clr/1988/1988_3_1565.pdf

(1985)3C.L.R.54andRossidesv.TheRepublic

(1984)3 C.L.R. 1482onthegroundthatinMatsasandRossidesthevisagrantedtotheref ,* spectiveapplicantwasasavisitorforpurposesofstudies. .. 15 ν· Casesreferredto: n. * Subjudiceannulled. - Noorderastocosts. - -,·' .' ς ; , \ . . Matsasv. TheRepublic

(1985)3C.L.R.54; 1565 ,. * Lakatamitis v.Republic

(1988)Rossidesv. TheRepublic

(1984)3C.L.R. 1482; Michaelv.TheRepublic

(1986)3CX.R.2067; Kourtellasv. TheMinisterofFinance

(1986)3CX.R.

1. Recourse. Recourse against therefusal of therespondent toallow applicanttoimportadutyfree motor-vehicle asarepatriated Cypriot 5 AS. Angelides, for the applicant. A. Vassiliades, for the respondent. Cur. adv. vult. SAVVIDES J.read the following judgment. Theapplicant by 10 thepresentrecoursechallengesthedecision oftherespondentDirectorofCustoms andExcise nottoaccede toapplicant's applicationtoimport amotor-vehiclefreeofdutyundertheprovisionsof sub-heading 19 of item 0.1 of the Fourth Schedule to the Customs and Excise Duties Law, 1978 which was communicated to 15 applicant by letters dated 16th February, 1987 and 6th March,
2. Applicant comes from Famagusta, Cyprus and on 4th July , 1976heleft with hisfamily forEnglandforpermanent settlement abroad. His mother is a British subject and holder of a British 20 passport. InJune, 1976heobtained avisa for settlement inEngland,accompanying his motherasit appearson thevisaissuedby the British High Commission in Cyprus and when he arrived in England on4th July, 1976he was given leave toenterU.K. for anindefinite period. According totheaffidavit of theapplicant theobject ofhisimmigration toEngland washispermanent setdement there.Hetook employment in England and with astudy grant which was given 1566 25 3C.L.R. Lakatarnitisv.Republic SavyidesJ. tohimhewasatthesametimestudying.Hewaspayinghisnationalinsuranceduring(theperiodofhisemploymentandheacquiredtheBritishnationality.' 1 . Therespondentbytheiroppositionadmittedthattheapplicant duringtheperiodofhisstudieswasworkingperiodically inEnglandandafterhecompletedhisstudiesandbecameanarchitecthe wasworkingonapermanentbasis.HereturnedtoCyprusonthe 21stAugust, 1986andon the 15th October, 1986hesubmitted anapplication for theimportationofaMercedes250DcardutylO freewhichhehadalreadyorderedonthe22ndMay,
3. 5 Onthe 16thFebruary, 1987therespondentsinformed theapplicantthatitwasnotfound possibletoaccedetohisapplication. Thecontentsofsuchletterreadasfollows: 15 "Irefertotheabovesubject andregrettoinform youthatit was not found possible to accede to your request on the groundsthatyourlasttenyears'stayintheU.K.includeaperiod of studieswhichisnotacceptedaspermanent settlement abroad." Applicant throughhisadvocateaddressedarequesttothere20 spondentsforre-examinationofthecaseafter settingoutthefacts ofthecaseandallrelevantdocumentsandalsoacertificate from theMinisterofDefencedated22ndDecember, 1976totheeffect that the applicant was exempted from military service on.the groundofpermanentresidenceabroad.Onthe6thMarch,1987, 25 respondentsreplied thatthedecision and groundsalreadycommunicatedintheletterdated 16thFebruary,1987couldnotbereconsidered. ' the questionwhichposesforconsiderationiswhethertheapplicant inthepresentcasesatisfied theprovisionsoftherelevant 30 orderandparticularly tenyearscontinuouspermanentresidence abroadandrepatriationwithintentiontopermanentlysettleinCy- .1567 Savvides J. Lakatamitis v.Republic

