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(1981)1981 July 11 [DEMETRIADES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION NICOS ZEMBYLAS, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF INTERIOR, Respondent. (Case No. 22/80). Citizenship—Citizen of the Republic of Cyprus—Illegitimate child— Legitimated by his parents subsequent marriage—His father a citizen of the United Kingdom and Colonies, born after the 5th November, 1914, ordinarily residing in Cyprus at some time in the period of five years before Independence and who on the 5 day of the Treaty of Establishment of the Republic of Cyprus became a citizen of the Republic—Said child residing in Cyprus on day of said Treaty—Automatically became a citizen of the Republic by virtue of section 2(c) of Annex D to the said Treaty— Fact that he was illegitimate at the material time does not change 10 the position—Moreover said child a citizen of the Republic by virtue of the combined effect of section 4 of the Illegitimate Children Law, Cap. 278 and of sections 9
(1)and 3 of the Republic of Cyprus Citizenship Law, 1967 (Law 43/67). The applicant was bom in Stockholm, Sweden, on the 22nd 15 September, 1959 and was the holder of a Swedish passport. He came to Cyprus with his mother on the 24th January, 1960, as a visitor. At the material time his parents were not married but they were married together on the 30th December,
  1. Applicant's father was bora on the 2nd April, 1937 at Myrtou, 20 Kyrenia and on May 30, 1962, a Cyprus Passport was issued 258 3 C.L.R. 5 10 15 20 25 30 35 Zembylas v. Republic to him. Attached to the application for the issue of this passport there.wasa certificate from the mukhtar of Ayios Andreas Quarter, Nicosia, to the effect that during thefiveyears period immediately prior to the 16th August, 1960, which is the date of the Proclamation of the Republic, he resided, ordinarily, in the said quarter. On August 30, 1972, another Cyprus Passport was issued to applicant's father ; and on his application for this passport he again stated that his place of residence during the period 16th August, 1955 to 16th August, I960 was Cyprus. On December 27, 1979applicant applied, through hiscounsel, to the Chief Immigration Officer for a certificate that he was not a citizen of the Republic on the ground that his parents were permanently residing in Sweden during the period 16th August, 1955 to 16th August,
  2. The.Acting Chief Immigation Officer informed Applicant's counsel that both the applicant and his father, were citizens of the Republic of Cyprus by virtue of section 2* of Annex D to the Treaty of Establishment of the Republic of Cyprus. Hence this recourse. Held, (afterfindingthatapplicant'sfather was, at the material time, a citizenof the United Kingdom and Colonies, thathewas bornafter the 5th November, 1914, that he was ordinarily residinginCyprus atsometimeintheperiodoffiveyears immediately beforeIndependence and that he did, on the day of the Treaty, automatically become a citizenof the Republic) that the applicant, though at the time an illegitimate child of his father, was, on the day of the Treaty, residing in Cyprus and he, too automatically became a citizen of the Republic since he possessed qualification (c) of Annex D to the Treaty of Establishment in that he was a person descended in the male line from a person who was born in the Island on or after the 5th November, 1914; that the applicant was, at the material time, an illegitimate child, does not change the position, as qualtfication (c) only provides that a person possesses the qualification to become a citizen of the Republic if he descends in the male line from a person possessing qualifications (a) and (b) of section 2 of Annex D ; that further, the applicant is a Quoted at p.264 post. 259 Zembylas v.Republic
(1981)citizen of the Republic by the combined effect of section 4* of the Illegitimate Children Law, Cap. 278, and of sections 9
(1)** and 3*** of the Republic of Cyprus Citizenship Law, 1967 (Law 43/67) ; and that, therefore, the Chief Immigation Officer was right in his decision not to grant the applicant a 5 certificate to the effect that he is not a citizen of the Republic of Cyprus ; accordingly the recourse must be dismissed. Application dismissed. Recourse. Recourse against the decision of the respondent whereby 10 it was decided that applicant is a citizen of the Republic. A. Indianos with N. L. Clerides, for the applicant. A. Papasavvas, Counsel of the Republic,for the respondent. Cur. adv. vult. DEMETRIADES J. read the following judgment. The applicant in this recourse prays for— " 1 . A declaration of the Court that the act and/or decision of the respondent communicated to applicant's counsel by or on behalf of the Chief Immigration Officer on the 14.1.1980 to the effect that applicant is a citizen of the 20 Republic of Cyprus should be declared null and void and of no effect whatsoever. 2. A declaration of the Court that the omission of the respondent to supply applicant with a certificate to the effect that he is not a citizen of the Republic ought not 25 to have been made and that applicant should have been supplied with such a certificate", and bases his application on the following grounds of law: That he is not a citizen of the Republic because he does not fall within section 2 of Annex D to the Treaty of Establishment 30 in that— "(a) he was born in Sweden (Stockholm) on the 22.9.59 and he is the holder of Swedish passport No. UR 043645, and • Section 4 is quoted at p. 265 post. ** Section 9
