3 C.L.R. 19S9May2 [KOURRIS.J] INTHE MATTER ΟΓ ARTICLE 146Of THECONSTITUTION SAVVASPbRISTIANIS, Applicant, THE REPUBLIC ΟΓ CYPRUS,THROUGH THE MINISTER Ol· FINANCE AND/ORTHE DIRECTOR ΟΓ CUSTOMS DEPARTMENT, Respondents (disc No 1023/87) 5 Customs and Excise — Motor \chicles — Duty free importation ot by repatriated typnois — The Customs and E\cisc Duties Iaw 18/78, sub-heading 19ot item 01 ot the Fourth Schedule and Order ISS/S2 ot the Councilot Ministers— Fermanent settlement abroad — Whether proper to take into consideration indeterminingtheissueot permanent settlement abroad the attitude ot the country ol the alleged settlement. which did not allow the applicant to remain therein as a permanent resident ttom the moment ot his armal there— Question determined in the positnc 10 15 The applicant,being atcfugce bv reason oi theTurkish invasion, left Cyprus for England on 5/11/74 He staved there until his return to Cyprus on 5/9/S5 He claimed a right to a duly free importation of a motor vehicle under thehereinabove legislation It was transpired that the applicant s stay in England was subject to time restrictions until 9/2/S3. when such restrictions were lifted and theapplicant was granted leave to stay there permanently On the basis of this lact. the application was rejected, on the ground that the requirement of a continuous ten-year settlement abroad was not satisfied 20 The question raised in this recourse is whether in the circumstances it was reasonably open to the icspondcnt to reach the sub judice 533
(1989)Peristianis v.Republic decision. The Court determined the question in the positive,because therespondent "hadtotakeintoconsideration notonlytheintentionof theapplicant when hewent to England, i.e.,that heintended to settle permanently,butalsowhetherthecountryinwhichtheapplicantclaims tohavesosettled permanently,hasallowedhimtoremain thereinasa 5 permanent resident". Recourse dismissed. Noorderas tocosts. Casesreferredto: \0 Ttofisv. Republic(19SS) 3C.L.R. 1625, Razisv.Republic
(1979)3C.L.R. 127, 15 Rossidcs v.Republic
(1984)3C.L.R. 1482, Matsas v.Republic
(1985)3C.L.R. 54, Mavronichis v. Republic(19S5)3C.L.R. 2301, 20 Constantinidcs v.Republic
(1986)3C.L.R. S82, loannou v.Republic
(1986)3C.L.R. 1263, 25 Schinis v.Republic(I9SS) 3C.L.R. 2692, Ellina v. Republic(I9SS)3C.L.R. 2651. Recourse. 30 Recourse against the refusal of the respondents to allow applicant to import a duty free motor vehicle as a repatriated Cypriot. 35 G. Stylianides for E. Efstathiou. for the Applicant. S. Matsas, Counsel of the Republic B, for the Respondents. Cur. adv. vult. 40 KOURRIS. J. read the following judgment. By the present 534 3 C.L.R. Peristianis v.Republic Kourris, J. recourse, applicant seeks adeclaration of the Court that the act and/or decision of the respondents to refuse to himto import a motor vehicle free of dutyin accordance withthe provisions of sub-heading 19 of item 0.1 of the Fourth Schedule to the 5 Customs and Excise Duties Law (Law 18/78) is null and void andof no legal effect whatsoever. On 18.6.1986, applicant submitted an application to the Customs and Excise Department seeking relief under sub10 heading 19of Item 0.1 of the Fourth Schedule of Law 18/78on theground that having been a Cypriot, who,after a permanent settlement abroad for a continuous period of at least 10years, returned to Cyprus in order to settle permanently. 15 The appropriate authority, after examining all the material before it in relation to applicant's application, decided that his case does not fall within the provisions of the law and relevant regulations on theground that hisabsence from Cyprus did not constitute a permanent settlement abroad for a continuous 20 period of at least 10years, and rejected the application of the applicant for the importation of hismotorcar. B.M.W. Saloon, free of duty. Hence the present recourse. The matter isgoverned by the Excise Duties Law 18/78 s.ll 25 andOrder 1S8/82 published intheThirdSupplement, Part IIof the Official Cazette of the Republic of 11th June, 1982, under notification 17/83.ThesaidOrder,insofar asrelevant, readsas follows:30 35 "Vehicles.... imported by Cypriots who after permanent 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. The relief from import duty covers only one vehicle for every family.". 40 The point in issue is whether applicant settled abroad permanently for a continuousperiod ofatleast 10years before hereturned to settle permanently inCyprus. 535 Kourris, J. Peristianis v. Republic
(1989)The notion of permanent settlement abroad has been explained, inter alia, in the cases of Razis v. The Republic
(1979)3 C.L.R. 127at p. 135;Rossides v.Republic
(1984)3 C.L.R. 14S2 at p. 1486; Matsas v. The Republic (19S5) 3 C.L.R. 54 at pp.5S -62; Mavronichis v. TheRepublic
(1985)5 3 C.L.R. 2301; Constantinides v. The Republic
(1986)3 CL.R.882; loannou v.TheRepublic
(1986)3 C.L.R. 1263and Theodoros Schinis v. The Republic and Another
