(1989)1989March 15 [KOURRIS,J.] INTHE MATTER OF ARTICLE 146OFTHE CONSTITUTION NICOLAS MALAKOUNIDES, Applicant, v. THE REPUBLIC OF CYPRUS,THROUGH THE MINISTER OF FINANCE AND/OR ANOTHER, Respondents. (Case No.1070/87) Customs and Excise — Motor vehicles — Importation of, by repatriated Cypriots — The Customs and Excise Duties Law, 1978(Law 18/78), sub-heading 19 of item 0.1 of the Fourth Schedule — Permanent settlement abroad— Foreign countrygrantingtemporarypermits for a period of time prior to grantingpermit for permanent residence — 5 Whetherthetemporariness ofthepermit oftheforeigncountry couldbe taken into account, in the face of undisputedapplicant's intention to settlepermanently therein— Questiondeterminedinthe positive. The applicant intended to make England his permanent home. He 10 emigrated to England, but failed to obtain from the very beginning a'* permit by that country to stay permanently therein. The permit for permanent residence was eventually granted to the applicant. The applicant returned to Cyprus for permanent settlement. He applied for a duty free importation of a motor vehicle under the hereinabove 15 legislation. The application was dismissed on the ground that, notwithstanding that the applicant completed ten years residence in England,part ofitwasnotapermanent one,becausethatcountry didnot grant to the applicant from the very beginning a permit for permanent residence. Held, in dismissing therecourse,that thefindingbytherespondent as 328 20 3 C.L.R. Malakounides v.Republic &Another regards the issue of permanent settlement abroad for a continuous tenyear period (a necessary prerequisite for the benefit of a duty free importation of amotor vehicle)wasreasonably open to the respondent. 5 Recourse dismissed. No order as to costs. Cases referredto: 10 Razis v.Republic,
(1979)3C.L.R. 127, Rossidcsv.Republic
(1984)3C.L.R. 1482, Matsitsv.Republic
(1985)3 C.L.R. 54, 15 Ma\Tonichis v.Republic
(1985)3C.L.R. 2301, Constantinidesv.Republic
(1986)3 C.L.R. 882, 20 Ioannou v.Republic
(1986)3C.L.R. 1263, Schinisv.Republic
(1988)3 C.L.R. 2692, Ttofis v.Republic
(1988)3C.L.R. 1625, 25 Ellmav.Republic
(1988)3 CL.R. 2651. Recourse. 30 Recourse against the refusal of the respondents to allow applicanttoimportamotorvehiclefreeofdutyasarepatriated Cypriot. A. Haviaras,fortheApplicant. 35 D.PapadopouIIou(Mrs),Counsel oftheRepublicB,forthe Respondent. Cur. adv. vult 40 KOURRIS,J. read the following judgment. By the present recourse,applicantseeksadeclarationoftheCourtthattheact 329 Kourris, J. Malakounides v.Republic &Another
(1989)and/or decision of therespondentstorefuse tohimtoimporta motor vehiclefree of dutyinaccordancewiththeprovisionsof sub-heading 19 of item 0.1 of the Fourth Schedule to the Customs and Excise Duties Law(Law 18/78) is null andvoid andofnolegaleffect whatsoever. 5 On 1.7.1986, applicant submitted an application to the Customs and Excise Department seeking relief under subheading 19of Item 0.1ofthe Fourth Scheduleof Law 1S/7S on thegroundthat havingbeen aCvpriot,who,after apermanent 10 settlement abroad for acontinuous period of at least 10 years. returnedtoCyprusinordertosettlepermanently. The appropriate authority, after examining all the material before it in relation to applicant's application, decidedthat his 15 case doesnot fall within theprovisions ofthelawandrelevant regulations onthegroundthathisabsencefrom Cyprusdidnot constitute a permanent settlement abroad for a continuous period of at least 10years,andrejected the application of the applicant for theimportation ofhismotorcar, Mercedesmake, 20 No.SU517,free of duty. (Seeblue56andblue60of exhibit I which istheadministration file). Hencethepresentrecourse. Thematter isgovernedbytheExciseDutiesLaw 18/78s.11 andOrder 188/82publishedintheThirdSupplement,Pan IIof 25 the Official Gazette of the Republic of 11thJune, 1982,under notification 17/83. ThesaidOrder,insofarasrelevant,readsas follows:"Vehicles...imponed by Cypriots who after permanent 30 settlement abroad for a continuous period of at least 10 years, return and settle permanently in the Republic, provided that the importation is made within a reasonable time since their arrival according to the judgment of the Director. 35 The relief from import duty covers only one vehicle for every family." The point in issue is whether applicant settled abroad 40 permanentlyfor acontinuousperiodofatleast 10yearsbefore 1 hereturnedtosettlepermanently inCyprus. 330 3 C.L.R. Malakounides v. Republic &Another Kourris. J. The notion of permanent settlement abroad has been explained, inter alia, in the cases of Raxis v. The Republic
(1979)3C.L.R. 127; Rossides v.TheRepublic
(1984)3C.L.R. 1482at p. I486; Matsas v.TheRepublic
(1985)3C.L.R.54at 5 pp.58-62;Mavronichis v.TheRepublic
(1985)3C.L.R.2301; Constantinides v.TheRepublic
(1986)3 C.L.R.882;Ioannou v.TheRepublic
(1986)3C.L.R. 1263; and Theodoros Schinis v.TheRepublic (19SS) 3C.L.R.
