acquiring another state's nationality shall be submitted through a letter of application to the highest administrative authority of the place where the respective person resides in Turkey, or to the relevant Turkish consulate abroad.
            The documents completed by these authorities shall be sent to the Ministry of Interior to finish the required procedure."[23]
            Further, as a result of changes made by the Act No. 2383, a provision has been added to Article 22, which provides that "a certificate of permission may be issued by the Ministry of Interior for the person wishing to acquire another state's nationality in conformity with the principles specified by the Council of Ministers". Thus, it is made clear that it is the Ministry of Interior which is authorised for issuing permission for dual nationality. This amendment is complementary to the change in Article 21.
            According to the existing text of Article 22:
            "If the person wishing to renounce nationality is also the national of another state, he is presented with a renunciation certificate at once.
            If the person wishing to renounce nationality is not the national of another state, he is presented with a certificate of permission by the Ministry of Interior, and a renunciation certificate when he/she produces a certificate showing that he has acquired the nationality of the respective state."[24]
            In addition to the amendments made in the Nationality Act, the facilities given to dual nationals in relation to military service constitute further incentives in favour of dual nationality. On the basis of principles to be determined by the decision of the Council of Ministers, Turkish citizens who are born or residing abroad or who have immigrated to a foreign country before the age of majority and who have also acquired the nationality of the state of residence shall be exempted from the obligation to perform military service upon their request, provided that they produce documents to the effect that they have performed military service in the other country, which they are the citizens of.[25] Whereas in cases where military service is not obligatory as in the UK, the dual citizen is still under the obligation of performing military service. [addition]
            Thus, those who are nationals of another state as well as of Turkey shall be exempted in Turkey from the obligation to perform military service in case they have performed military service in the other country of nationality. This too clearly functions as an incentive in favour of dual nationality.
3.2 Policy of Liberalising Conditions for Permission to Renounce
The conditions for permission to renounce Turkish nationality are stated in Article 20 of the Turkish Nationality Act. This article has been amended twice, firstly by the Act No. 2383 and secondly by the Act No. 4112. Paragraph (c) of Article 20 which regulates the conditions for permission to renounce Turkish nationality has been changed by the Act No. 2383 as in the following manner: "Having acquired a foreign nationality for whatever reason or having convincing evidence as regards to the fact that he/she will acquire a foreign nationality." [26]
            In the previous version of the Article, the term "without his will for whatever reason" was used instead of the present term "for whatever reason". Permission to renounce Turkish nationality was subject to the future possibility of acquiring foreign nationality or having acquired a foreign nationality involuntarily (without the will of the respective person).
With the above amendment, it is in principle recognised that Turkish citizens can voluntarily (upon their will) acquire a foreign nationality without loosing the Turkish nationality. However, in any case, it is in principle required that the respective person makes a request either for permission to renounce Turkish nationality or permission of dual nationality. Otherwise, Turkish nationals who voluntarily acquire foreign nationality without obtaining the required permission may be faced with the sanction of dismissal (kaybettirme).[27]
With the second amendment realised by the Act No. 4112, the requirement of performing compulsory military service is no longer made a condition for permission to renounce Turkish nationality. The former version of the Article prior to this amendment is as follows:
"Renunciation of Turkish nationality is subject to the permission of the Council of Ministers under the following conditions:
a)       Having sound mind and majority,
b)       Having performed or been regarded to have performed compulsory military service.
It is possible that the Ministry of Defence gives permission regarding those whose exemption from the condition of performing compulsory military service is viewed as indispensable. However, the person having renounced Turkish nationality in this manner is obliged to perform military service in case he is re-naturalised.
c)        Having acquired a foreign nationality for whatever reason or having convincing evidence as regards to the fact that he/she will acquire a foreign nationality."
Under the former Article 20(b) which was annulled by the Act No. 4112 in 1995, the person requesting permission to renounce must have performed or be regarded to have performed compulsory military service. As a result of the annulment of this provision (paragraph (b)), it has now become possible for Turkish male citizens who have not yet performed military service to request permission to renounce Turkish nationality from the Council of Ministers. Thus, it is ensured with this change that the conditions for permission to renounce Turkish nationality has been liberalised.
It is a very significant indicator of the citizenship policy not to require anymore the performance of military service in relation to the permission for renouncing nationality. Taking into account the fact that a significant portion of persons who reside abroad and may be able to request permission for renouncing nationality will be a young and male population, this importance shall be much better appreciated. Here, it can be observed that the law maker departs from the basic principle that "nationality must not be imposed involuntarily".
It is thus seen that the service for the motherland stated as the right and duty of every Turkish citizen in Article 72 of the Constitution is no longer a requirement in terms of renunciation of nationality. This does not imply that the service for the motherland is not significant anymore for the Turks residing abroad. With this change, the law maker and policy makers in Turkey wish to ensure that the persons under this category may be able to renounce their nationality under a certain freedom of action. The paramount reason effective for this Turkish perspective is the fact that domestic laws of many countries such as Germany, where there is a large resident population of Turkish nationals, require the renunciation of the former nationality for the acquisition of their own nationality.[28]
3.3 Policy of Reserving the Status and Rights of Those Renouncing Nationality by Way of Permission
Some of the rights of those persons obtaining permission from the Council of Ministers to renounce Turkish nationality are reserved by the Act No. 4112.[29] Within this context, significant changes have been made in Article 29. The existing version of the Article is as follows:
