Administrative Jurisdiction for Passport Cancellation

Administrative Jurisdiction for Passport Cancellation. This report comprehensively addresses passport cancellations and restrictions (annotations) arising from the implementation of the Passport Law No. 5682, as well as the judicial review mechanisms available against these administrative acts within the framework of Turkish Administrative Law discipline. The study focuses on the dialectical relationship between the administrative practices that became widespread particularly during the State of Emergency (OHAL) period post-2016 and the annulment decisions rendered by the Constitutional Court (AYM) in 2024, which radically altered the legal regime. The central thesis of the report is that the passport has evolved from a regime of “grace” (privilege) to a constitutional “right” regime; however, the administrative bureaucracy attempts to preserve the reflex of limiting this right through the concept of “general security,” while the administrative judiciary assumes a balancing and norm-setting role in this conflict. With a scope of 15,000 words, the study does not limit itself to legislative analysis but conducts an in-depth examination in light of the settled case law of the Council of State (Danıştay), the rights-based approach of the Constitutional Court, and international law norms.

Section I: Freedom of Travel and the Legal Ontology of the Passport

1.1. “Exit from the Country” as a Constitutional Right

In modern constitutional democracies, the spatial mobility of the individual is accepted not merely as an act of physical displacement but as a mandatory prerequisite for the material and spiritual development of one’s personality. Article 23 of the Constitution of the Republic of Turkey, titled “Freedom of Residence and Travel,” guarantees this right while subjecting its limitation to extremely strict formal conditions. The text of Article 23 of the Constitution, as amended in 2010, mandates that “A citizen’s freedom to leave the country may only be restricted by the decision of a judge based on a criminal investigation or prosecution.”

This constitutional norm creates a “judicial monopoly” area that goes beyond the principle of “legality of administration,” a fundamental principle of administrative law, and almost completely eliminates the administration’s discretionary power regarding passport restrictions. The constitution-maker evaluated the prevention of exit from the country with a weight similar to the right to personal liberty and security (Constitution Art. 19) and transferred this authority from the executive organ to the judicial organ (judicial assurance). However, in practice, there has been a conflict of norms for over a decade between the powers granted to the administration by Law No. 5682 and this mandatory provision of the Constitution.

1.2. Legal Nature of the Passport: Property or License?

The legal nature of the passport plays a critical role in determining the elements of the administrative act (competence, form, cause, subject, purpose). The passport is of the nature of an “official document” whose ownership belongs to the state but whose possession and right of use are transferred to the individual. In administrative law theory, a passport should be characterized as a “condition-act” necessary for the individual to exercise a constitutional right, rather than a “permission” or “license” act.

While the administration has wide discretionary power in the license theory (for example, the administration is free to grant a gun license), in documents related to fundamental rights such as passports, the authority of the administration approaches the limits of “bound authority” (compétence liée). That is, it is an obligation to issue a passport to every citizen who meets the legal requirements; there can be no question of the administration’s grace regarding “giving or not giving.” In this context, the passport cancellation act is the unilateral elimination by the administration of a legal situation born in favor of the individual (a status right, if not a vested right) and is subject to strict review within the framework of the principle of “respect for acquired rights.”

Section II: Normative Grounds for Passport Cancellation and Restriction and the 2024 Transformation

The legal infrastructure of passport cancellations was shaped for many years through Article 22 of the Passport Law No. 5682 and the enacted versions of the Decree Laws issued during the State of Emergency period (specifically Law No. 7086). However, the year 2024 became a year of “rupture” and “reconstruction” in this field.

2.1. Article 22 of Law No. 5682 and the “General Security” Paradox

Article 22 of the Passport Law regulates the cases where the issuance of a passport is prohibited. The most controversial paragraph of the article stipulated that passports would not be issued to, and issued passports would be cancelled for, “those determined by the Ministry of Interior to be inconvenient in terms of general security regarding their departure from the country.” This regulation opened an open-ended area of authority for the administration (Ministry of Interior) with undefined limits and difficult supervision.

The concept of “general security” falls into the category of “indefinite legal concepts” (unbestimmte rechtsbegriffe) in administrative law. The administration expanded this concept to cancel the passports of individuals based on investigations where no lawsuit had yet been filed, intelligence notes, social media posts, and even the legal status of family members. This situation created a clear conflict with the principles of “presumption of innocence” and “individuality of criminal responsibility.”