(1988)3 C.L.R.2692). 10 Thesalient facts ofthepresent caseshortlyarethe following: Applicant isa Cypriot subject and his place of residence was Lapithos village where he wasalso running agarage for motor cars. As a result of the occupation of his village by the Turkish 15 forces who invaded Cyprus in 1974. applicant left Cyprus for England on 5.11.1974, together with hisfamily andhe returned to Cyprus on 5.9.1985 for permanent re-settlement. Applicant, when he went to England on 5.11.1974, was 20 admitted there as a visitor with a time restriction for 3months on the condition that he would not obtain any employment either with or without remuneration. The stay of the applicant in England was subject to time 25 restrictions until 9.2.1983 when all restrictions were removed and he wasgranted leave to staythere permanently. The applicant resided in England continuously until 5/9/1985 when he returned to Cyprus to settle permanently. While in 30 England he was working as a mechanic and vehicles electrician and since August. 19S1,he was self-employed. Counsel for the applicant contended that applicant has satisfied the requirements of thelawinthat hehadpermanently 35 settled in England for a continuous period of over ten years before returningto Cyprus for permanent re-settlement. Helaid stressonthefact that theintention of applicantwhenhewent to England was to settle there permanently, because he lost in Cyprus everything hehad.Consequently,hesaid,from thevery 40 moment he went to England his intention was to settle there permanentiy, and he said that the Court should not take into 536 3 C.L.R. Peristianis v. Republic Kourris, J. consideration the fact that when he went to England he was grantedleavetoenterthecountry andstaytheresubject totime restrictions. 5 The question which poses for consideration is whether the temporary stay of applicant in England should be taken into consideration incalculating the period for permanent residence there. 10 Permanent residence isaquestion of fact andhasto be decided on the facts of each particularcase. In the case of Andreas Ttofis v. The Republic
(1988)3 C.L.R. 1625,L.Savvides.J., saidthe following at page 1632:15 20 "But even if Iwouldhave acceptedthe contention of the respondent that the applicant returned to Cyprus for permanent settlement in September, 1985, again I cannot find that the period that the applicant started working in England as alleged by him. i.e. from 1974 till 9th March, 1976, when he wasgranted indefinite leave to remain in the United Kingdom should becompletely ignored and excluded from the calculation of the relevant time". 25 Ontheotherhand,counsel fortherespondent contended that even if applicant intended to make England his permanent home, England didnot permit himto doso.Thisisobvious,she said from the fact that applicant's stay there until March 1976, was subject to time restrictions and that his physical stay there 30 wasnot associated with the element of permanence asthe U.K. authorities didnot permit it. The question which poses for consideration is whether the temporary stay of applicant in England should be taken into 35 consideration in calculating the period for permanent residence there. It is pertinent at this stage to point out that what Mr. Justice Sawides said in the case of Andreas Ttot'i(supra), was obiter dicta:that case was decidedon another point. 40 Permanent residence is a question of fact and has to be decided one thefacts of each particular case. 537 Kourris, J. Peristianis v.Republic
(1989)In the case of Revekka Ellina v. The Republic
(1988)3 C.L.R. 2651, A. Loizou,P.saidthe following atp.2654,2655: "No doubt the determination of what constitutes permanent settlement depends on the facts of each case and 5 a relevant consideration iswhether the county in which the person claims to have settled permanently has allowed that person to remain therein asapermanent resident or whether such country has granted only a temporary permit under conditions". Again in the case of Theodoros Schinis v. The Republic
(1988)3C.L.R.2692,A. Loizou.P.adoptedthereasoning ofhis judgment in the case of Ellina(supra) andsaidthe following at p. 2695,2696: 10 15 "A similar situation arose inthe case of Revekka Ellina v.The Republic of Cyprus
(1988)3 C.L.R. 2651;where I said in relation to the decided cases which Ireviewed that a relevant cosnideration in determining what constituted 20 permanent settlement is whether the country in which the person claims to have so settled permanently, hasallowed a person toremain therein asapermanent resident,orwhether such country has granted only a temporary permit under conditions". 25 And again atthe same page hesaid: "Permanent residence isa question of fact and has to be decided having in mind, inter alia, whether the foreign 30 country in which the applicant claims to have permanently settled, intended to receivehim asapermanently established immigrant,inwhichcasehisstaythere wouldbe unrestricted, or on a temporary resident basis, whereupon his residence would be subject to restrictions, as it is the case that all the 35 countries to which the applicant has worked". With respect, Iagree and Iadopt the reasoning of these two cases. Thequestion which posesfor determination iswhetherinthe lightofthe aforesaid casesandonthefacts hereinbefore set out, 538 40 3 C.L.R. Peristianis v.Republic Kourris, J. it was reasonably open for the Director of the Customs and Excise Department to reach thesubjudice decision. Inmyjudgment,theanswer isinthepositive,becausehehad 5 totakeintoconsideration notonlytheintentionoftheapplicant when he went to England, i.e. that he intended to settle permanently, but also whether the country in which the applicant claimstohavesosettledpermanently hasallowedhim to remain therein as a permanent resident. In the present case 10 the receiving country didnot allow applicant to remain therein asa permanent resident from themoment hewent to England. His stay from 5.11.1974 till 9.2.1983 was subject to time restrictions and this period cannot be taken into consideration incalculatingtherelevanttime.Thetimeforthepurposesofthis 15 law has started running from the date that England allowed applicant tostaythereindefinitely without anyrestrictions asto time. Consequently, applicant did not complete 10 years permanent settlement in the United Kingdom and it was reasonablyopen tortheDirectoroftheCustomsDepartment to 20 reach the decision whichhedid. In the circumstances, the recourse is dismissed but with no order for costs. 25 Recoursedismissedwithno order astocosts. 539