- 10 Thesalient facts ofthepresent caseshortly arethe following: Applicant isaCvpriot subject andin 1973hegraduated from the Medical School of Thessaloniki University. Between September, 1973 and January, 1975, he was doing his pre15 registration at the NicosiaGeneral Hospital. On 22.2.1975, he went to England with the intention of settling there permanently and also to get engaged with an English subject whom he met during a brief visit in England 20 between July and September,
- 25 Applicant when he went to England on 22.2.1975, was admittedthereasavisitorandtimerestrictionswereimposedas tohisstayintheUnitedKingdom. (Seeblue9and 10of exhibit 1.) On 1.4.1975, applicant began working in England as a Medical Practitioner after obtaining a certificate of temporary registration as Medical Practitioner. On 27.4.1975 he got 30 engaged and in July of the same year he bought a house and in November, 1975hegot married. The stay of the applicant in England was subject to time restrictions until March, 1976 when he was granted indefinite 35 leave to stay there,whereupon on 9.3.1976, (blue 11of exhibit 1), all restrictions were removed and he was granted leave to staythere permanently. (Blue46of Exhibit 1.) Applicant resided in England continuously until 14.8.1985, 40 when hereturned to Cyprus to settle permanently. Counsel for the applicant contended that applicant has 331 Kourris,J. Malakounides v.Republic & Another
(1989)satisfiedtherequirementsofthelawinthathehadpermanently settled in England for a continuous period of over 10years before returningtoCyprusforpermanentresettlement. Helaid stressonthefactthattheintentionofapplicantwhenhewentto England was to settle-there permanently and that the period 5 whenhewasgivenleavetostayinEnglandtemporarilyshould be.taken into consideration in calculating the period for permanent stay. He relied on the case of Andreas Ttofis v. TheRepublic
(1988)3C.L.R.1625. Learnedcounseldrewmy attention to p. 1632oftheJudgmentwhereSawidesJ.saidthe 10 following: "But even ifIwouldhaveacceptedthecontention ofthe respondent that the applicant returned to Cyprus for permanent settlement in September, 1985, again I cannot 15 find that the period that the applicant started working in England as alleged by him, i.e. from 1974 till 9th March, 1976,when hewasgrantedindefinite leaveto remain inthe UnitedKingdomshouldbecompletelyignoredandexcluded from thecalculation oftherelevanttime." 20 Ontheotherhand,counselfortherespondentcontendedthat even if applicant intended to make England his permanent home,Englanddidnotpermithimtodoso. Thisisobvious,she said from the fact that applicant's stay thereuntil March, 1976 25 wassubject to time restrictionsandthat hisphysical staythere wasnotassociatedwiththeelementofpermanence astheU.K. authorities didnotpermitit. The question which poses for consideration is whether the 30 temporary stay of applicant in England should be taken into consideration incalculatingtheperiodforpermanent residence there. It is pertinent at this stage to point out that what Mr. JusticeSawides saidinthecaseofAndreasTtofi(supra),was obiter dicta:that casewasdecidedonanotherpoint. 35 Permanent residence is a question of fact and has to be decidedonthefacts ofeachparticularcase. In the case of Revekka Ellina v. The Republic
(1988)3 40 C.L.R. 2651,A.Loizou,P.saidthefollowingatp.2654,2655: 332 3 C.L.R. 5 Malakounides v.Republic &Another Kourris, J. "No doubt the determination of what constitutes permanent settlement depends on the facts of each case and a relevant consideration iswhether thecountry in which the person claims to have settled permanently has allowed that person to remain therein asapermanent resident orwhether such country has granted only a temporary permit under conditions." Again in the case of Theodoros Schinis v. The Republic 10
(1988)3 C.L.R. 2692, Loizou, P. adopted the reasoning of his judgment in thecase of Ellina(supra) andsaid thefollowing at p.2695. 15 20 "A similar situation arose in the case of Revekka Ellina v.TheRepublic of Cyprus
(1988)3C.L.R.2651,Judgment delivered on 30.12.1988, where I said in relation to the decidedcases which Ireviewed that arelevant consideration in determining what constituted permanent settlement is whether the country in which the person claims to have so settled permanently, hasallowed a person to remain therein asapermanent resident,orwhethersuchcountryhasgranted only atemporary permit under conditions." Andagain at thesame pagehesaid: 25 30 35 "Permanent residence is a question of fact and has to be decided having in mind, inter alia, whether the foreign country in which the applicant claims to have permanently settled,intended to receive him asapermanently established immigrant,inwhichcasehisstaytherewouldbe unrestricted. or on a temporary resident basis, whereupon his residence would be subject to restrictions, as it is the case that all the countries to which theapplicant has worked." With respect, Iagree andIadopt the reasoning of these two cases. The question whichposesfor determination iswhetherinthe light of theaforesaid casesandonthefacts hereinbefore set out, 40 it was reasonably open for the Director of the Customs and Excise Department to reach the subjudice decision. 333 Kourris, J. Malakounides v. Republic &Another
(1989)In myjudgment, theanswerisinthepositive,because hehad to take intoconsideration not onlytheintention oftheapplicant when he went to England, i.e. that he intended to settle permanently, but also whether the country in which the applicant claimsto havesosettledpermanently hasallowedhim 5 to remain therein as a permanent resident. In the present case the receiving country didnot allow applicant to remain therein as a permanent resident from the moment hewent to England. His stay from 22.2.1975 till 9.3.1976 was subject to time restrictions and this period cannot be taken into consideration 10 in calculating the relevant time. The time for the purposes of this law has started running from the date that England allowed applicant to stay there indefinitely without anyrestrictions asto time. Consequently, applicant did not complete 10 years permanent settlement in the United Kingdom and it was 15 reasonablyopen forthe DirectoroftheCustomsDepartment to reach the decision which hedid. In the circumstances, the recourse is dismissed but with no order for costs. Recourse dismissed. No orderas tocosts. 334 20