2.2. The Constitutional Court’s “Cancellation Earthquake”: E. 2024/112, K. 2024/160

With a historic decision rendered in 2024, the Constitutional Court annulled the phrase “those determined by the Ministry of Interior to be inconvenient in terms of general security” located in Article 22 of the Passport Law, finding it unconstitutional. The Court’s grounds for annulment are of a tutorial nature for administrative judicial practice and are based on the following fundamental arguments:

Violation of the Judge’s Decision Guarantee: While Article 23 of the Constitution states that a ban on leaving the country can only be imposed by a judge’s decision, the imposition of this ban by the Ministry of Interior, an administrative authority, based on its own determination constitutes a “usurpation of function.” The administration cannot take action on a matter falling within the jurisdiction of the judiciary.
Proportionality and Necessity: The limitation of a fundamental right must be suitable for the requirements of a democratic social order and proportionate. Creating an indefinite deprivation of rights based on intelligence suspicions without a concrete judicial decision does not meet the criteria of “suitability,” “necessity,” and “proportionality,” which are sub-principles of the “proportionality” principle.
Legal Certainty: Individuals must be able to foresee which actions will lead to passport cancellation. A vague expression like “general security” creates an arbitrary area of application for the administration and leaves the individual unprotected against the law.

This decision entered into force upon publication in the Official Gazette and became binding for administrative judicial bodies. Although the principle of non-retroactivity of the decision is debated, due to the principle of “application of annulment decisions to pending cases” in administrative law, this decision creates a “procedural vested right” for thousands of files currently pending in courts.

Section III: Administrative Restriction Codes (Ç, G, N Codes) and De Facto Obstacles

Passport cancellations are carried out not only by the physical confiscation of the passport but also through “Restriction Codes” processed into digital databases. These codes automatically prevent the person from applying for a passport through the system.

3.1. Typology and Legal Status of Restriction Codes

The databases of the Ministry of Interior General Directorate of Population and Citizenship Affairs (NVİ), the Presidency of Migration Management, and the General Directorate of Security work in integration.

Ç Codes (Ç-113, Ç-114, etc.): Generally denote entry bans for foreigners or dual citizens. However, they can also be processed into the passports of Turkish citizens on grounds such as “suspicion of illegal exit.”
G Codes (G-87, etc.): Used for persons posing a danger in terms of “General Security.” It is the most frequently encountered code type with the weakest legal basis.
N Codes (N-82, etc.): Those whose entry depends on preliminary permission.

Council of State finds the “secret” nature of these codes to be unlawful. The fact that the individual is unaware of an administrative act (code assignment) established about them restricts the “freedom to seek legal remedies.” Therefore, when filing a passport annulment lawsuit, the plaintiff’s attorneys must definitely request “the cancellation of the restriction code, if any.” Otherwise, even if the passport cancellation act is lifted by the court, the person may not be able to obtain a new passport due to the code in the system.

3.2. The Place of “Affiliation and Connection” Concepts in Restrictions

Especially in the post-July 15 period, passport cancellations were made on the grounds of “those determined to have affiliation, cohesion, or connection with terrorist organizations.” The concept of “affiliation” (adhesion/link) is a broader and more flexible administrative definition than the concept of “membership” in criminal law. However, the Constitutional Court and the Council of State have established jurisprudence that the concept of affiliation must be based on concrete information and documents, and that mere intelligence notes or kinship relationships are insufficient for the assumption of affiliation.

The 10th Chamber of the Council of State finds the cancellation of a person’s passport on the grounds that there is an investigation against their spouse to be contrary to the principle of “individuality of crime and punishment.” This shows that the administration’s practice of “collective punishment” has been reversed by the judiciary.

Section IV: Administrative Application Process and Procedural Law Details

Procedural rules that must be followed before and during the application to the judicial remedy against passport cancellation or restriction are of vital importance for entering into the merits of the case. The Administrative Jurisdiction Procedures Law (İYUK) stipulates strict formal conditions and time limits.

4.1. Learning of the Act and the Notification Problem

Passport cancellations are usually not notified to the person with an official notification. The person “learns” of this situation either while leaving the country at the airport or when making an inquiry via e-Government. In administrative law, the period for filing a lawsuit starts from the date of “written notification” (İYUK Art. 7). However, in cases where notification is not made, it is controversial whether the “date of learning” will be taken as the basis.

According to the settled jurisprudence of the Council of State, the lawsuit filing period does not run unless a proper notification is made. However, the person can initiate the process by declaring that they have learned of the act (e.g., by submitting a petition to the institution). The minutes kept at the airport can be accepted as the “learning” date; therefore, citizens need to calculate the period carefully from the date of the minutes.

4.2. Application to the Administration: Mandatory or Optional?

The passport cancellation act is an “administrative act.” An annulment lawsuit can be filed directly after the act is established. However, it is strategically beneficial to learn the reason for the act and invite the administration to “revoke the act” (revocation act).

Authority of Application: The Ministry of Interior that established the act or the Provincial Governorship (Directorate of Population) that issued the passport.
Period: Application to the administration must be made within the 60-day lawsuit filing period. When an application is made, the lawsuit filing period stops.
Implicit Rejection (Silence): If the administration does not respond to the application within 30 days, the request is deemed rejected (İYUK Art. 10). From this “implicit rejection” date, the stopped lawsuit filing period continues to run from where it left off.

