clr/1989/1989_3A_21.pdf

(2).sub-heading 19ol Class01 of the Fourth Schedule and Order 1SS/S2 of the Councilof Ministers — ''Continuous" permanent establishment abroad for a period of 10 years — Meaning of continuous"— Prolongedstavm Cyprusduringcertainycars\\uhinthe 10yearperiod— Effect. Executory act— Conlimiaion act— .\e\\ inquiry — Re-examining case. taking into consideration additional elements, but reaching same conclusion— .\c\crthelcss thenew decisionisexecutory Tlie applicant went and established her permanent residence in Englandback in 1951 Herfirstmarriagebrokein 1976 Sheremarriedin Cyprus in 1979 On 19 2S6she submitted an application loi ddut\ free importation ofamotor\ehicleunderthelegislationreferredto in thefirst of the abo\e Headnotes The applicationwas dismissed because the apphcant had stayed in Cyprus for atotal of 245 davs in 19S2and204 days in 19S1 The applicantprotested,alleging that the reason for her prolonged Marangou v. Republic &Another

(1989)stay in Cyprus during 19SO and 19S1wasdue 10the fact that her second husband was facing criminal charges and needed her moral support. However, she continued her business in England with the assistance of her children. 5 The respondent examined the objection but. having taken into consideration the additional elements submitted by the applicant, as aforesaid, he once again dismissed the application on theground that the required by the said legal provisions permanent establishment abroad wasnot continuous. 10 Hence this recourse. Held, annulling the subjudicc decision: 15

(1)It is executory, because there had been a new inquiry. The fact that the result was the same isimmaterial.

(2)"Continuous" means uninterrupted. A person cannot establish himself simultaneously permanently in more than one country. A 2 0 person abandons her permanent establishment in a Country by ceasing to reside there and byceasing to intend to reside there.

(3)On the facts of this case (explanation given for applicant's presence in Cyprus in l9SOand 19S1.continuation of her business in England. 25 continuation of payments of social insurance contributions in that country) it was not reasonably open to the Respondent to reach the conclusion that applicant's establishment abroad was interrupted in l9S0and 19SL 30 Subjudicc decisionannulled..NoOrder as to costs. Casesreferred to: 35 Koiokassides v.Republic

(1965)3CLR.

1. Varnavav.Republic(DistrictOfficerNicosia)andAnother (196S)3C.L.R.
2. 40 Kyprianidcs v.Republic

(7982)3 C.L.R.

1. ?? 3 C.L.R. Marangou v. Republic & Another Spyrou \ Republic(19S3) 3C.L.R.
2. Kampouns v.EducationalService Commission(19SS) 3C.L.R.
3. Michaelv.Republic(19S6) 3C.L.R. 2067, Matsasv.Republic(19S5) 3C.L.R.
4. Constantinides v.Republic(MinisterofFinance) and/orAnother (19SS) 3 C.L.R.
5. Matsasv. RepublicoiCyprus(PublicServiceCommission)(19S8)3 C.L.R. !44S. Recourse. Recourse against the rejection of applicant's application for exemption from import duty for amotor vehicle. J.Ma\ronicolas. for the Applicant. .
6. Vassiliades. Counsel of the Republic B". for the Respondent. Cur. adv. vu/r. STYLIANIDES. J. read the following judgment. The applicant by means of this recourse seeks the annulment of the decision of theRespondent No.2 -Director of the Department of Customs, whereby her application for exemption from import duty for amotor vehiclewas rejected. The applicant was born in
7. At youthful age she got married and immigrated with her husband, as early as 1st February. 1951.to England. The couple acquired two children. They established in England, where byhardlabour they created businesses. She.asfrom 1962.ran on her own a ladies fashion under the name "Soulla Fashion". The first marriage broke down and in 1976 was dissolved. In 1979 she met Sawas Marangou.whomshemarriedinCypruson the27th December.
8. " Stylianides. J. Marangou v.Republic &Another

(1989)Onthe 19th February. 19S6.shesubmitted an application for exemption from duty for the importation of a car. under the provisions of the Order of theCouncil of Ministers made under section 11

(2)oftheCustoms and Excise Duty Law. 197S. (Law No. 1S/7SJ asamended. On the saidapplication shewrote that 5 she returned to Cyprus for permanent settlement on 25th January. 19S