(1988)Cousel for respondents inhisaddress sought torelyon thedecisions of Matsas v. The Republic

(1985)3 C.L.R. 54 and Rossides v.TheRepublic

(1984)3C.L.R. 1482totheeffect thatresidence in a certain country as astudent for educational purposes howeverlongdoesnotamounttopermanent settlement abroad. 5 Counsel for applicant, on theother hand, submitted that Matsas and Rossides (supra) should be distinguished from the presentcasein thatin both theaforesaid casesthepermit granted totheapplicants was of a temporary naturefor studies and not as inthepresent caseforpermanent settlementasitappearsfromthe JQ visa of entry on thepassport of the applicant. That in all the circumstances therespondens misinterpreted and misconceived the dicta in the two cases and misapplied them to the facts of the presentcase. Itisanundisputedfactinthepresentcasethattheapplicantleft j ^ Cyprus inJuly, 1976with intention ofpermanently settlingin the U.K.This fact issupported bytheentry in hispassport in which accordig tothe visa issued tohimby theBritish Comissioner his entryinEngland wasfor permanent settlement andthathewasallowed toresidein England indefinitely. This appears also in the 20 affidavit of the Applicant on the contents of which he was not asked tobecross-examined. Whilst inEngland for acertain period he was both partly employed and studying at the same time under a grant from the British Government. When he completed his studies he remained in England and wasregularly employed theretill thetimeofhisreturn toCyprusin 1986. Whatamountstopermanent settlementabroad hasbeendecided in thecases ofMatsas v.TheRepublic (supra),Michaelv.The Republic

(1986)3 C.L.R. 2067 andKourtellas v. The Minister of Finance

(1986)3 C.L.R. 2079.In Matsas (supra) A.Loizou, 3 0 J., as he then was,had this tosayat p.61: "Tomymind permanent settlementcarries withitthenotion of arealorpermanent home andshould bedistinguished from thenotion ofordinaryresidence". 1568 3 C.L.R. Lakatamitis v.Republic Savvides J. In Michael (supra) Stylianides, J. said the folllowing,at p., 2075: 5 10 15 20 25 30 "'Permanent establishment' is not synonymous to 'residence'.Residence aloneisnot sufficient. Permanent establishmentindicatesaquality ofresidencerather than itslength.The duration of theresidence, i.e. regular physical presence in a place,isonly oneof anumberofrelevant factors. An element of intention toreside andestablish isrequired. Evidenceofintention may beimportant where theperiod orperiods of residence are suchastopoint toboth directions. Itis not possible for a person tobepermanently settled in the Republic and in anothercountry. The intention of permanently settlingmay be gatheredfromtheconduct and actionconsistent with such setdement.Though permanent settlementcannot beassimilated to domicile, it is akin to it and pronouncemets on domicile are veryrelevant and helpful." The conclusion of intention to reside and establish in the present case appears both in the relevant entries in applicant's passport as already mentioned and alsoin thefacts stated by hin i° hisaffidavit. Thepresentcaseisdistinguishable from thecases in which it was found that residence abroad for the purposes of studiesdoes not amount topermanent settlement abroad because inallothercases theentryof thepersons concerned in the foreign country wasmadeon visamentioning that theobject of the entry was as a visitor for purposes of studies and not for permanent settlement asinthepresentcase. In thepresentcase having given dueconsideration toallmaterial before me Ihavecome totheconclusion that thedecision of therespondents waswrong andwasbased on a misinterpretation of other cases on the matter in which theentry of the applicants was of a temporary nature for purposes of studies and not for permanent settlement asinthepresentcase. Fortheaforesaid reasons thesubjudicedecision hastobean1569 SawidesJ. Lakatamitisv.Republic

(1988)nulledandisherebyannulledbutinthecircumstancesImakeno orderastocosts. Subjudicedecisionannulled. Noorderastocosts. 1570