clr/1987/1987_3_1701.pdf

(1986)3 CLR 501) adopted —Question of constitutionality left open The applicant,who ismamed toacitizenoftheRepublic,afterhaving been earlier on granted a temporary resident's permit, applied on the 1 1283 foritsrenewal Therenewal, however, was refusedandasaresultthe 1701 t, Karallotas v. Republic

(1987)applicant was placed on the «stop list» and was prevented from entenng Cyprus on21 2 83 Thereasonoftherefusal asemanatingfromthematerialplacedbeforethe Court, was that the applicant a citizen of Greece was considered by the appropnate authontiestobe a«security nsk» 5 It is an undisputed fact that the appellant was never formally made a prohibited immigrant under section 6 of the Aliens and Immigration Law, Cap 105 This is an appeal from the judgment dismissing appellant s recourse wherebythevalidityoftherefusaltoallowhisentryinCypruswaschallenged 10 Held, dismissing theappeal (A)PerMalachtos, J, Demetnades, Sawides, Pikisand Koums, JJ concumng

(1)Therespondent Authontieshadthe nght under section 10of Cap 105torefuseentrytotheappellant without making himaprohibitedimmigrant undersection6ofthesamelaw Section10isfully compatible with Articles 14and32 of theConstitution 15

(2)The submission of counsel for the appellant that thefinding ofthe tnal Judge, that the sub judice decision was taken because applicant was considered asasecunty nsk,waswrong, cannot be accepted The fileof the administration justifies theaforesaid finding

(3)The applicant could not have been excluded from the Republic, if he couldbefoundtobea«nativeofCyprus»inaccordancewiths 2ofCap 105 assuch sectionwas amendedby Law 2/72 But thedefinition of a-native of Cyprus- compnsesonly thewife, not the husband of acitizenof Cyprus 20 The submission ot appellant's counsel that the term «native of Cyprus» shouldbegivenawide interpretationsoastoincludethehusbandofanative 2 5 ofCypruscannotbeaccepted,becausewearenot facedherewithasituation where the wording of asection of alaw isnot clear Inthe casein hand the wordingof section2(b)of theamending law isclearand unambiguous

(4)As regards the issue of constitutionality, namely whether section 2 of Law 2/1972 isinconsistent with or repugnant to Art 28 of the Constitution, theapproach of the tnalJudgewas correct 30 (B)PerPikis,J. Koums, J concumng {1)Thenghttorefuseentrytoaliens -is,anincident of thesovereignty of everyState,itcannot beabndgedexcept by abinding treaty or convention Itisanght recognizedininternational law andsafeguardedasanessentialattnbuteofthetemtonalintegntyoftheState The only nght of an alien applying for entry is to have his application considered in good faith If that isdone, the Court will not inquire into the reasonsof refusalof entry 35

(2)It issettledthat pronouncements on the constitutionality of legislation areonly made if indispensable for thedeterminationof acase 1702 40 3 C.L.R. Karaliota* v. Republic In thiscaseandasTnantafyllidesP observed atfirstinstance declaration of the lawasunconstitutional would beof no assistance to thecase of the applicant Appeal dismissed 5 Casesreferredto Croxfordv UniversalInsurance Co [1936]2 K B 253. Amanda Marga ν Republic

(1985)3 C L R 2583 Suleiman ν Republic

(1987)3 C L R 227 10 The Board forRegulation of Architects andCivil Engineers ν Kynakides (1966J3CLR 640 Appeal. Appeal against the judgment of the President of the Supreme Court of Cyprus (Tnantafylltdes, P.) given on the 11th January, 1986 (Revisional Junsdiction Case No 188/85)* whereby 15 appellant's recourse against the refusal of the respondentsto allow applicant toenterthe Republic of Cyprus was dismissed L Papaphihppou, forthe appellant D Papadopoullou (Mrs.),forthe respondents. Cur adv.vull 20 Thefollowingjudgments were read: MALACHTOSJ . Thisisanappeal by theapplicantin Recour* No. 188/85 against the judgment of ajudge ofthisCourtwhere his claim to declare null and void the decision of the respondent authority to refuse on 21.12.84 entry of the appellant into the 25 Republic of Cyprus, was dismissed. The relevant facts of the case, as they appear in the documentary evidence adduced and as found by the trial judge, are the following: The appellant, who isa Greeksubject, was bom inSalonika on 30 25.11.55andon22.3.75 wentthrough acivilmarriageinLondon to a Greek Orthodox girl,native of the Republic of Cyprus. On 12.9.81 the appellant, who is the holder of a Greek passport, entered the Republic for the first time accompanied by hiswife and theirinfant child and was allowed tostay temporarily *Reportedin{1986)3 CLR501 1703 Malachtos J. Karallotas v.Republic

