(1989)19S9Junc7 (KOURRIS,Jj INTHE MATTER OY ARTICLE 146 Ο THECONSTITUTION FLORA CHRISTOPHI, Applicant, v. THE REPUBLICOf- CYPRUS.THROUGH THE MINISTRY 0Γ IIXANCE AND/OR ANOTHER. Respondent* (Gtsc.\o 137/SS) Cwiiomi and excise — Motor \ehiclcs — Duty tree importation ot by repatriated C\pnois — The Customs and F\cise Duties Law IS/197S. section 11
(2)and the tourlh Schedule, subheading 19 ot item 0! and Order ISS/S2 ot the Council ol Ministers — Permanent settlement abroad — In determining the issue whether applicant had been permanently sealed abroad the stance ot the country, in which he claims to ha\c so settled, is arelevantconsideration 5 The applicant applied lor aduty lice importation ol amotor vehicle under the aforesaid legislation It transpired that ihc applicant went to 10 Saudi Arabia and the United Arab Emirates on 24/S/1974 and stayed there until 9/7/S7. when she returned to Cyprus and submitted the afoicsaid application. Applicant's stav in both the aforesaid countries was subject to time 15 restrictions In the light ol that tact and ot the authorities cited by the Court, the Court concluded that the rejection ot theapplication,on the ground that theapplicant hadnot been permanently settled abroad, was reasonably open to the respondent 20 Recourse dismissed No order as to COslS 662 3 C.L.R. Christophi v. Republic &Another Cases referredto: Ra/.isv. Republic
(1979)3 C.L.R.
- 5 Rossides v.Republic (I9S4) 3 C.L.R.14S
- Matsas v. Republic(I9S5) 3 C.LR.
- Mavronichis v.Republic(19S5)3C.L.R.
- 10 Constantinidcs v.Republic(I9S6) 3 C.L.R.SS2, loannou v. Republic
(1986)3C.LR.
- 15 Schinisv. RepublicandAnother (I9SS) 3C.L.R.
- Ellinav.RepublicandAnother (19SS)3 C.L.R.
- Recourse. 20 Recourse against the decision of the respondents whereby they refused to allow applicant to import a duty-free motor vehicle as a repatriated Cypriot. 25 A. Pumiyiotou. for the Applicant. Y.Laznrou,Counsel of theRepublic B.for the Respondent. Cur.adv.vulc. 30 KOURRIS.J. read the following judgment. By the present recourse applicant seeksadeclaration of the Court that theact and/or decision of therespondents to refuse to her to import a motor vehicle free of duty in accordance with the provisions 35 of sub-heading 19 of item 0.1 of the Fourth Schedule to the Customs and Excise Duties Law (Law 18/78) is null and void and of no legal effect whatsoever. On 17.11.1987 applicant submitted an application to the 40 Customs and Excise Department seeking relief under sub heading 19 of Item 0.1 of the Fourth Schedule of Law 18/78on theground that havingbeen aCypriot. who.after a permanent 663 Kourris,J. Christophi v.Republic & Another
(1989)settlement abroadfor acontinuousperiodofatleast 10years, returned to Cyprus in orderto settle permanently. The appropriate authority, after examining allthematerial before itinrelation toapplicant'sapplication,decidedthather 5 casedoesnotfall withintheprovisionsoftheLawandrelevant regulations on the ground that her absence from Cyprus did notconstituteapermanentsettlement abroadforacontinuous period of at least 10 years,and rejected theapplication ofthe applicant for theimportation of hermotor car, Mercedes500 10 SELunderReg.No.414V86. ThematterisgovernedbytheExciseDutiesLaw 18/78s.11 andOrder 188/82publishedintheThirdSupplement.Part IIof the Official Gazette of theRepublic of 11thJune. 1982,under 15 notification 17/S3.The saidOrder,insofar asrelevant,reads asfollows:"Vehicles....imported by Cypriots who after permanent settlement abroad for a continuous period of at least 10 20 years, return and settle permanently in the Republic, provided that the importation ismade within a reasonable time since their arrival according to the judgment of the Director. 25 The relief from import dutycovers onlyone vehiclefor every family." The point in issue is whether applicant settled abroad permanently for a continuous period oi at least 10 years "30 before she returned tosettlepermanently inCyprus. The notion of permanent settlement abroad has been explained, inter alia, in the cases of Razis v. The Republic
(1979)3 C.L.R. 127 at p. 135; Rossides v. TheRepublic 35
(1984)3 C.L.R. 1482 at p. 14S6: Matsas v. TheRepublic
(1985)3 C.L.R. 54 at pp. 58-62; Mavronichis v. The Republic
(1985)3 C.L.R. 2301; Constantinides v. The Republic
(1986)3 C.L.R. 882; loannou v. The Republic '
(1986)3 C.L.R. 1263; and Theodoros Schinis v. The 40 Republic andAnother
(1988)3C.L.R. 2692 ,and Revecca Ellina v.TheRepublicandAnother
