Right of Stay in Turkey for Foreign Mothers or Fathers with a Turkish Citizen Child

The ability of a foreign mother or father with a Turkish citizen child to legally reside in Turkey depends, alongside family ties, on current legislation, the foreigner's current legal status, and the specific circumstances of the case. Being the parent of a Turkish citizen child does not inherently and automatically grant a permanent residence permit or Turkish citizenship. Nevertheless, the best interests of the child, the right to respect for family life, and the protection of the relationship between the parent and the child are significant legal elements in the evaluation of residence permit and deportation proceedings.

The situation of the foreign parent may vary depending on whether their marriage to their Turkish citizen spouse continues, cases of divorce or death, child custody, the establishment of paternity, and judicial decisions, if any. Depending on the concrete circumstances, options such as family residence permit, short-term residence permit, or humanitarian residence permit may be evaluated.

This article discusses the opportunities for foreign parents of a Turkish citizen child to stay in Turkey, relevant legislation, the establishment of paternity, the denial of residence permit applications, and the legal remedies available against deportation decisions.

1. Legal Grounds for the Foreign Parent of a Turkish Citizen Child

1.1. Article 41 of the Constitution: Protection of the Family and the Child

Article 41 of the Constitution of the Republic of Turkey guarantees the protection of the family and the observance of children's rights. Every child has the right to maintain personal and direct relations with their mother and father, unless it is clearly contrary to their best interests.

This provision does not mean that the foreign parent can remain in Turkey under all circumstances. However, it is significant in terms of requiring the administration to evaluate the child's situation, their relationship with the parent, and the consequences of the decision on family life when establishing residence permit or deportation proceedings.

1.2. Article 8 of the European Convention on Human Rights

Article 8 of the European Convention on Human Rights protects the right to respect for private and family life. Although states have the authority to regulate the entry and stay of foreigners in the country, fundamental rights must also be observed during the exercise of this authority.

If the departure of the foreign parent from Turkey would lead to the de facto severance of their relationship with their Turkish citizen child or seriously disrupt the child's care, these consequences must be evaluated within the framework of the specific case. However, the existence of a family tie does not automatically render a deportation decision unlawful.

1.3. United Nations Convention on the Rights of the Child

Article 3 of the Convention on the Rights of the Child provides that the best interests of the child shall be a primary consideration in all actions concerning children. Article 9 of the Convention sets forth safeguards regarding the separation of children from their parents.

When evaluating these principles, consideration may be given to the child's age, care requirements, actual relationship with the parent, educational status, and the potential consequences of the separation.

2. Turkish Citizenship of the Child and Establishment of Descent

In order for a foreign parent to make a legal claim through a child, it is crucial that the child's citizenship status and the legal bond between the parent and the child are established with appropriate documentation.

2.1. Citizenship by Birth Pursuant to the Turkish Citizenship Law No. 5901

Pursuant to Article 7 of the Turkish Citizenship Law No. 5901, a child born to a Turkish citizen mother or father acquires Turkish citizenship by birth, subject to the conditions specified in the law.

• A child born within marriage to a Turkish citizen mother or father acquires Turkish citizenship by birth under the conditions set forth in the law.
• A child born out of wedlock to a Turkish citizen mother acquires Turkish citizenship through the mother.
• With respect to a child born out of wedlock to a Turkish citizen father and a foreign mother, establishing the parent-child relationship (maternity/paternity) and completing the relevant citizenship procedures are required under Turkish law.

2.2. Acknowledgment and Paternity Suit in Births Out of Wedlock

The legal relationship between a child born out of wedlock and a Turkish citizen father can be established within the framework of the procedures stipulated in the Turkish Civil Code.

Acknowledgment: A Turkish citizen father may legally acknowledge a child through an official declaration made in compliance with the procedures and formalities stipulated by law. The validity of the acknowledgment and its recording in the civil registry are evaluated within the framework of the relevant legislation.

Paternity lawsuit: In the event that acknowledgment does not take place, filing a paternity lawsuit may be considered pursuant to Article 301 and relevant provisions of the Turkish Civil Code. The parties and procedure of the lawsuit are determined based on the specific circumstances of the case.

In lineage and citizenship procedures, the child's birth certificate, civil registry records, acknowledgment documents, and, where necessary, court orders are of significance. The residence application of the foreign parent, on the other hand, must be examined separately from these procedures in terms of their own legal status and the applicable residence permit provisions.