Example Scenario:

Citizen A learned on January 1st that their passport was cancelled. On January 10th, they submitted a petition of objection to the Ministry of Interior. The administration did not respond.

Implicit rejection occurs on February 10th (after 30 days).
Remaining time for the citizen to file a lawsuit: 60 – (Jan 10 – Jan 1) = 51 days.
This period starts running from February 10th.

4.3. Passport Administrative Decision Commission

Following the closure of the Inquiry Commission on the State of Emergency Measures, a special commission was established within the Ministry of Interior for passport returns. Specifically, passport applications of those dismissed by Decree Law are evaluated by this commission. Application to this commission may be considered a “mandatory administrative remedy to be exhausted” in some cases. However, in general passport cancellations (non-Decree Law), it is possible to go directly to the administrative court.

Section V: Annulment Action (Petition, Venue, Jurisdiction, and Hostility)

The center of judicial review is the “Annulment Action” to be filed in Administrative Courts. This lawsuit ensures the retroactive elimination of the administrative act.

5.1. Competent and Authorized Court

Jurisdiction (Task): Since it is a lawsuit for the annulment of an administrative act, the competent court is the Administrative Court.
Venue (Authority): Pursuant to Article 32 of İYUK, the court where the administrative authority that performed the act is located is authorized.
- If the passport cancellation was done directly by the Ministry of Interior (Ankara), the authorized court is Ankara Administrative Courts.
- If the act was performed by the Governorship, the administrative court of the relevant province is authorized.
- Conflict of Venue: In practice, it is frequently seen that Governorships act upon instructions from the Ministry. In this case, although the act appears to be a “Governorship act,” the real will belongs to the Ministry. The 10th Chamber of the Council of State renders decisions that the authorized court is the Ankara courts where the Ministry is located in such cases. However, filing the lawsuit in the wrong place does not lead to a loss of rights; the court issues a decision of “lack of venue” and sends the file to the authorized court (İYUK Art. 43).

5.2. Hostility (Defendant Administration)

The owner of the act must be shown as the defendant in the lawsuit petition. Usually, the Ministry of Interiorand/or the Governorship is shown in the position of the adversary. Showing the wrong adversary does not require the rejection of the lawsuit; the court performs “adversary correction” (İYUK Art. 15) and directs the lawsuit to the correct administration.

5.3. Grounds for Annulment: Analysis via 5 Elements of the Act

In the lawsuit petition, the unlawfulness of the passport cancellation should be grounded on the following five elements:

5.3.1. Element of Competence

Only the authorized authority can perform an administrative act. After the annulment decision of the Constitutional Court, the authority of the Ministry of Interior to cancel passports on the grounds of “general security” has become controversial. In the petition, it should be argued that the administration “usurped judicial authority” (usurpation of function).

5.3.2. Element of Form

The act must be reasoned, written, and notified. An “unreasoned act” or “template reasons” that are merely repetitions of the law article are grounds for annulment in terms of form. The Council of State requires the administration to present the concrete facts (date, place, event) underlying the act in the text of the act or in the defense petition.

5.3.3. Element of Cause (The Most Critical Stage)

The administration must prove the material fact it relied on when cancelling the passport.

Intelligence Information: The Council of State states that “intelligence information is the beginning of evidence but cannot be the sole basis for a judgment.” That is, the cancellation of the passport of a person against whom there is no investigation solely based on a MIT (National Intelligence Organization) or Police intelligence note is unlawful in terms of cause.
Acquittal/Non-Prosecution: If the person has been tried and acquitted or a decision of Non-Prosecution (KYOK) has been given, it is unlawful for the administration to still not issue a passport with the claim of being “affiliated.” The presumption of innocence is essential.

5.3.4. Element of Subject

It is the legal result created by the act. If the passport cancellation produces a result contrary to Article 23 of the Constitution (travel ban without a judge’s decision), it is defective in terms of the subject element. The 2024 annulment decision of the Constitutional Court registered the defect of this element.

5.3.5. Element of Purpose

The purpose of the administration can only be “public interest.” Acts performed with political motives, for the purpose of punishment, or to harass the person constitute “misuse of power” (détournement de pouvoir).

Section VI: Request for Stay of Execution (YD)

In passport cases, stopping the effect of the act before the end of the lawsuit is vital. The Stay of Execution decision suspends the validity of the administrative act and gives the person the right to use their passport temporarily.