(1988)3C.L.R. 2651. 664 3 C.L.R. Christophi v.Republic &Another Kourris, J. The salient facts of the present case shortly are the following: Applicant went to Saudi Arabia and the United Arab 5 Emirates on24.8.1974 in ordertojoin herhusbandwhotook upemploymentthereandshestayedthereuntil9.7.1987when she returned to Cyprus in order to settle permanently. She went to SaudiArabiaandthe Emirates with herchildren who attended school there. The said applicant in those countries 10 was subject to time restrictions asit appears from the photo copyofthepagesofherpassport whichform part ofexhibit1 which istherelevant file of theadministration. Counsel for the applicant contended that applicant has 15 satisfied the requirements of the law in that she had permanently settled in Saudi Arabia and the United Arab Emirates for a continuous period of over 10 years before returning to Cyprus for permanent re-settlement. He laid stressonthefact thattheintention ofapplicant whenshewent 20 tothose countrieswastosettlethere permanently. The question which poses for consideration iswhetherthe applicant settled abroad permanently for acontinuous period of at least 10years before she returned to settle permanently 25 inCyprus. Permanent settlement is a question of fact and has to be decidedon thefacts ofeach particularcase. 30 Inthecaseof Matsasv. TheRepublic(supra),A.Loizou. J.; (ashethen was)stated thefollowing atp. 61:- "To my mind permanent settlement carries with it the notion of a real or permanent home and should be 35 distinguished from thenotion of ordinary residence." In thecase of Ioannou v.The Republic(supra),Pikis.J.. statedat p.1266:40 "Thequestion thatmustbeanswerediswhether 10years stay in aforeign county immediately qualifies thestayeras a permanent settler in that county for the purpose of the 665 Kourris. J. ChnMophi \. Republic & Another
(1989)Order Ithink not.Theconcept of permanentsettlement is not tied to the length ot stay but to the element of permanenceassociated with physical stay". The facts ol the Ioannou case are more or less similar to 5 the facts ot the case in hand Inthat case theapplicant staved in Saudi Arabia trom 196S-1982 Hewent there pursuant toa contract oi emplovment with a Gieek construction company His recourse was dismissed that he had not permanently settled in Saudi Arabia on the ground inter aha that non- 10 Moslems have no right tosettle inthatcountry In the case ot Ellina\. The Republic(supra).A. Loizou. Ρ pointed out that a relevant consideration in determining what constituted permanentsettlement iswnetherthecountry 15 in which theperson claimstohave sosettled permanently,has allowed aperson to remain therein as apermanent resident or whether such country has granted only a temporary permit underconditions 20 With respect. I agree and I adopt the reasoning ol these cases The applicant's settlement abroad in the present case was temporary a^she wa.s only allowed into Saudi Arabia andthe 25 bnited Arab Emirates so that she could be near her husband who was in these countries tor aspecific andlimited purpose, namely, to work, and she has not been allowed by those counties tosettle thereinpermanenth 30 The question which poses tor determination is whether in thelight oftheatoresaid cases andonthetactshereinbetore set out, it was reasonably open for the Director ot the Customs and Excise Departmenttoreachthesubjudice decision 35 In my judgment the answer is in the positne. because he had to take into consideration not onlv the intention ot the applicant when she went to Saudi Arabia andtheUnitedArab Emirates who joined her husband who was working there,i.e that she intended to settle permanently, but also whether the 40 countries in which the applicant claims to have so settled permanently have allowed her to remain therein as a 666 3 C.L.R. 5 10 Christophi ν. Republic & Another Kourris. J. permanent settler. In the present case the receiving country did not allow applicant to remain therein as a permanent settler. Her stay from 24.S.1974 until 9.4.1987 was temporary because she went there to join her husband who was working there.Further,herstay was subject totime restrictions andnonMoslems have no right to settle in those countries. Consequently, applicant did not satisfy the requirements of the law entitling her to a duty free motor vehicle. In the circumstances, the recourse is dismissed but with no order for costs. Recourse dismissed. No order as to cosrs. 667