"The persons losing Turkish nationality in accordance with this Act shall be treated as foreigners as of the date of loss of nationality. However, the persons who acquire Turkish nationality at birth and later on acquire a foreign nationality as a result of obtaining permission for renunciation from the Council of Ministers and the legal heirs thereof shall continue to benefit from the same rights vested in Turkish citizens in the country on matters such as residence, travel, working, inheritance, acquisition and transfer of movable and immovable goods, on the condition that the provisions concerning the national security and public order of the Republic of Turkey are reserved. The provisions of Articles 33 and 35 are reserved" (Article 29 of the Turkish Nationality Act).[30]
While the persons who lose Turkish nationality in the manner envisaged by Article 29 used to have the status of a normal foreigner prior to the amendment, with the amendment, such persons have now become entitled to receive equal treatment with citizens in terms of benefiting from the enumerated rights. However, the person losing nationality must be a Turkish national at birth in order to benefit from the status and rights brought by Article 29.
Further, Article 29 includes the statement "[who] acquire a foreign nationality as a result of obtaining permission for renunciation from the Council of Ministers". Taking into account the wording of the Article, one must acquire a foreign nationality after the date of permission of renunciation in order to benefit from the rights that have been reserved in the Article.[31]
The repealed Article 29 used to treat everybody losing Turkish nationality as a foreigner without discriminating among the reasons for losing Turkish nationality. This constituted a significant barrier for the Turkish nationals who wanted to acquire a foreign nationality by means of obtaining permission for renunciation from the Council of Ministers. It is very well known that a great number of Turkish citizens have immigrated to the European countries since the beginning of the 1960s. Although these people considered themselves to be the guests of the host countries at the beginning, they have now ended up being permanent settlers in these European countries.[32]
These Turkish citizens have begun to obtain the nationality of the country where they work in order to benefit fully from the rights provided by the state where they reside. However, the nationality laws of Germany[33], Austria, Denmark and Sweden require the renunciation of the original nationality to allow foreigners to acquire their own nationality. This has left Turkish citizens in a dilemma as to which nationality to choose.[34]
As soon as the persons who are to obtain permission to renounce Turkish nationality have learnt that they would be subject to the status of a foreigner according to the repealed Article 29, this knowledge has made them hesitant and later on caused them to give up their requests. This was a significant factor especially effective in the far too low number of the Turks acquiring German nationality in the past, despite the existence of a high number of Turkish citizens living in Germany.[35]
By looking at the legal reasoning of the Act No. 4112 changing Article 29, one could easily see the perspective lying behind the amendment. It is expressly stated in the minutes of debates that "our citizens abroad wish to acquire the nationality of the state where they reside and work; but the respective states require the renunciation of Turkish nationality; whereas our citizens who had to obtain permission to renounce Turkish nationality in order to be able to acquire the nationality of the state of residence are made subject to the status of a foreigner in Turkey in accordance with Article 29 of the Turkish Nationality Act; this practice however has given rise to our citizens in question giving up their desire to acquire foreign nationality and thus the Act No. 4112 has been precisely drafted for the purpose of removing this difficulty."[36]
Considering the amendment with the accompanying legal reasoning, it can be observed that Turkish citizenship policy takes into account the existence of the Turkish population abroad as well as the citizenship policy and practice of such countries. In fact, having reserved some of the rights of those persons renouncing nationality by way of permission, it logically follows that the renunciation of Turkish nationality by means of obtaining permission for the purposes of acquiring foreign nationality is encouraged.
Further, a new category of "foreigners having special status" has been created as a result of this amendment.[37] However, this new category of foreigners having special status has a different line of formation from the other categories of foreigners having special status recognised in the Turkish foreigners law. Looking at other categories of foreigners having special status,[38] it appears that the rights of foreigners falling under these categories have been brought closer to the status of a citizen by means of distinguishing them from the status of a normal foreigner. Whereas, here, the persons who were once Turkish citizens are placed in an intermediate status between the status of citizen and foreigner. In other words, the denizen[39] status here is a progress from the status of citizen to that of foreigner, not from the status of foreigner to that of citizen.
4. Analysis of Factors Influencing Turkish Citizenship Policy
In the case of many states, it can be stated that citizenship policies have formed and developed as a response to the population movements towards a country. However, as far as Turkish citizenship policy is concerned, the opposite can be said to be true. The Turkish citizenship policy during the period studied here (1980-2000) has mostly reacted and developed towards population movements from Turkey to abroad rather than vice versa.
            As parallel to, or as natural result of this tendency, the developments in Turkish nationality law are observed in the provisions relating to the loss of Turkish nationality rather than those relating to its acquisition. To put it more clearly, facilitating and indeed encouraging changes have been made regarding the loss of Turkish nationality and acquisition of the nationality of another state within the period considered in this study. During this period, no amendment has been made as regards the acquisition of Turkish nationality whether in a restrictive or liberalising manner. It can thus be concluded that there is no trend or development causing concern to Turkish policy makers on the acquisition of Turkish nationality which would necessitate a change.
            Nevertheless, it can be observed that Turkey is no longer only a sending country but also a transit country and even a receiving country nowadays, as far as international migration is concerned.[40] Having this in mind, it must be stated that the population movements towards Turkey will also influence the formation of Turkish citizenship policies. Although, population movements from Turkey to outside have been effective in the formation and development of the Turkish citizenship policy within the period studied (1980-2000), the migration pressure towards Turkey is also beginning to be felt in the Turkish citizenship policy as of the end of this period.
