(1987)1987October22 iLORIS J] INTHE MATTEROF ARTICLE146OF THE CONSTITUTION 1 ANTONISBALALAS, 2 MARILLIA BALALA, Applicants, ν THEREPUBLICOFCYPRUS,THROUGH 1 THE MINISTEROF INTERIOR, 2 THE IMMIGRATIONOFFICER Respondents (CaseNo 476/84) Executoryact—Confmnatoryact—Legitimate interest—Constitution, Art 1462 — Wifeofan alienhusband— Her request thatherhusband beallowedto enter the Republic turneddown—She does notpossesslegitimateinterestto challengesuch refusal Aliens—Entry of—InInternationalLawthe entryofaliensisamatter ofdiscretion 5 Words and Phrases 'Native ofCyprus», insection2oftheAliensandImmigration Law, Cap 105, asamended by Law2/72—Alien husbandof aCypnot wife —He isnot a'native of Cyprus»—Karahotasv RepuWic
(1986)3CLR 501 followed On 21 482 applicant 1,a Greek National, was declared a prohibited 1 0 immigrant Asaresult he was deported and hisnamewas placed onthestop list Applicant 1 challenged by recourse to thisCourtthe decision todeport him andplace himon thestoplist On 15982 therecourse was withdrawn Applicant 2isthe wife ofapplicant 1 She isa citizen ofthe Republic of Cyprus On 14784 counsel for applicantNo 1requested theImmigration Officer toallow applicanttoenterCyprusandon20 884 applicant No 2 addressed a similar written request inrespect of applicant No 1tothe Immigration Officer On 17884the Immigration Officer in atetterofeven date addressed to 2 0 counsel for applicant No 1 turneddown therequest ofhisclientfor re-entry inCyprus statingthattheentry of applicant No 1toCyprus is undesirable 1286 15 3 C.L.R. Balalasand Anotherv. Republic Hencethis recourse 5 Held, dismissing the recourse
(1)The sub judice decision is not of an executory, but ora confirmatory nature Itconfirms thedecision of 21 4 82to deporttheapplicant Thejoining of applicant2inthisrecourse does notcarry the case any further, because applicant 2 has no legitimate interest, as envisaged by Art 146 2 of the Constitution
(2)Assuming thatthe sub judice decision isexecutory, therecourse hasto be dismissed on thefollowing grounds 10 (a)Thecontentionthatapplicant 1isa«native ofCyprus» accordingto section2ofCap 105,asamendedby Law 2/72 cannotbeaccepted An alien husband of a wife, who is a citizen of Cyprus, is not a «native of Cyprus. {Karahotas ν Republic
(1986)3 C LR 501) (b)InInternationalLaw the reception of aliens by a State isa matter of discretion 15 Recoursedismissed No orderas tocosts Casesreferredto Karahotas ν Republic
(1986)3 C LR 501, Musgrovev Chun Teeong Toy [1891]AC 272 20 Recourse. Recourse against the refusal of the respondents to allow applicant No 1to enter Cyprus. A Eftychiou, for the applicants. D Papadopouhu (Mrs.), for the respondents. 25 Cur adv. vuit LORISJ read the following judgment. Applicant No. 1, a Greek National,amved inCyprus for first time on 30.10.
- WhilstinCyprus hegot mamedtoaCypriotgirlnamelyMartha Koumi on 14.7.68; a child was bom out of the said wedlock on 30 2.12.
- Applicant No. 1who was unemployed duringthesaid time, was repeatedly reported to the police by his said wife for beating her, demanding money from her and abandoning her. Police investigations revealed that applicant No. 1 had at the time 35 relations with another Cypriot girl notably applicant No.2, who became hislawful wife some tenyears later. 1287 LorisJ. Balalas andAnotherv.Republic
(1987)Afterseveral convictionsforassaultinghisfirstwife,stealingand Dbtaining money by false pretences during the years 1968 and 1969 applicant No. 1was deported from Cyprus on 13.3.70 and lisname was placed on thestop list. After the turning down by the Immigration Officer of several requests of applicant No. 1for the removal of his name from the stop list, finally on 13.4.71 applicant's name together with the namesof other persons wereremoved from thestoplist(videred. 15in Ex.1). 5 Asa resultapplicant No.1 returned toCyprus;havingdivorced 10 his first wife on 27.4.72 he got married to applicant No. 2 on 24.9.
- Shortly after his second marriage applicant No. 1 started running the same life he was running prior to his deportation in 1970.Hecreated illicitrelationswithanotherCypriotgirl(videher 15 statementtothepoliceinreds85,86,87 ofEx.1)whom hestarted oeating aswell;atthe sametimehisrelationswithapplicant No.2 Aiere proceeding from bad to worse and he was repeatedly reported to the Police by applicant No. 2 for assaulting her and abandoning her. Applicant No. 1inparallelwithhiserotic lifehecontinued tobe mostlyunemployed, demandingmoneyfrom hiswifeand beating her brutally on occasions. On 17.4.81 the Immigration Officer granted totheapplicanthis final temporary permit, to reside and work in Cyprus, valid until 25 the30th August
- Applicant No. 1 throughout this last period was mostly unemployedand hecontinued runninghispreviousunstablelife. On21.4.82 applicantNo.1 wasdeclaredprohibited immigrant, hewasdeported (videdeportation Orderunders. 14ofCap. 105 30 - Red 118 in Ex. 1) through Lamaca airport on 23.4.82 and his name was placed on the stop list(vide red 123 inEx.1). On 3.5.82 applicant's lawyer addressed a letter to the Cyprus Embassy in Athens protesting against the deportation order against his client and requesting permit of the latter to re-enter 35 Cyprus. 1288 20 3 C.L.R. Balalas andAnotherv.Republic LorisJ. At the same time applicant No. 1 addressed a letter to the Ministerof Interior requesting (a)reconsideration ofthe aforesaid decision and (b)permit tore-enter Cyprus. 5 On 26.5.82 the Immigration Officer in reply to counsel for applicant No. 1 stated that the request was examined but «for reasonsof public interesthisre-entry inCyprus isundesirable.> On 6.7.82 applicant No. 1filed recourse No.274/82 seekinga declaration tothe effect that the decision of the respondent (a)to 10 deport applicant and (b)toplace hisname on the top listwasnull and void.Thisrecourse waswithdrawn on 15.9.