3. Residence Permits Available to Foreigners with a Turkish Citizen Child

3.1. Family Residence Permit

Article 34 of the Law on Foreigners and International Protection No. 6458 regulates the scope of the family residence permit. This permit may be granted to the foreign spouses and, under certain conditions, the children of sponsors specified in the law.

A foreign mother or father whose official marriage to a Turkish citizen continues may apply for a family residence permit through their Turkish citizen spouse, provided that they meet other statutory conditions. The permit may be issued for a maximum of three years at a time and cannot exceed the duration of the sponsor's residence permit.

Merely being the parent of a Turkish citizen child does not automatically ensure that the child is considered a sponsor in terms of a family residence permit. In the absence of a marriage to a Turkish citizen spouse or upon the termination of the marriage, the conditions for another type of residence permit must be examined separately.

3.2. Short-Term Residence Permit

Article 31 of Law No. 6458 governs the circumstances under which a short-term residence permit may be granted. If the specific circumstances of the foreign parent correspond to one of the grounds enumerated in this article, the short-term residence permit option may be evaluated.

In particular, subparagraph (g) of the first paragraph of Article 31 may be significant regarding foreigners who are required to stay in Turkey pursuant to a request or decision of judicial or administrative authorities. However, the mere existence of a custody, lineage, or personal contact lawsuit does not in every case mandate the issuance of a permit under this subparagraph. The nature of the request or decision by the relevant authority and whether staying in Turkey is legally necessary must be examined.

Regarding foreigners divorced from their Turkish citizen spouses, the transitional provisions under Article 34 of Law No. 6458 are also important. Within the framework of the conditions specified in the law, a person who has resided in Turkey with a family residence permit for at least three years may transition to a short-term residence permit. In cases involving victimization due to domestic violence, the exception set forth in the law shall be evaluated separately.

In the event of the death of the Turkish citizen spouse, the possibility of transitioning to a short-term residence permit may also be available pursuant to the special provision set forth in Article 34. The application of this possibility requires the examination of statutory conditions and the documentation of the specific case.

Owning residential property in Turkey may also constitute a grounds for a short-term residence permit within the scope of Article 31. However, the nature of the immovable property, ownership status, and other conditions in effect as of the application date must also be verified.

3.3. Humanitarian Residence Permit

Article 46 of Law No. 6458 regulates the issuance of humanitarian residence permits under exceptional circumstances stipulated in the law. Cases involving the best interests of the child are among the circumstances that may be evaluated within the scope of this article.

If the separation of a Turkish citizen child from their foreign parent would seriously affect the child's care or development, this situation may be explained in the humanitarian residence permit application. The best interests of the child should not be evaluated as an automatic permit ground that alone requires the acceptance of every application. The administration must examine the relevant statutory provisions and the specific characteristics of the case.

In humanitarian residence permit applications, the child's birth and civil registry records, custody orders, documents demonstrating care needs, records establishing the de facto relationship with the parent, and relevant court decisions, if any, may be significant.

4. Comparison of Residence Permit Types

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Note: The maximum duration of a residence permit is the general statutory limit regarding the permit type. The actual duration to be granted and the acceptance of the application are determined within the framework of the specific case and the legislation in force as of the application date.

5. Legal Assessment Based on Concrete Circumstances

5.1. Foreign Mother of a Child Born Out of Wedlock from a Turkish Citizen Father

If the foreign mother and the Turkish citizen father are not married, it cannot be said that the mother can obtain a family residence permit solely because the child is a Turkish citizen. First, the child's citizenship and lineage records, as well as the mother's legal status, must be determined.

The fact that the child is cared for by the mother, the age of the child, and the consequences of separation from the parent may be asserted in a humanitarian residence permit application or other appropriate legal remedies when the conditions are met. The outcome of the application depends on the administration's assessment and concrete evidence.

5.2. Foreign Parent Who Divorced a Turkish Citizen Spouse and Was Granted Custody

The granting of custody of the child to the foreign parent following a divorce may be significant in terms of the continuation of the child's life in Türkiye and their care needs. However, a custody decision alone does not mean that a specific residence permit will definitively be granted.

The conditions for the foreigner's transition from a family residence permit to a short-term residence permit and the provisions regarding a humanitarian residence permit must be examined separately. The custody decree, the child's civil registry records, and documents demonstrating care conditions may be significant in the application file.

5.3. Parent Who Does Not Have Custody But Has the Right to Establish Personal Contact with the Child

A foreigner whose custody is with the other parent may have the right to establish personal contact with the child by a court order. This decision is significant in the assessment regarding family life. However, a personal contact decision does not automatically lead to the conclusion that a short-term residence permit will definitely be granted.