In fact, the first signals of the said policy formation and development have been given in recent days. As a result of such developments, a draft statute concerning the amendment of Article 5 of the Turkish Nationality Act has been sent to the National Assembly. It will be recalled that Article 5 regulates the acquisition of Turkish nationality upon marriage. According to this Article, a foreign woman marrying a Turkish man automatically (ipso facto) acquires Turkish nationality, in the event that the woman duly notifies the authorities or that she is a stateless person or that she loses her nationality upon marriage.
Within the framework of this Article, the foreign woman marrying a Turkish man acquires Turkish nationality automatically upon making a declaration or sending a notification to acquire Turkish nationality if she so wishes. The acquisition of nationality under this procedure is not subject to the approval of any authority. A great number of women have acquired Turkish nationality in the past years and up to the present time using the opportunity given by this Article.
On the other hand, it is stated that many foreign women have acquired Turkish nationality by concluding marriages of convenience (paper marriages) and misused the rights and facilities given by the Turkish nationality, as they later on get divorce decisions.[41] Because of this, it has become essential to make an amendment to Article 5 for the purposes of both preventing the corruption of the institution of marriage and of ensuring gender equality. With the new draft statute prepared for the above stated purposes, the acquisition of citizenship by way of marriage will be re-regulated on the basis of gender equality and acquisition under this procedure will no longer be an automatic process and will be subject to a number of conditions.[42]
While a foreign woman marrying a Turkish man can acquire Turkish nationality upon her request according to Article 5 of the current version of the Turkish Nationality Act, the foreign man marrying a Turkish woman cannot enjoy this opportunity. With the prospective amendment, the nationality acquisition of foreigners who marry Turkish nationals shall be subject to the same procedure without any discrimination as to sex. Therefore, in order to acquire Turkish nationality on the basis of marriage, the marriage must have existed at least for three years and the couples must de facto live together, and the marriage must be continuing.
It must be noted that if the proposed amendment is enacted, Turkish nationality policy will also have begun to respond to population movements towards Turkey. In fact, the preparation of such a proposal can by itself be considered as a policy response, taking into account the wider definition of public policy. The legal reasoning used for amending Article 5 expressly states that foreign women entering Turkey carry on their activities by misusing the marriage institution. Since the simple acquisition of Turkish nationality by way of marriage is considered by the Turkish policy makers to be a development which causes a great concern, it is thought that migration demand and pressure felt within this context must be regulated.
Generally speaking, there is no provision of law which prohibits or makes absolutely null the marriages of convenience (false marriages) across legal systems. The concept of marriage of convenience is neither envisaged by the Turkish Civil Code, nor is there a mechanism in Turkish nationality law to prevent the effects of such marriage in terms of the acquisition of nationality.[43] "The contract of marriage cannot be annulled in Turkey on the basis of simulation whatever the aims of the marriage might be."[44]
In Swiss law, the simulative (false) character of marriage was inserted into Article 120 of the Swiss Civil Code as a cause of nullity with the amendment made in 1952. Accordingly, if a woman concludes a marriage "solely" for the purposes of obviating the acquisition provisions of nationality law without having a desire to set up a family union, this marriage was regarded as  absolutely null. However, following the amendments to the Swiss Civil Code and Nationality Act made in 1990, both the legal concept of marriages of convenience and the provisions enabling a foreign woman marrying a Swiss man to acquire Swiss nationality by way marriage was abrogated.[45]
In British immigration law, the so-called Primary Purpose Rule (PPR) was used for a long time to control and reduce the number of the Pakistanis and Indians who wish to enter into the country by way of concluding new marriages.[46] According to the immigration practice based on the said rule (PPR), if one of the primary purposes of a foreigner's marriage with someone settled in Britain was to obtain settlement within this country, he/she was not allowed entry into the country. This practice which included the testing of the subjective aims and intentions of a marriage was abrogated after receiving heavy criticism from the public at large and as well as from national and international courts. However, it was used for many years as an immigration policy instrument to control and stop the population movements towards the country.
Approaching the issue from a comparative law perspective, it must be viewed normal and natural for policy and law makers to try to control such marriages and to stop such marriages being used as an instrument of obviation. Within this context, the proposed system aimed to be brought forward by the above described amendment into Article 5 does not carry a heavy burden for the foreigners to be marrying Turkish nationals.
5. Conclusion
A great deal of human migration from Turkey especially to Western Europe took place within the period considered (1980-2000). The stabilisation of this population in the country of residence has been adopted as a basic policy objective by Turkish public policy and law makers.
            On the other hand, the heavy conditions placed by the nationality laws of countries such as Germany which adopts an ethnical concept of nationality and the requirement by these countries of the renunciation of the original nationality for the acquisition of their own nationality have delayed the legal integration of Turkish citizens living in these countries. The hesitance of these states to accept them as an immigration country and to give some of the civic rights on the basis of residence has also been effective in the formation of counter policies.
            The importance given by the Turkish citizens to emotional ties that they felt for their homeland and to the material and moral ties that they have left behind are also effective in the type of citizenship policy that Turkish policy makers have pursued. Taking into account all of these factors, it can be concluded that the Turkish citizenship policy within the period studied has developed as reaction and response to population movements from Turkey to outside and the Turkish presence abroad.
            Thus, citizenship policies taking into account the Turkish presence abroad have been developed and applied so far in the Turkish context. It is not predicted that a fundamental change will happen in such policies and policy instruments in the short and even medium term. As of the end of the period of consideration, the effects of inward population movements have also begun to be seen in the formation of Turkish citizenship policies. The developments taken place so far regarding the acquisition of Turkish nationality by way of marriage within the context of Article 5 of the Turkish Nationality Act constitute the most concrete example of this policy re-alignment.