(1987)asavisitorup to8 8 82,when heleft withhisfamily On 15 10 83 hereturned toCyprusaloneandatLamacaairportanentrypermit wasgranted tohimtostayasatemporaryvisitorforapenod oftwo months On 1 12 83hesubmitted anapplication tothe authonties for renewal ofhispermitbutbyletter dated 2 4 84 hisapplication 5 wasrefused and so he left on 25 4 84 It should be noted here that it is an undisputed fact that the appellant was never formally made aprohibited immigrant under section 6of theAliensand Immigration Law, Cap 105,ashe was not served by the Migration Officer with the relevant notice as 10 provided by Regulation 19 of the Aliens and Immigration Regulations of 1972 On 2 5 84, however, the appellant's name was placed on the «Stop List» as a person to whom entry into the Republic was prohibited On 21 12 84 the appellant amved at the Lamaca 15 airport where he was not allowed to enter into the Republic He was there and then told that hisname was on the «Stop List»and so he left on the same day The grounds of appeal as argued bycounsel for the appellant, may be summansed as follows 20 1 thatthedecision toplace theappellant onthe«StopList»was not taken inaccordance with the law, 2. that there isnothinginthefile ofthe casetojustify the finding of the tnal judge that the appellant was not allowed to enter into the Republic because hewas considered as asecunty nsk, and 25 3 that wide interpretation should be given to the definition •native of Cyprus» contained in section 2 of the Aliens and Immigration Law, Cap 105,asamended bysection 2of Law2of 1972 so as to include not only the alien wife but also the alien husband of a citizen of the Republic of Cyprus If a literal 30 interpretation is given to the said definition, then this amending section should be declared unconstitutional as offending Article 28 2 of the Constitution, which provides for equality of sexes Asregards the first ground of appeal, counsel for the appellant putforward thesameargumentsputforward before thetnaljudge, 35 thatsincetheprovisionsofsection6oftheLawandRegulation 19 were not followed in order to make the appellant a prohibited immigrant, the placing him on the «Stop List» was illegal 1704 3 C.L.R. Karallotas v.Republic MalachtosJ. Consequently,thedecisiontorefusetotheappellantentryintothe Republic, should be declared nulland void. 5 The short answer to this argument of counsel is that the trial judge decided that the appellant was refused entry by virtue of section 10 of the Law which provides that an alien who isnot a prohibited immigrant and who may be the holder of a passport bearingthe relevant visa,shall nothave an absolute right toenter the Republicand, inany case,maybe refused entry. The relevant part of thejudgment of the trialjudge,with which 10 Iaminfullagreement, ispublishedin

(1986)3C.L.R. 501, atpage 504and readsas follows: «Undersection 10ofCap. 105theapplicant,beinganalien, could be lawfully refused entry into Cyprus because, as provided therein, an alien does not have an absoluterightof 15 entry intoCyprus. 20 25 30 Ofcourse,Cap.105isaLawwhichexistedpriorto,andhas been continued in force after, the 16th August, 1960, when CyprusbecameanindependentRepublicand, consequently, it isapplicable subject to the provisions of Article 188 of the Constitution (see, inter alia, Georghiou (No. 2) v. The Republic,

(1968)3C.L.R.411).Cap.105wasamended, after 1960, by the Aliens and Immigration (Amendment) Law, 1972 (Law 2/72) and by the Aliens and Immigration (Amendment) Law, 1976 (Law54/76). Article 14of the Constitution providesthat onlycitizensof the Republic cannot, under any circumstances, be banished or excluded from it; and Article 32 of the Constitution providesthattheRepublicisnotprecluded from regulatingby law any matter relating to aliens in accordance with International Law. In my opinion, section 10 of Cap. 105 is a statutory provision which isfully consistent with Articles 14 and 32of the Constitution. 35 According to the relevant principles of International Law the reception of aliensbyaStateisamatterofdiscretion:and everyStateisbyreason ofitsterritorialsupremacy competent to exclude aliens from its territory (see Oppenheim's International Law,8thed.vol.1.pp.675,676, para.314,and Murgrovev. Chum TeeongToy, [1891]AC. 272)». 1705 Malachtos J. Karallotas v.Republic

