(1988)1988November7 [PIKIS,J.] INTHEMATTER OFARTICLE 146 OFTHECONTITUTION ΤΠΊ ABDEL AZIZMOHAMED, Applicant, v. THEREPUBLICOFCYPRUS, THROUGH 1.THEMINISTEROFINTERIOR, 2. DIRECTOR-GENERAL,MINISTRY OFINTERIOR, 3.THEIMMIGRATIONOFFICER, Respondents. (CaseNo. 860/88). Provisional orders—Aliens—Expiration of applicant'spermitto stayin the country—Deportationmadeaftersuchexpiration—Cannotbesuspendedby aprovisionalorder,because, insuchacase, theorderwillbeaninstrument ofperpetuating anillegality—Moyo andAnother v. TheRepublic
(1988)3 CL.R. 1203 applied. 5 Thefactsof thiscasesufficiently appearintheJudgmentof theCourt. Recoursedismissed. Noorderastocosts. Casesrefenedto: MoyoandAnother v. TheRepublic
(1988)3CZ.R. 1203. 2072 *0 3 C.L.R. Monamed v.Republic Application for a provisional order. , .. f . • Application for aprovisional order staying applicant'sdeportationpending thefinal determination of therecourse filed against thedecision of therespondents todeport applicant. N.PapamiltiadouSyfor the applicant., - P.Clerides, for therespondents. v Cur. adv. vult. PIKIS J.'read the following judgment. This is an application of Titi Abdel Aziz Mohamed for a provisional order staying his deportation. The application is made in the cause of a recourse challengingadecision oftherespodentswhereby hewasdetained withaview tobeingdeported. Sincehisarrival inCyprus hewas christened to his marriage to Maria Onisiforou, a citizen,of the Republic.Achild born toMariawasrecognised after wedlock by the.applicant ashis own.They acquired another.child after their marriageand.presently Mariaisexpectingthemthird child. Istayedttheorderfor afew daysinordertoelicit thefactsrelevantftotheiapplication, primarily whetheranorderofdeportation hasbeen issued and such other facts relevant.to his statusin Cyprus. ' '" * ., The application was served:on the respondents. Counsel for theRepublicobjected tothe.issuanceoftheorder sought.Hesubmitted,that nothing in thenature of aflagrant illegality has been established before theCourt;-norwilltheapplicant suffer irreparabledamageiftheorderisrefused. . , Itisan undisputed fact that thepermit of theapplicant tostay in the Republic has expired. The inevitable inference is that his continued stayin thecountry is unauthorised. Seemingly theapplicant wasdeclared aprohibited immigrant after his conviction and sentence to a termof imprisonment on acharge of indecent 2073 Pikis J. Mohamed v.Republic
(1988)assault. In thecontention oftheapplicant, hewasdiscouraged by theAuthoritiesfrom makinganapplication for theextention ofhis permit. Sofar as may bediscerned from statements madeonbehalf of the applicant, an application tothatend wasmadecoincidentally with theinstitution ofthepresentproceedings. 5 Theapplication for aprovisionalordermustnecessarily bedismissed for the reason that the preservation of the status quo ' would not legitimise the stay of the applicant in the country. A provisional ordercannot bemadeaninstrument for the perpetuation of illegal stay in thecountry. Such action would amount toa 10 usurpation of administrativepowerbytheCourtstepping intothe administrative process. In similar circumstances, in Moyo and Another v. Republic
(1988)3 C.L.R. 1203 the Full Bench refused tocontemplate themakingof aprovisional order in circumstances where this would lead to theextension of illegal stay in 15 the country. Nouseful purpose would be served by repeating the principles espoused in the above case, either with regard to the prerequisites for the grant of aprovisional order, or the implications of suspending an orderof deportation where the applicant has no legal right to stay in the country. Those principles are 20 adopted and shall befollowed inthiscase.Theapplication of the ratioinMoyo, supra, leads inexorably tothedismissal of thisapplication. Wemaynote thatquestion markswereraised inMoyo respecting thelegitimacy of the interest of apartyimpugning adeporta- 25 tion order when hehasnolegalrighttostayin thecountry. I amnotunmoved bythefamily circumstancesof theapplicant or theplight of his family. All Ican say is that these are matters for consideration and evaluation by theImmigration Authorities. No doubt the Republic, if theorder of deportation is enforced, 30 will allow theapplicant toreturn tothecountry for thepurposeof prosecuting hisrecourse. In the result, the application is dismissed. No order as to costs. Application dismissed. Noorderas to costs' 2074 •"