· Lecturer in Law, Police Academy Faculty of Security Sciences, Ankara, Turkey: LLB (Ankara University Law Faculty, 1989), LLM (Nottingham University Law Faculty, 1992), PhD (London University (SOAS Law Faculty), 1997); e-mail address: bulentcicekli@hotmail.com

[1] Turkish Nationality Act No. 403 (published in the Official Gazette No. 11638 of 22 February 1964; hereinafter referred to as TNA) has been amended by the following acts: the Act No. 2383 of 13.02.1981 (published in the Official Gazette No. 17254 of 17 February 1981); the Act No. 3540 of 20.04.1989 (published in the Official Gazette No. 20153 of 29 April 1989); the Act No. 3808 of 27.05.1992 (published in the Official Gazette No. 21248 of 4 April 1992); and the Act No. 4112 of 07.06.1995 (published in the Official Gazette No. 22311 of 12 June 1995).

[2] The term citizenship policy is used here as a form of public policy. Public policy may be defined as the entire purposeful actions developed and applied by government and public institutions to resolve problems. In this context, the term public policy should be understood as a process which includes decision making, the passing of laws by the parliament as a result of such decision making and the application of such laws. For a detailed study on the definition, analysis and stages of public policy, see H. Hüseyin Çevik (2001) Türkiye'de Kamu Yönetimi Sorunları (Public Policy Problems in Turkey), Ankara: Seçkin, especially, pp. 91-116.