- On 14.7.84 counsel for applicant No. 1 requested the Immigration Officer to allow applicant to enter Cyprus (vide red 156in Ex. 1)and on 20.8.84 applicant No.2 addressed asimilar 15 written request in respect of applicant No. 1 to the Immigration Officer. On 17.8.84 the Immigration Officer in a letter of even date addressed tocounsel forapplicant No. 1turned down the request ofhisclientforre-entryinCyprusstatingthattheentryofapplicant 20 No. 1to Cyprus isundesirable (VideAppendix 1)attached to the recourse. The respondents in their opposition raise the preliminary objection that the letter of 17.8.84 (Appendix 1attached to the recourse) does not contain adecision ofan executory character. 25 Having carefully gone through the record and the material before me, including the two administrative files which are Exhibits1 and2before meIholdtheviewthattheletteraddressed bytherespondentstocounselforapplicantNo. 1 doesnotcontain adecisionofanexecutorycharacterbutitismerelya confirmatory 30 decision which indicates their adherence to their executory decision of 21.4.82, whereby applicant No. 1 was declared a prohibited immigrantand wasdeported from Cyprus. The aforesaid decision wasimpugned asaforesaid by recourse No. 274/82 which was later withdrawn and several requests of 35 applicant No. 1 for re-entry in Cyprus were turned down by the administration, including the present one which resulted in the confirmatory decision under consideration. Thejoiningofapplicant No.2inthepresent recoursedoesnot carry the case of applicant No. 1 any further simply because 1289 Lori»J. BalalasandAnotherv.Republic
(1987)applicant No. 2 has never had legitimate interest, envisaged by Article 146.2,inordertorenderthe recourse justiciable. In the circumstances thepresent recourse isdoomed to failure asthe decision under consideration lacksexecutory character. Assuming though, that the sub-judice decision is of an executory nature, I still hold the view that the present recourse cannotsucceed forthe following reasons: 5 Learned counsel for applicantssubmitted inhiswritten address thatapplicant No. 1 whoisaGreekNationalhasbecomea«native of Cyprus» according to the provisions of s. 2 of Cap. 105 as 10 amended byLaw2/72 havingbeen married toapplicant No.2,a Cypriot citizen, and therefore he could not be excluded from the Republic under s. 10 of Cap. 105. Learned counsel maintained that s. 2 of Law 2/72 should be interpreted tocomprise not only the alien wife of a husband who isa citizen of the Republicbut it 15 shouldbeextendedviceversatoanalienhusbandofawifewhois a citizen of the Republic, otherwise Law 2/72 -learned counsel submitted -should beheldunconstitutional inthisrespect. Asubmission tothe same effect wasanswered inasimilar case bythe learned PresidentofthisCourt;itisthecaseofKarahotasv. 20 Republic
(1986)3 C.L.R.501 and the relevant part with whichI fully agreeand Iadopt forthepurposesofthepresent recourseis atpages505 (lines30-38and 506 (lines1-10). Itreadsas follows: «As a matter of fact the applicant has been married to a 25 Cypriot citizen but the definition of a 'native of Cyprus' comprises only a wife,and notalsothe husband, ofa citizen ofCyprusand,therefore, theapplicantcannotberegardedas a 'native of Cyprus'. Ithasbeen contended bycounselfortheapplicantthatthe 30 said definition isunconstitutional as being discriminatory on the ground ofsexand,consequently, contrarytoArticle28of theConstitution;but,evenifIwouldupholdthiscontention as correct -and Ido notpronounce inthisrespect in any waythis could not have led to the applicant being found to be a 35 'native of Cyprus' but only to the unconstitutionality, and, consequently, the nullity, of the legislative provision in question as a whole (see, inter alia, Santis v. The Republic,
(1983)3 C.L.R. 419), because its allegedly unconstitutional 1290 3C.L.R. 5 Balalas andAnotherv.Republic L o r UJ . part cannot be severed from the rest of it (as in Papaxenophontos v. The Republic,
(1982)3 C.L.R. 1037). Norisitapre-Constitution provision which might have been modified byvirtueofArticle188,4oftheConstitutioninorder tobebroughtintoaccord'"ithit.» Concluding Ifeel thatitmustbestatedthatinInternationalLaw the reception of aliensbyaState isamatterof discretion. 10 15 «It is uncontroversial that every State has absolute discretion to refuse the admission of foreigners» (SchwarzenbergeronInternationalLaw3rded.VolIp.360). «Thereception ofaliensisamatter of discretion, and every State is by reason of its territorial supremacy competent to exclude aliens from the whole, or any part, of its territory» (Oppenheim's International Law 8th ed.Vol.I.pp 675,676, para 314, and Musgrove v. Chun Teeong Toy [1891] A.C. 272). Inthe resultpresent recoursefailsandisaccordingly dismissed. Lettherebe no orderastocosts. Recourse dismissed. No order astocosts. 20 1291