(1)is quoted at p.265 post. *·* Section 3is quoted at p. 265 post. 260 15 3 C.L.R. Zembylas τ. Republic Demetrlades J. (b) his father did not have his ordinary residence in the Republic of Cyprus at any period within the period of 5 years before the Proclamation of the Cyprus Republic". 5 Thefacts relied upon by the applicant in support of his appli­ cation are thai he was born in Sweden (Stockholm)on the 22.9. 1959 and is the holder of Swedish passport No. UR 043645; that his parents were permanently established in Sweden when he was born; that his father was never ordinarily in Cyprus 10 at any time during the five years preceding the Proclamation of the Republic of Cyprus, but during the said period he was permanently residing in Sweden; that his counsel did, on the 27.12.1979, apply for a certificate from the Chief Immigration Officer that applicant is not a citizen of the Republic for the 15 reasons therein stated; and that the Chief Immigration Officer, by his letter of the 14.1.1980replied to applicant's counsel that applicant was a citizen of the Republic of Cyprus. The respondent opposes the application and alleges that the applicant is a citizen of the Republic of Cyprus by virtue of 20 sections 2
(1)and 2
(2)(c) of Annex Dto the Treaty of Establish­ ment. The facts on which the respondent bases his opposition are in brief the following: Theapplicant,who is thechild of Michael Nicolaou Zembylas andUlla-Margarethe Dymling,was both inStockholm, Sweden, 25 on the22nd September,
  1. At the material time his parents were not married. He is the holder of Swedish Passport No. UR
  2. The father of the applicant, Michael Zembylas, was .born on the 2nd April, 1937, at Myrtou, Kyrenia. After anapplicationmadebyhimonthe8thSeptember, 1955, Passport 30 No.64306was issued to him in order to travel abroad for plea­ sure. In his application Mrr Zembylas stated that he resided in Cyprus as from his birth. On the 30th December, 1961, Mr.Zembylas (thefather) married,at theNicosia Civil Registry, Ulla-Margarethe Dymling, the mother of the applicant, and 35 onthe 5th February, 1962, the Chief Immigration Officer issued a certificate stating that Ulla-Margarethe Zembyla was a native of Cyprus inaccordance with theprovisions of the Aliens and Immigration Law, Cap.
  3. According to information given by theChief of thePolice to the Immigration Authorities, 261 Demetriades J. Zembylas v. Republic
(1981)the applicant came to Cyprus with his mother on the 24th January, 1960, as a visitor. On the 30th May, 1962, Cyprus Passport No. 44309 was issued to Mr. Zembylas. Attached to the application for the issueofthispassport to Mr.Zembylas(thefather) isacertificate 5 from the mukhtar of Ayios Andreas Quarter, Nicosia, to the effect that during the five years period immediately prior to the 16thAugust, I960,heresided,ordinarily,inthesaid quarter. As a result of another application by Michael Zembylas, dated 3rd May, 1967, Cyprus Passport No. C27316was issued 10 to him. In his said application, Mr. Zembylas reports that during the period 1955 to 1960 he resided in the following places:(
  1. a)From 1956 to 1957 in Athens. (
  2. b)From 1957 to 1960 in Sweden, and (
  3. c)From 1960 to 1962 in Nicosia. 15 On the 11th December, 1970, a Travelling Document was issued to Mr. Zembylas, so that he could travel to Israel. Byanapplicationdated 9thOctober, 1979,whichwascountersigned by his father, the applicant applied that a certificate 20 to the effect that he is not a citizen of the Republic of Cyprus be issued to him. In the appUcation it is stated that his permanent residence as from 1960 is Cyprus and that his father left Cyprus for the first time in February, 1956. On the 27th December, 1979, Mr. L. Clerides, an advocate, 25 of Nicosia, wrote, on behalf of the applicant, to the Chief Immigration Officer and applied that a certificate that he is not a citizen of the Republic be issued to him on the ground that the parents of his client were permanently residing in Sweden during the period 16th August, 1955 to 16th August, 30 i960. By a letter dated the 14th January, 1980, the Acting Immigration Officer replied to Mr. Clerides' said letter and informed himthattheapplicant,aswellashisfather,arecitizens of the Republic of Cyprus by virtue of section 2 of Annex D to the Treaty of Establishment of the Republic of Cyprus. 35 Onthe30thAugust, 1972,anotherCyprusPassportwasissued to Mr. Michael Zembylas, No. A085954. On the application 262 3 C.L.R. Zembylas τ. Republic Demetriades J. he submitted in order to get this passport, it is again stated that his place of residence during the period 16thAugust, 1955 to 16th August, 1960, was Cyprus. Counsel for the applicant in his address admittedthat appli5 cant's father left Cyprus for Athens in 1956, but alleged that as from 1955 to 1956 hewas under persecution for his involve­ ment in the EOKA strife, that because of this he could not leaveCypruslegally, andthathefinally managedtoleaveCyprus secretly in 1956. Counsel again admitted that the father of 10 theapplicantreturnedto Cyprus in 1959 butthatduetounfore­ seenevents,hisstay in Cypruswas prolonged beyondhis powers andagainst hiswillas hewas arrestedby theBritish Authorities and his passport was destroyed. Counsel further alleged that the intentionof the father, from 1959 to 1962, was all along to 15 leave Cyprus and re-unite with