1. She furnished the Respondents with the documents asked for. her British passport, certificate of the secondmarriage,thecertificate from theMigration Department of the Ministry of Interior, a letter - certificate from the 10 Department of Health and Social Security of the United Kingdom showingthe detailsofhercontributions to the British National Insurance Scheme from 26th February. 1951 until the year 19S5-19S6 inclusive. 15 On 10th September. 19S6.she imported temporarily anewmotor -Renault R25V6saloon car.whichwasconnected by the Respondents with her above -said application. On 13th May. 19S
2. she signed a statement that she had 20 never to that date worked in Cyprus. The examination of her passports revealed that in 19S0she stayedinthiscountry for 245daysandin 19S1 for204days.Due to thisfact theRespondent No.2rejectedherapplication, onthe 25 ground that "her permanent settlement abroad was not continuous". This decision was communicated to her bv letter dated 4th July.19S
3. On 14th July.
4. apparently soon after she received the 30 negative decision, she addressed to the Respondent No. 2 a petition asking him to revise his such decision and gave explanation of her long stays in Cyprus during the years 1980 and 1981.Shementioned,interalia,that hersecondhusbandwas a member oftheCommittee ofthe Co-operative Central Bank: 35 that a crisis broke down in the co-operative movement in Cyprus: the members of the Committee of the Co-operative Central Bank,includingherhusband,wereprosecuted. Pending that criminalcase,herhusband wasby Authority deprived ofhis passport facilities and during the hard days of suffering she was 40 going and coming to London. In London she was carrying on herbusinesswiththeassistance ofherchildren andshehadto be 24 3 C.L.R. Marangou v. Republic &Another Stylianides, J. inCyprus,whereher husband was facing criminal charges. The presence of a newly married wife \\asnecessary.This residence in Cyprus was only temporary". She never, during that period. decided to stay in Cyprus. The couple, always, intended to 5 establish in London, but she had to stay for long periods in Cyprusinsupport ofherhusband duringthosedifficult daysand. so soon as the passport was given back to her husband, the couple left for London. 10 Thereupon the case of this applicant wasreconsidered and a decision was reached on 22nd July. 1987.communicated to her byletter dated 27th July, 1987,the material pan of which reads asfollows:- 15 "I inform you that I reconsidered your request in the lightof the additional elements you furnished me but unfortunately I cannot approve you as a Cypriot who resettled under ... becausebefore yourresettlement youdidnot havecontinuous permanent settlement abroad for atleast ten vears." 20 Hence this recourse. The Respondents in the opposition raise the preliminary objection that the decision challenged by this recourse is 25 confirmatory ofthe decision communicated to the applicant on 4th July. 19S7and.therefore, isnot justiciable and the recourse isout of time. It is well settled that a confirmatory·' act lacks executor)'' 30 nature,and.therefore, itcannot bemadethesubject-matter ofa recourse under Article 146of the Constitution. A confirmatory act or decision isan act or decision of the administration which repeats thecontentsofapreviousexecutoryactandsignifies the adherence of the administration to a course already adopted; it 35 isnot in itself executorybecause it doesnot itself determine the legal position of an individual case, and this is the reason it cannot be the subject of arecourse. An act whichcontains aconfirmation ofan earlier one,may. 40 however, be executory and.therefore, subject to a recourse for annulment, if it has been made after a new inquiry into the matter - {IS'icos Kolokassides v. The Republic of Cyprus 25 Stylianides.J. Marangou v. Republic&Another

(1989)through the Minister of Finance

(1965)3 C.L.R. 542; Christakis L. Varnava v. Republic (District Officer ISlcosia) and Another (196S) 3 C.L.R. 566: Kyprianides v. Republic

(1982)3 C.L.R. 611: Spyrou v. Republic (19S3) 3 C.L.R. 354: Ioannis Kampouris v. The Educational Service 5 Commission

(1988)3C.L.R.2235). When does a new inquiry exist is a question of fact. In general, it is considered to be a new· inquiry, the taking into consideration of new substantive legal or factual elements. 10 Thereisanewinquiry particularlywhen,before theissueof the subsequent act. an investigation takes place of newly emerged elements or. although pre-existing, were unknown at the time and are taken into consideration in addition to others for the first time. 15 Inthepresent case,not onlythenewelements,thereason for her stay in Cyprus in 19S0 and 1981.were placed before the Administration by the letter of 14th July. 1987.but in the letter of 27th July. 19S7.the Administration states expressly that the 20 additional elements which were furnished bythe applicant were taken into consideration in the re-examination of her application. This satisfies the requirement for a new inquiry. The subjudice decision expresses thewill of the Administration to adliere to the previous decision. Nevertheless, it was taken 25 after a new inquiry and it is a new executory act subject to review by this Court. The Order on which the applicant relied for exemption was judicially considered in a number of cases by this Court. 30 A Cypriot is entitled to exemption if the following requirements are satisfied:(a)Permanent settlement abroad for at least ten continuous 35 years; (b)Return and permanent establishment intheRepublic;and (c)Importation within reasonable time from the date of 40 arrival in the discretion ofthe Director. 26 3 C.L.R. Marangou v. Republic & Another Stylianides. J. There is no dispute that the applicant satisfies fully requirements (b) and (c). It is common ground thatthe applicant settled in Englandin 1951 and that she returned for settlement in Cyprus on 25th January. 1986. It is. also,undisputedfact thatin 19S0 she spent 245 days out of 366 in Cyprus and in 19S1 she stayed 204 days in Cyprus. Those periods were notcontinuous. In Michael v. The Republic

(1986)3 C.L.R.