The nature of the judicial authority's decision, the necessity of the foreigner's presence in Türkiye, and the conditions of the relevant residence permit provision must be evaluated together.

6. Precedent Decisions and Judicial Evaluation

6.1. Decision of the 10th Chamber of the Council of State, E. 2016/3625, K. 2020/5405

In the decision dated November 25, 2020, the rejection of the short-term residence permit extension application of a Ukrainian national foreigner who has a Turkish citizen child born out of wedlock and owns real estate in Türkiye was examined.

The assessment of the first-instance court, as conveyed in the text of the judgment, took into account the foreigner's family ties, relationship with their minor child, and the legal status of their previous entry ban records. The Council of State rejected the administration's appeal and upheld the annulment decision.

This decision is significant in terms of the joint evaluation of the foreign parent's family ties and the concrete conditions of the residence permit. However, the decision should not be interpreted as granting an automatic right of residence to all foreigners who have a Turkish citizen child.

Text of the decision of the 10th Chamber of the Council of State, Case No. E. 2016/3625, Decision No. K. 2020/5405

6.2. Judgment of the Constitutional Court, Application No. 2018/29906

In the application of Gulnura Toktomambetova dated March 15, 2022, the Constitutional Court examined claims regarding the prohibition of ill-treatment and the right to respect for family life in the context of deportation and invitation to leave decisions.

The specific subject matter of the decision is not identical to every foreign parent scenario discussed herein. Therefore, this decision should not be presented as a precedent mandating the direct issuance of a residence permit to foreign parents who have a Turkish citizen child. Nonetheless, it may be taken into consideration in constitutional jurisprudence research concerning the assessment of fundamental rights in deportation proceedings.

Constitutional Court Individual Application Decisions Information Bank the decision can be searched by application number 2018/29906.

6.3. Verification Note Regarding the Decision of the Council of State, Case No. E. 2019/11903, Decision No. K. 2020/6591

In the research submitted for this study, reference was made to the decision of the 10th Chamber of the Council of State, numbered E. 2019/11903, K. 2020/6591, and dated December 21, 2020. However, the full text and citation details of the decision in an official or sufficiently reliable decision database could not be independently verified within the scope of this study.

Therefore, the content, ruling, and date of the decision should not be used as a definitively verified precedent. Prior to publication, the full text and citation of the decision must be checked from an official or reliable legal precedent source.

7. Legal Remedies Against Residence Permit Denial and Deportation Proceedings

7.1. Rejection of Residence Permit Application

In the event of the rejection of a residence permit application or the revocation of an existing permit, the legal basis, grounds, notification date, and current status of the applicant must be examined.

Unless there is a specific provision to the contrary, the general statute of limitations for filing a lawsuit in administrative jurisdiction is determined within the framework of Article 7 of the Administrative Procedure Law No. 2577. The type of administrative action and the relevant special legislation must also be checked regarding the calculation of the deadline. The request for a stay of execution may also be evaluated according to the circumstances of the specific case.

7.2. Deadline for Filing a Lawsuit Against a Deportation Decision

Important: According to the general regulation in Article 53 of Law No. 6458, an application may be filed with the administrative court against a deportation decision within 15 days from the notification of the decision. This period should not be confused with the seven-day period found in older sources.

Article 53 of the Law also regulates the filing period and the effect of applying to judicial remedies on the deportation procedure. However, since there are exceptions specified in the article, it should not be assumed in every case that filing a lawsuit automatically stays the deportation procedure until the end of the litigation.

The notification date of the decision, the legal grounds upon which the decision is based, and any special procedural provisions must be examined without delay. The notification by the foreigner or their representative to the authority that issued the deportation decision regarding the application to the court is also significant within the framework of the statutory procedure.

7.3. Persons Who Cannot Be Deported

Article 55 of Law No. 6458 governs foreigners against whom a deportation decision cannot be issued under certain conditions. Whether the conditions set forth in this provision exist is evaluated within the framework of the foreigner's personal situation and relevant risks.

Having a family tie with a Turkish citizen child may be asserted in the evaluation against the deportation procedure; however, standing alone, it does not constitute an absolute prohibition of deportation within the scope of Article 55.

7.4. Restriction Codes and Entry Bans

In the event that there is a restriction code or an entry ban to Turkey concerning a foreigner, the nature of the code, the underlying administrative action, the grounds, and notification details must be examined. The restriction code, the deportation decision, and the rejection of a residence permit may constitute distinct legal actions.