(1987)So, the respondent authorities had therightunder the existing legislation to refuse entry to the appellant without making him a prohibited immigrant. Asregardsthesecond ground ofappeal,counselsubmitted that the application of the appellant of 1.12.83, for renewal of his 5 permit to stay as a temporary visitor was refused because during hisstaywasa guestofacertainjournalist.Therelevantpart ofthe judgment of the trialjudge appears atpage 506of the report and reads as follows: «Asit appears from the material which was placed before 10 me bycounsel fortherespondents the applicant's temporary resident's permit wasnot renewed, and hewasrefused entry into Cyprus, because he was considered by the appropriate authorities of the Republic tobe asecurityrisk.Ina matterof this nature the Administration has very wide discretionary 15 powers,theexerciseofwhichcannotbeinterfered withbythis CourtifitiswithinthelimitslaiddownbytheConstitution and the relevant legislation; and, inthisrespect, itmust be borne in mind, too, that this Court cannot interfere with policy decisions of the Administration and substitute its own 20 discretion in the place of that of the organ of the Republic concerned (see,inthisconnection, interalia,Sawidou v.The Republic,

(1970)3 C.L.R.118,the Voulpioticase,supra, and Pemaros v. The Republic

(1975)3 C.L.R.175).» ' Irrespective, however, of the fact that the discretionary powers 25 of the administration authorities toaccept alienson their territory areverywideandtheyarenotbound togiveanyreasonsastowhy an alien isrefused entry for security reasons, nevertheless, in the present proceedings the file of the case was made available for inspection before the trial Court. Having gone through thisfile it 30 was made clear that the reason why the appellant was refused entry into the Republic was for security reasons and not because hewasaguest ofa certainjournalistduringhispreviousstay.This fact wasinserted by himinhisapplication form for renewal of his permit in answer to the question asto hismeansof maintenance. 35 Onthatform thereisalsoanotebythePolicewhereitisstatedthat the applicant is characterised as a fanatic anarchist. Also in the relevant letter of 2.5.84, by the Chief Immigration Officer to the officer inchargeoftheImmigrationOfficetoplacetheappellant's nameonthe«StopList»,itisstatedthatheshouldnotbeallowed 40 toenterCyprusforsecurityreasons. 1706 3 C.L.R. Karallotasv.Republic Malachtos J. Thisground ofappeal, therefore, also fails. 5 Finally, we come to the third and last ground of appeal where counsel submitted that the term «native of Cyprus» in subsection (b)ofsection 2 ofCap. 105,asamended bysection 2 ofLaw2of 1972,shouldbe givenawideinterpretation soastocoverthealien husband ofa wife native ofCyprus. Thisamending section reads as follows: «2.The definition insubsection 1of section 2 of the basic law, 'native of Cyprus' isreplaced bythe following: 10 'Native of Cyprus' means(a)citizen of Cyprus; (b)alien wife ofa citizen of the Republic notdivorced from her husband byvirtue of ajudgment of the appropriate court and residingwith him fora period notlessthan one year; 15 20 Provided that willbeconsidered asa 'nativeofCyprus'analien wife of a citizen of the Republic who lived with him for a shorter period of one year ifthe Chief Immigration officer would, under the special circumstances of any particular case, consider this reasonable; (c) (d) ». The trial Judge on this issue had thisto say at page 505 of the record: «Of course, the applicant could not have been excluded from 25 the Republic undersection 10ofCap. 105ifhecould befound to be a 'native ofCyprus',inaccordance withsection 2ofCap. 105, as amended by section 2 of Law 2/72. As a matter of fact, the applicanthasbeenmarriedtoaCypriotcitizenbutthedefinitionof a 'native of Cyprus' comprises only a wife, and not also the 30 husband, of a citizen of Cyprus and, therefore, the applicant cannot be regarded asa 'native of Cyprus'. Ithasbeen contended bycounsel forthe applicant thatthesaid definition is unconstitutional as being discriminatory on the ground of sex and, consequently, contrary to Article 28 of the 35 Constitution;but,even ifIwould upholdthiscontention ascorrect -and Idonotpronounceinthisrespectinanyway-thiscould not have led to the applicant being found to be a 'native of Cyprus', 1707 Malachtoa J. Karallotasv. Republic