his family in Sweden where he was working. He, however, does not deny the fact that the applicantandhismothercameto Cyprus in 1960 andremained here until now. As it appears from the passportfile of Mr. Zembylas, which 20 was produced and is an exhibitbefore me, none of the above allegations made by counsel in his written address arecorrect, in thatwhen Mr.Zembylas inAugust, 1955,applied for a pass­ port, he attached to his application a certificate by his then employersinwhichitisstatedthathewaspermanentlyemployed 25 by them and that he had been given a month's vacation leave for atripabroad;thatas a result of his said application United Kingdom and Colonies Passport No. 64306 was issued and delivered to him on the9th September, 1955; thatthis passport was later,after theIndependenceof Cyprus,attachedto another 30 application made by Mr. Zembylas sometime in May, 1962, for the issue to him of a passport of the Republic of Cyprus and that Passport No/64306 was returned to him on the 30th May, 1962, together with the new passport. It is pertinent to mentionhere that in all his applications for theissue tohim 35 of a passport or a travelling document, Mr. Zembylas stated, and his statements were supported by certificates given to him by the Police or the Chairmanof the quarter where he resided, that for the period of 16th August, 1955 to the 16th August, 1960, Cyprus was his country of residence. 40 When Cyprus was declared an independent State in August, 263 Demetrlades J. Zembylas v. Republic
(1981)I960,Annex Dto theTreaty ofEstablishment wassignedwhere there are made provisions determining the nationality of the persons affected by the agreement reached for its independence. The persons who, by reason of their connection and residence in Cyprus, automatically became citizens of the Republic from its establishment are defined in section 2 of the said Annex. The relevant paragraphs of this section read as follows:- 5 "I. Any citizen of the United Kingdom and Colonies who on the date of this Treaty possesses any of the qualifications specified in paragraph 2 of this Section shall 10 on that date become a citizen of the Republic of Cyprus if he was ordinarily resident in the Island of Cyprus at any time in the period of five years immediately before the date of this Treaty. 2. The qualifications referred to in paragraph 1 of this 15 Section are that the person concerned is— (
  1. a)a person who became a British subject under the provisions of the Cyprus (Annexation) Orders in Council, 1914 to 1943; or (
  2. b)a person who wasborn in the Island of Cyprus on or 20 after the 5th of November, 1914; or (
  3. c)a persondescendedinthemalelinefrom suchaperson as is referred to in sub-paragraph (
  4. a)or (
  5. b)of this paragraph. 3 " Inthelightofthefactswhichwereplacedbeforemebycounsel in their written addresses, I find that applicant's father was, at thematerial time,a citizen ofthe United Kingdom andColonies, that he was born after the 5th November, 1914, that he was ordinarily residing in Cyprus at some time in the period 30 offiveyears immediately before Independence and that he did, on the day of the Treaty, automatically become a citizen of the Republic. The applicant, though at the time an illegitimate child of his father, was, on the day of the Treaty, residing in Cyprus 35 and he, too, automatically became a citizen of the Republic since he possessed qualification (
  6. c)of Annex D to the Treaty 264 25 3 C.L.R. Zembylas v. Republic Demetriades J. of Establishment, inthat hewasa person descended inthemale line from a person who was born in the Island on or after the 5th November, 1914. That the applicant was, at the material time, an illegitimate child, does not, in my view, change the 5 position,asqualification (c)onlyprovidesthatapersonpossesses the qualification to become a citizen of the Republic if he descendsinthemalelinefrom a personpossessing qualifications (a)and (
  7. b)of section2 of Annex D. Further, the applicant is a citizen of the Republic by the combined effect of section 4 10 of the Illegitimate Children Law, Cap.278,and of sections9
(1)and 3 of the Republic of Cyprus Citizenship Law, 1967 (Law 43/67). The afore-mentioned sections read as follows:- 15 20 25 "4. Where the parents of an illegitimate child marry one another such child shall acquire, as from the date,of his birth, the legal status of a legitimate child in respect of both his father and mother and their relatives by blood". "9
(1)An illegitimate child legitimated in accordance .with the law of personal status pertaining to him.shall, as from the date of such legitimation or the date of the coming into operation of this. Law, whichever is later, betreated, for the purposes of this Law, as if hehad been born legitimate". "3. Citizens of the Republic are the persons who, on the date of the coming into operation of this Law, either have acquired or are entitled to acquire citizenship of the Republic under the provisions of Annex D or who acquire thereafter such citizenship under the provisions of this Law". Havinginmindalltheabove,IfindthattheChief Immigration 30 Officer was right in his decision not to grant the applicant a certificate to the effect that he is not a citizen of the Republic of Cyprus. In the result, the application is dismissed but, in the circumstances, I make no order as to its costs. 35 Application dismissed. No orderas to costs. 265

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