[3] See Osman Fazıl Berki (1966) Devletler Özel Hukuku, Cilt I, Tabiiyet ve Yabancılar Hukuku, (International Private Law, Volume I, Nationality and Foreigners Law), Ankara: Güzel Sanatlar Matbaası, pp. 41-42; İlhan Unat (1966) Türk Vatandaşlık Hukuku: Metinler - Mahkeme Kararlar, (Turkish Nationality Law: Texts - Court Decisions), Ankara: Sevinç Matbaası.

[4] See Ergin Nomer (1997) Vatandaşlık Hukuku, (Nationality Law) İstanbul: Filiz Kitabevi, p. 44; and Vahit Doğan (1999) Türk Vatandaşlık Hukuku, (Turkish Nationality Law) Ankara: Nobel, pp. 21-22.

[5] See Unat, 1966, pp. 8-11.

[6] According to Article 1 of the Regulation, children having parents or just father who have Ottoman nationality are recognised to have Ottoman nationality (ius sanguinis). According to Article 2, if children having parents who are foreigners are born to the Ottoman soil, they may be entitled to claim Ottoman nationality within three years following attainment majority (ius soli).

[7] For details see Unat, 1966, pp. 85-111.

[8] Before the Constitutional amendment made through the Law No. 4709 of 03.10.2001, there used to be another sentence added to this one, which provided that "the nationality of the child born of foreign father and Turkish mother is regulated by law". Despite the fact that the inclusion of this provision in the Constitution allowed the law maker to regulate the nationality of children falling under this category in a different manner, the regulation of nationality in the positive law was no different for children born of a foreign father and a Turkish mother. With the recent Constitutional amendment, it has now become impossible for the law maker to issue different rules for children born of foreign father and Turkish mother, and the gender equality has now been brought under the Constitutional guarantee from this perspective too. See B. Çiçekli & M. Bedri Eryılmaz (2002) "Son Anayasa Değişikliği Ãœzerine Düşünceler", (Some Thoughts on Recent Constitutional Amendments) Ankara Barosu Dergisi, No: 2002/1, Year: 60, pp. 70-71.

[9] See Nomer, 1997 and Doğan 1999.

[10] Notwithstanding that a foreign woman marrying a Turkish man in some cases acquires Turkish nationality on the basis of her will (not automatically, which must be the normal outcome of statutory acquisition), such a statement can still be said to be true in general, see Article 5 of the Turkish Nationality Act.

[11] See Doğan, 1999, pp. 147-148.

[12] See Nomer, 1997, p. 90.

[13] See Nomer, 1997, p. 96.

[14] Note that these two sanctions used to be a single sanction under the former Turkish Nationality Act. Although they are similar sanctions, they now differ in terms of causes and consequences. Since the proper equivalent of these terms could not be found in English, the Turkish terms used for them are also provided to indicate the differences between them.

[15] There are other grounds for dismissal (kaybettirme), see Article 25 of the Turkish Nationality Act.

[16] This sanction is also subject to an official notification requirement and normally applicable only for those Turkish nationals who acquired Turkish Nationality later on (not at birth), see Article 26.

[17] For details see Ann Dummett (1994) "The acquisition of British Citizenship. From Imperial Traditions to National Definitions", in Rainer Bauböck (ed) From Aliens to Citizens: Redefining the Status of Immigrants in Europe, Aldershot et al.: Avebury, European Centre Vienna, pp. 75-84.