If it is considered that the relevant transaction is unlawful, applicable administrative application and litigation avenues along with the statutory deadlines must be determined based on the specific case file.

8. Can a Foreign Parent of a Turkish Citizen Child Obtain Turkish Citizenship?

Being the mother or father of a Turkish citizen child does not automatically grant Turkish citizenship to the foreign parent. The citizenship application is evaluated based on the conditions of the relevant acquisition procedures set forth in the Turkish Citizenship Law No. 5901.

Citizenship through general application: The conditions for naturalization through the general procedure regulated under Article 11 of the Law include the period of residence, the assessment of the intention to settle, and other statutory requirements. The presence of a Turkish citizen child does not mean that these conditions are fulfilled on its own.

Citizenship through marriage: Regarding citizenship through marriage regulated under Article 16 of the Law, statutory requirements such as being married to a Turkish citizen for at least three years and the continuation of the marital union are required. The fact that the child is a Turkish citizen does not replace these requirements.

9. Frequently Asked Questions

I have a Turkish citizen child. Will I be deported due to a visa violation?

The presence of a Turkish citizen child does not provide automatic and absolute exemption against deportation. However, family ties, the best interests of the child, and the impact of the decision on family life may carry significance in the specific case. If a deportation decision is served, the 15-day general litigation period under Article 53 of Law No. 6458 and relevant exceptions must be checked immediately.

I divorced my Turkish citizen spouse and I have custody of my child. Can I stay in Turkey?

Divorce and custody status are important in evaluating residence permit options. Provisions for transitioning from a family residence permit to a short-term residence permit, as well as the option of a humanitarian residence permit when conditions are met, can be examined. A custody decision alone does not automatically confer the right of residence.

The father of my child is a Turkish citizen, but we are not married and the father has not acknowledged the child. What should I do?

In order to establish the legal descent between the child and the father, acknowledgment or, if conditions are met, a paternity lawsuit may come into question pursuant to the relevant provisions of the Turkish Civil Code. Citizenship and civil registry procedures must be executed based on the legal establishment of descent. The residence status of the foreign parent shall be evaluated separately.

Can I obtain a family residence permit directly through my Turkish citizen child?

Being the parent of a Turkish citizen child alone is not sufficient for the issuance of a family residence permit. A family residence permit is subject to the sponsor and family tie conditions regulated under Article 34 of Law No. 6458. In specific cases, short-term or humanitarian residence permit options may also be evaluated.

Within how many days must I file a lawsuit if my residence permit application is rejected?

The general administrative lawsuit filing period is determined within the framework of Article 7 of Law No. 2577, unless there is a special regulation. The type of rejection act, the date of service, and applicable special provisions must be reviewed. If a separate deportation decision has also been issued, the lawsuit filing period for this decision is evaluated separately.

Is it mandatory to have custody of the child in order to obtain a humanitarian residence permit?

Custody may be important in assessing the child's care and the relationship with the parent; however, it is not solely decisive in every case. The best interests of the child, the de facto care relationship, family ties, and the conditions set forth in Article 46 of Law No. 6458 are examined on a case-by-case basis.

10. Legal Assessment and Conclusion

The right of a foreign parent with a Turkish citizen child to stay in Turkey cannot be reduced to a single provision of law or solely to the parental relationship. The applicable legal path is determined based on the child's citizenship and civil registry records, descent, custody status, the marital status of the parents, the current residence status of the foreigner, and administrative decisions, if any.

Family residence permits, short-term residence permits, and humanitarian residence permits are subject to different conditions. While the best interests of the child and the right to respect for family life are important in administrative evaluations, this does not mean that every application will be accepted or every deportation decision will be annulled.

Particularly in residence permit rejections and deportation decisions, the notification date and the applicable lawsuit filing period must be determined without delay. Since legislation and administrative practices may change, the current text of the law and full texts of relevant decisions should be checked prior to application or litigation.

Author Information

Atty. Batın YILMAZ
Istanbul Bar Association Bar Registry No: 77008

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This content has been prepared for general legal informational purposes. It does not constitute a legal opinion or a guarantee of results for a specific person or file. Concrete disputes must be evaluated separately within the framework of the relevant legislation and the information and documents contained in the file.

During the preparation of this content, the Professional Rules of the Union of Turkish Bar Associations and the provisions regarding the prohibition of advertising for the legal profession have been observed. No commitment is made that any legal outcome will be definitively achieved.

Contact Information

Atty. Batın YILMAZ
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E-mail: info@batinyilmaz.av.tr
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