1. it was said at p.2075:'"Permanent establishment' is not synonymous to •residence'. Residence alone is not sufficient. Permanent establishment indicates a quality of residence rather than its length. The duration of the residence, i.e. regular physical presence in a place, is only one of a number of relevant factors. An element of intention to reside and establish is required. Evidence of intentionmay be important where the period or periods of residence are such as to point to both directions. It is not possible for a person to be permanently settled in the Republic andin anothercountry. Theintention of permanently settling may be gathered from the conduct andaction consistent with such settlement." This passage was adopted in a number of cases thereafter. You cannottake upapermanent residence on any particular point of time, unless at the time you take up residence you intend that it should bepermanent. In Matsas v. Republic U9S5) 3 C.L.R.
2. it was said at p. 61:'*To my mind permanent settlement carries with it the notion of a real or permanent home and should be distinguished from the notion of ordinary residence." The wording of the Order is: ".... διάσυνεχή περίοδοντου­ λάχιστον 10 ετών επανέρχο\ταικαι εγχαθίσταλταιμονίμω; εν τη Δημοκρατία..." 27 Stylianides, J. Marangou v. Republic & Another

(1989)"Συνεχής" means "αδιάκοπο;, αδιάλειπτο;" - (Αντιλεξικόν ή Ονομαοτικόν τη; Νεοελληνική; Γλώσσης. Θ. Βοσταντζόγλου.2ndedition,paragraph87). "Continuous*'means "uninterrupted, intime,unbroken". 5 "Continuous" is a qualification, a characteristic of the permanentestablishment abroad.Apersoncannot permanently settle in more than one country at the same time.A physical residence may beeitherpermanentestablishment ortemporary 10 residence. The applicant continuously from 1951 until theend of 1986. including 19S0 and 19SI paid her contributions to theNational InsuranceSchemeinEngland. She,continuously,including 19S0 15 and 1981, ran her business in England. Her second husband. shortly after themarriage,underwentanordealinthiscountry, bybeingprosecutedinconnection withmaladministrationintheCo­ operative CentralBank.Hispassport facilities weretakenbythe Authorities andhecouldnottravel outof thecountry. 20 A person abandons the permanent establishment in a country by ceasing to reside there andby ceasing to intendto reside therepermanentlv orindefinitely, andnot otherwise. 25 Theexplanation given bytheapplicant,though, isoneofthe elements that may be taken into consideration in the determination of whetherherpermanentsettlement abroad was interrupted, is supported by all the other surrounding circumstances. 30 In Revisional Jurisdiction Appeal No.572 - Christoforos Constantinides v. The Republic of Cyprus, through the Minister of Finance and/orThe Director of Customs & Excise-(\9&S)S C.L.R. 2375.PetrosMatsas v. TheRepublic 35 of Cyprus, through the PublicService Commission

(1988)3 C.L.R. 1448. it was said that this Court, in determining a recourse,doesnotinterfere withthesubjectiveevaluation ofthe facts by the administration,but only interferes toreview tothe extent thatthefindings of fact aretaintedby amisconception of 40 fact, or law, or the administration has exceeded the extreme limits of its discretionary power inthesensethatitsfindings are 28 3 C.L.R. Marangou v. Republic &Another Stylianides. J. not reasonably open to it. on the consideration of the material before it in its totality. Thequestion of"continuous"'permanent settlement required legal interpretation, evaluation of the facts and application of the Law to these facts. The finding of the Respondent No.2that the stay in Cyprus in 1980and 1981 of the applicant was such as to interrupt the applicant's permanent settlement in England, was not reasonably open tohim. In the circumstances of the present case, I find that the requirements for entitlement to adutyfree car.underthe Order of the Council of Ministers are satisfied. In the result therecoursesucceeds. Thesubjudicedecisionis declared null andvoid andofnoeffect under Article 146.4(b)of the Constitution. Let there beno order astocosts. Subjudice decisionannulled. No orderastocosts.