[18] For details see Ruud van den Bedem (1994) " Towards a System of Plural Nationality in the Netherlands. Changes in Regulations and Perceptions", in Rainer Bauböck (ed) From Aliens to Citizens: Redefining the Status of Immigrants in Europe, Aldershot et al.: Avebury, European Centre Vienna, pp. 95-109.

[19] For details see Helmut Rittstieg (1994) "Dual Citizenship: Legal and Political Aspects in the German Context", in Rainer Bauböck (ed) From Aliens to Citizens: Redefining the Status of Immigrants in Europe, Aldershot et al.: Avebury, European Centre Vienna, pp. 111-120.

[20] Ibid, p. 116.

[21] See E. Nomer (1998) "Türk Vatandaşlık Hukukunun Genel İlkeleri" (General Principles of Turkish Nationality Law), Vatandaşlık ve Yabancılar Hukuku Alanında Gelişmeler, İstanbul, 24-25 September 1998, pp. 65-79 (especially pp. 75-76).

[22] For details see Nomer, 1998, pp. 76-79.

[23] According to the former text of the Article, "The wish of renouncing Turkish nationality shall be submitted through a letter of application to the highest administrative authority of the place where  the respective person resides in Turkey, or to the relevant Turkish consulate abroad.
The documents completed by these authorities shall be sent to the Ministry of Interior to finish the required procedure."

[24] According to the former text of the Article, "If the person wishing to renounce nationality is also the national of another state, he is presented with a renunciation certificate at once.
If the person wishing to renounce nationality is not the national of another state, a renunciation certificate is given to him/her when he/she produces a certificate showing that he has acquired the nationality of the respective state.

[25] Article 2 of the Military Code No. 1111 of 21.06.1927; see the Official Gazette No. 21648 of 25 July 1993 for the principles determined by the Council of Ministers in relation thereof.

[26] The former text of the Article was as follows: "Having acquired a foreign nationality without his/her will for whatever reason or having convincing evidence as regards to the fact that he/she will acquire a foreign nationality."

[27] See Article 25(a) of the Turkish Nationality Act, and Articles 31 and 36(a) of the Regulation of the Turkish Nationality Act.

[28] It has been observed in practice that those who renounce Turkish nationality in order to obtain a foreign nationality again apply for and acquire Turkish nationality through "re-naturalisation process". Accordingly, they obtain dual nationality in an indirect manner.

[29] For details see T. Turhan (1997) "Türk Vatandaşlığından Çıkanların Hakları (TVK md. 29 Ãœzerine Bir İnceleme)" (Rights of Those Renouncing Turkish Nationality (A Study on Article 29 of the Turkish Nationality Act), Ankara Ãœniversitesi Hukuk Fakültesi Dergisi, Volume: 46, No: 1-4, pp. 41-65.

[30] The former version of Article 29 which was repealed in 1995 with the Act No. 4112 was as follows: "The persons losing Turkish nationality in accordance with this Act shall be treated as foreigners as of the date of loss of nationality. On matters such as residence, acquisition and transfer of immovable goods, inheritance and working, they can only benefit from the rights given to foreigners by Turkish laws. The provisions of Articles 33 and 35 are reserved" (Annulled Article 29 of the Turkish Nationality Act).

[31] This manner of interpretation of the Article gives rise to some problems in practice and many number of persons who renounce Turkish nationality by way of permission end up with not benefiting from the status and rights given by the new text of Article 29. For details on this problem, see B. Çiçekli (2000) "Türk Vatandaşlığından İzin Alarak Çıkma, İzin Alarak Çıkmanın Hukuki Sonuçları ve TVK 29. Madde Uygulamasından Doğan Sorunlar ve Çözüm Önerileri" (Renunciation of Turkish Nationality By Means of Obtaining Permission, Legal Outcomes and the Problems Resulting from the Application of Article 29 and Recommendations), Ankara Barosu Dergisi, No. 2000/4, Year: 58, pp. 63-75.

[32] For details see B. Çiçekli (1998) The Legal Position of Turkish Immigrants in the European Union: A Comparison of the Legal Reception and Status of Turkish Immigrants in Germany, the Netherlands and the UK, Ankara: Karmap, (especially Chapter 2).

[33] For a brief account of the naturalisation requirements of German nationality law see Rittstieg, 1994, pp. 114-115.