(1987)butonly tothe unconstitutionality,and,consequently, thenullity, of the legislative provision in question as a whole (see, interaha, Santisv 77ie/?epuW/c,

(1983)3C LR 419),because its allegedly unconstitutional part cannot be severed from the rest of it (asin Papaxenophontos ν TheRepublic,

(1982)3 CLR 1037) Noris 5 itapre-Constitution provision whichmighthave beenmodified by virtue of Article 188

(4)of the Constitutionin order tobe brought into accord with it» I am of theviewthatthissubmission of counsel mustalso fail as here we are not faced with a situation where the wording of a 10 section of a law is not clear Inthe case in hand the wording of section 2(b)of theamendinglaw isclearandunambiguous In the case of Croxford ν Universal Insurance Co [1936] 2 ΚΒ 253 at page 281,itisstated that«where thewords of anactofParliament are clear, there is no room of applying any of the pnnciples of 15 interpretation which are merely presumptions in cases of ambiguity intheStatute» As regards the question of constitutionality of the amending section 2of Law 2 of 1972, which was left open by thetnalJudge, Ifully agree with hisapproachinthis matter 20 For all the above reasons Iwould dismiss the appeal with no Order as to costs DEMETRIADESJ I agree with thejudgmentjustdelivered by Mr JusticeMalachtos SAWIDES J Iagree with thejudgment just delivered by Mr JusticeMalachtos 25 PIKISJ..Iagree thattheappealshouldbedismissed Moreover, Iambroadly inagreementwiththereasonsgivenbyMalachtos,J , insupportof thejudgment Theadditionof these linesispnmanly intended to.make two points, (

1. a)indicate the breadth of the 30 discretion of the authonties of the Republic to refuse entry to aliens, and (
2. b)the absence of any compelling reasons to pronounce on the constitutionalityof the definition of «native of Cyprus», particularly theprovisions of para (
3. b)thereof confemng citizenship on the female spouse of a Cypnot,while withholding 35 the samenghtto amalespouse of a Cypnot female 1708 3 C.L.R. Karallotasv.Republic PUdsJ. With regard tothefirst,Ihadoccasiontoexaminethepowerand nature of thediscretion of theauthoritiesof theRepublicto refuse entry to an alien in two cases, Amanda Marga Ltd. v. Republic* and Suleiman v.Republic**. Therighttorefuse entry toaliens is, 5 as explained inbothjudgments, an incidentof thesovereignty of every State;asovereign right thatcannotbe abridged except bya binding treaty or convention. It is a right recognized in international law and safeguarded as an essential attribute ofthe territorialintegrity of theState.Theonlyrightacknowledged toan 10 alien applying for entry isto have his application considered in good faith. If that is done, the Court will not inquire into the reasons of refusal of entry forthat would, inanindirect way, compromise theprincipleof sovereignty andterritorialintegrityat issue.Afortiori theCourtwillnotqueryreasonsofsecurityofState, 15 the sole judge ofwhich in this respect is the Executive branchof Government. Coming tothe constitutionality of s. 2(
4. b)of the Aliens and Immigration Law, Cap.105,asamendedby Law2/72, resolution of the case does require us topronounceon theconstitutionality 20 of itsprovisions for asTriantafyllides, P.,observed atfirstinstance, declaration of thelaw as unconstitutional would be of no assistance to the case of the applicant. It is settled that pronouncements on the constitutionality of legislation are only made if indispensable for thedeterminationof a case***. 25 Therefore,nothingsaid inthisjudgmentshouldbe construedas a pronouncement on the constitutionality of the relevant provisions ofthe law or asprejudging the outcomeofany such issueshould itarise for determinationinany future case. KOURRISJ.: I am inagreement with theJudgmentof Pikis, J., 30 andfor thesame reasons Idismiss theappeal. Appeal dismissed. No orderas to costs. •

(1985)3C.L.R.2583. '•

(1987)3C.L.R.227. **"See, Inter alia. The Board for Registrationof Architects and Ctvti Engtneenν ChrtstodoulosKyrtekides

(1966)3CLR. 640 1709