clr/1987/1987_3_1070.pdf

(1987)1987 July 22 IPIK1S, J.] INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION PATRICKMAWRICE C. THYSSEN, Applicant, v. THE REPUBLICOF CYPRUS,THROUGH

1. THE COUNCILOF MINISTERS,
2. THE MINISTEROF INTERIOR, Respondents. (CaseNo. 570/87). Executoryact—Informatory act—Forewarning ofapplicant, aforeigncitizen, that his residencepermit due toexpireonafuture day wouldnot berenewed — Primafacieitis of an informatorynature. Provisionalorder — Negative act — Cannot besuspended bysuch an order— Decisionnottorenew aforeigncitizen'$residencepermit — A negativeact. 5 Provisionalorder—Application for, torestrainauthoritiesfromdeportingaforeign citizeninfurtheranceof adecisionnot to renew hisresidencepermit—In the absence of a deportation orderthe orderapplied for is designedtosuspend effect of anon-existent act. The applicant, a Belgian national, wasgranted a temporary residence 1 0 (employmentpermit)inorder tomanage an offshore company. As a result the applicant established his home inCyprus. The permit was renewed insix monthly Intervals. On 8.5.87 the Immigration Authorities forewarned the applicant that his currentpermit,which was due toexpire on20.8,87, would notbe renewed. 1Γ Hence the present recourse and this application fora provisional order restraining therespondentfrom deportingtheapplicant,when thepermitwill expire on 20.8.87, infurtherance of thedecision nottorenew thepermit. Held, dismissingthe application:

(1)Primafacie thesubjudice actisofan informatory nature,signifyingthefuture intentionof theauthorities.

(2)Nodeportation order hasso far been made and, therefore, the 1070 20 3C.L.R. Thyssen v. Republic provisional orderisdesigned tosuspend anon existentact. 5

(3)Supposing that the sub judice act is of an executory nature, the application is again doomed to failure, because the act in question is a negative act. The suspension of the refusal of the decision not torenew the permitwouldnotentailarightoftheapplicanttostayinCyprus.Sucharight canonlybeacquired byapositiveadministrative decision. Applicationdismissed. No orderasto costs. Casesreferredto: 10 Sayigh v.Republic

(1986)3C.L.R.277; Suleiman v.Republic

(1987)3 C.L.R.224; Amanda MargaLtd. v.Republic

(1985)3C.L.R.

1. Application for provisional order. Application for a provisional order restraining the respondents 15 from deporting the applicant from Cyprus in furtherance to their decision to refuse permission to stay in Cyprus until the final determination ofthe recourse filed againstthe said decision. N. KaniasforC. P.Erotocritou,forthe applicant. Cur.adv. vult. 20 PIKIS J. read the following judgment. Patrick Thyssen, a Belgian national, is the Manager and main shareholder of an offshore company that operates from Cyprussince 1982.Hewas given a temporary residence (employment permit) in order to manage the company that was renewed atsixmonthly intervals. 25 Following the permission given him, he established his home in Cyprus where he resides with his family. The residence permit currently inforce isdue toexpire on20th August,
2. On 8th May, 1987, the Immigration Authorities forewarned the applicant that his permit would not be renewed after 20th 30 August, 1987,and invitedtheapplicanttoleavethecountryon or before that date. His protestations were of no avail. The Immigration Authoritiesreiteratedon 7thJuly, 1987,theydid not contemplatetherenewalofthepermitandremindedthe applicant of the need to make the necessary arrangements to leave the 35 country before the 20th August, 1987.The present proceedings are directed against the act or omission of the respondents of8th May, 1987, to refuse further extension of the permit of the 1071 PtkUJ. Thyssen τ.Republic

(1987)applicant. Following the initiation of the proceedings an application for a provisional order was made to restrain the respondents from deporting the applicant from thecountryin furtherance totheir decision torefuse permission tostay in the country after the20thAugust,

1. Inanaffidavit supporting the 5 application,theapplicantasserts thatpersistence inthedecision of the Immigration Authorities will have ruinous financial consequences for himself and will greatly unsettle his family. Before examining the merits of the application fora provisional order,there are two preliminary observations tobemade. First,it 10 isdoubtful whetherthesubject-matter of therecourse is justiciable inasmuchasthecommunicationof8thMay, 1987, does notprima facie appear to be anything other than an informatory act signifying totheapplicantthefuture intentionofthe authoritiesto actalong certainlines.Second,noorderofdeportationwas made; 15 consequently, theprovisional ordersought isdesigned to suspend the enforcement ofan inexistent act. Supposing that the recourse is directed against an executory decision to refuse permission to stay in the country after the 20th August,1987, theprovisional ordercanatitshighest,betreatedas 20 an application to suspend the enforcement of a negative administrative act;acourse doomedtofailure. Aprovisional order cannotconvert anegative administrative actintoapositive one for in that situation the judiciary would be assuming administrative functions. IfthatweretohappentheCourtswould actintheplace 25 of the Administration. Ifwe suspended the refusal toextend the permitafter the 20th,the applicantwould acquire no right to stay in the country. Such a right could only be acquired through administrative act. As explained in Saying v. Republic* and Suleiman v.Republic** a provisional order cannotbe employed 30 asameansofside stepping refusal torenewpermission toanalien to stay inthe country***. The application is dismissed. Application dismissed. '(lSe$3CLR,
2. **

(1987)3CLR224. · · · AmandaMamaLtd. v.Republic

(1985)3C.L.R. 2583. 1072