[34] This difficulty of Turkish nationals residing abroad (mainly in Germany and elsewhere in Europe) is cited as a justification behind the changes to Article 29 of the Turkish Nationality Act which was brought forward by the Act No. 4112 in 1995, see "Türk Vatandaşlığı Kanununun Bir Maddesinde Değişiklik Yapılmasına İlişkin Kanun Tasarısı ve İçişleri Komisyonu Raporu (1/846)" (Draft Statute Concerning the Amendment of an Article of the Turkish Nationality Act and the Report of the Ministry of Interior Commission (1/846)), TBMM Tutanak Degisi, C. LXXXVIII, S. Sayısı 842, p. 1.

[35] See Turhan, 1997, p. 44.

[36] See "Türk Vatandaşlığı Kanununun Bir Maddesinde Değişiklik Yapılmasına İlişkin Kanun Tasarısı ve İçişleri Komisyonu Raporu (1/846)" (Draft Statute Concerning the Amendment of an Article of the Turkish Nationality Act and the Report of the Ministry of Interior Commission (1/846)), TBMM Tutanak Degisi, C. LXXXVIII, S. Sayısı 842, p. 1.

[37] For a similar argument see T. Ansay (1998) "Türk-Alman İlişkilerinde Çifte Vatandaşlık" (Dual Nationality in Turkish-German Relations), Prof.Dr. Ali Bozer'e Armağan, Ankara, pp. 616-617; and Turhan, 1997, p. 48.

[38] Among the "foreigners having special status" in the Turkish foreigners law, refugees, stateless persons, members of NATO, foreign diplomatic representatives, foreigners having Turkish ancestry and EU citizens living in Turkey can be cited.

[39] The term "denizen" may be described as "a foreigner residing in country as possessing certain citizenship rights", see Redhouse Sözlüğü (Dictionary), 1985, p. 250; for a detailed discussion on the distinction of citizen/denizen see T. Hammar (1986) "Citizenship: Membership of a Nation and of a State", International Migration, Volume: 4, p. 735-747; T. Hammar (1990) Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration, Aldershot: Gower Publishing.

[40] For a study by the International Organisation for Migration (IOM) pointing at the position of Turkey being both a transit and receiving country, see International Organisation for Migration (IOM) (1996) Transit Migration in Turkey, Migration Information Programme, Budapest, Hungary; for statistical data displaying the position of Turkey in international migration see also Emniyet Genel Müdürlüğü, Yabancılar Hudut İltica Dairesi Başkanlığı (2001) Dünyada ve Türkiye'de Yasadışı Göç (Illegal Migration in the World and in Turkey).

[41] According to the assessment of the Home Affairs Commission, "foreigners entering into our country enter into illegal affairs; damage public moral and public health as well as our family structure. These persons conclude false marriages to move freely in our country; to maintain their illegal activity by exploiting the rights given to the citizens and divorce after acquiring nationality." For the legal reasoning and text of the draft statute and the report of the Home Affairs Commission, see Türk Vatandaşlığı Kanununda Değişiklik Yapılmasına İlişkin Kanun Tasarısı ve İçişleri Komisyonu Raporu, (28.03.2002, Esas No: 1/958, Karar No: 29, Dönem 21, Yasama Yılı: 4 TBMM S. Sayısı: 844), at www.tbmm.gov.tr

[42] See ibid.

[43] See Bahadır Erdem (1999-2000) "Türk Vatandaşlık Hukukundaki Cinsiyet Farkından Doğan Eşitsizlik Sonucunda Türk Vatandaşı Erkekle Evlenen Yabancı Kadının Yarattığı Sorunlar" (Problems Created by Foreign Woman Marrying Turkish Man as a Result of Gender Discrimination in the Turkish Nationality Law), Milletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni (MHB), Year. 19-20, No. 1-2, pp. 293-312.

[44] See the Decision of the Civil Chamber of the Court of Cassation dated 11.04.1974 (İBD 1-2/1975, 79 at sec.) cited in Nomer, 1997, at p. 66, footnote 35.

[45] See Erdem, 1999-2000, pp. 303-304.

[46] For the details of this very much criticised practice, see Sanjiv Sachdeva (1993) The Primary Purpose Rule in British Immigration Law, Stoke-on-Trent: Trentham and SOAS.

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Bulnet CICEKLI: Institute of Security Sciences, Ankara.