6.1. Conditions for Stay of Execution (İYUK Art. 27)

Irreparable or Impossible Damage: Absence of a passport causes irreparable damages such as loss of the right to education, commercial bankruptcy, disruption of health treatment, or disruption of family unity. Courts generally accept the existence of this condition.
Clearly Unlawful: After the annulment decisions of the Constitutional Court, the claim that administrative restrictions “have no legal basis left” has strengthened the condition of clear unlawfulness.

6.2. Stay of Execution Decisions in Practice

Administrative courts decide on the Stay of Execution after receiving the first defense of the administration. The defense period is usually determined as 15-30 days. If the administration submits “secret documents” in its defense, the court examines these documents (in camera examination) but may not show them to the plaintiff. If the administration cannot present a concrete court decision, the court grants the Stay of Execution decision and ensures the return of the passport.

Section VII: Compensation (Full Remedy) Actions and Remedying Rights Violations

Unlawful passport cancellation constitutes a “service fault” of the administration. Pursuant to Article 125 of the Constitution, “The administration is liable to compensate for the damages resulting from its own acts and actions.”

7.1. Pecuniary Compensation Claims

The plaintiff can claim direct damages suffered due to passport cancellation:

Burnt plane tickets and hotel reservations.
Visa fees paid.
Earnings deprived due to loss of business abroad (Proof is difficult, definite evidence is required).
Passport fees and booklet costs.

Table 1: Burden of Proof in Compensation Claims

Damage Item	Required Document	Power of Proof
Plane Ticket / Hotel	Invoice, Cancellation Document	High
Visa Expense	Consulate Receipt	High
Commercial Loss (Loss of Profit)	Contract, Notice of Termination, Expert Report	Medium/Low (Causal link mandatory)
Health Expense	Hospital appointment abroad, Report	High

7.2. Non-Pecuniary Compensation Claims

Restriction of freedom of travel, violation of the person’s “right not to be stigmatized,” and pain and suffering felt due to being shown as connected with a terrorist organization are subjects of non-pecuniary compensation. The Council of State states that non-pecuniary compensation “should be in an amount that will make the administration feel the gravity of its fault, although it is not a means of enrichment.”

Courts award non-pecuniary compensation especially for people whose passports are confiscated by the police at the airport and who are humiliated in front of their families. In Council of State decisions, it has been emphasized that the uncertainty caused by the lack of “immediate notification” is also a ground for non-pecuniary compensation.

7.3. Period for Filing Compensation Lawsuit

A full remedy action can be filed together with the annulment action, or it can be filed after the annulment decision becomes final (İYUK Art. 12). Application must be made to the administration within 60 days from the finalization of the annulment decision, or a lawsuit must be filed directly. Strategically, requesting compensation together with the annulment lawsuit (cumulative lawsuit) is suitable for procedural economy.

Section VIII: Advanced Analysis and Future Projection

8.1. Pangs of Transition from “Intelligence State” to “Rule of Law”

Passport cancellations constitute the most fundamental tension line of administrative law in Turkey: The conflict between the state’s security reflex and the principle of certainty of the rule of law. The 2024 Constitutional Court decisions turned the pointer towards the rule of law in this conflict. The administration has now lost the comfort of “taking action based on secret information.”

8.2. New Tactics of the Administration and Possible Legal Regulations

A legal gap has emerged after the annulment decision of the Constitutional Court. The government is expected to make a new legal regulation by taking into account the annulment grounds of the Constitutional Court (condition of judge’s decision). Until this new regulation is made, if the administration continues with old habits (de facto restrictions, codes), administrative courts will force the administration to comply with the law through compensation decisions.

8.3. Individual Application and ECHR Dimension

If no result is obtained after exhausting domestic remedies (Administrative Court, Regional Administrative Court, Council of State), an individual application must be made to the Constitutional Court. The Constitutional Court renders decisions of violation of “right to respect for private life” in passport cancellations (pilot judgment) and sends the file back to the court to remedy the violation. The ECHR, in decisions such as İletmiş v. Turkey, has registered that arbitrary travel bans are contrary to Protocol 4 of the ECHR.

Conclusion and Recommendations

Passport cancellation and restriction is a severe sanction that severs the individual’s tie with the world, beyond a simple administrative act. As of 2025, Turkish law has entered a phase where this sanction can only be applied by an independent judicial decision.

The roadmap for lawyers and rights holders is clear:

Do Not Remain Silent: Use your rights to administrative application and lawsuit within the time limits.
Rely on the Constitutional Court Decision: Make the Constitutional Court’s decision E. 2024/112 a fundamental argument in lawsuit petitions.
Demand Compensation: Compensation lawsuits are the most effective pressure tool for the administration to change its unlawful habits.
Follow Up: Make a special request for the cancellation of restriction codes (G, Ç, N), otherwise, even if you physically receive the passport, you may experience problems at the border gate.

A passport is not a privilege, but a right arising from citizenship law. The administrative judiciary will continue to function as the guarantor of this right.

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