(1989)1989July12 [KOURRIS.J ] INTHE MATTER OF ARTICLE 146OF THE CONSTITUTION PANAYIS SAWA. Applicant. ν THE REPUBLIC 01 CYPRUS,THROUGH THE MINISTRY 01FINANCE AND ANOTHER. Respondent!, (Case Λο.46I/S6) Cihioms and excise — Motor \ehiclcs— Importation of. byrepatriated Qpnoh — The Customs andExciseDutiesLawIS/7S.subheading 19ol item 0 I ol the lotinh Scheduleand Order ISS/S? ol the Council ol Ministers — Peimanent settlement tibioad — In determining the question not only theintentionol theapplicantto settlepermanently in 5 another country should be taken into consideration,but alsowhether suchcountry allowedhim to remainthereinasapermanentresident. l·\ecutory act — Confirmatory act— Re-examination ol application lora duty free importation of motor car— No new material placedbefore \Q administration — Sew decision to thesamecitcet as theoriginaldecision is of a combinatory nature— Therefore, piescnt recourse,which was tiledaltertheexpirationol 75days as trom theoriginal decision, isoutol time. 15 By mearb ol this recourse the applicant challenges the decision. whercb) his application lor aduty free importation ol a motor carasa repatriated Cypnot wasdismissedlorthesecondtime Theadministration originally dismissed the application, but it re-examined the case, upon request by applicant's son.who.however,did not placean> newmaterial 2 0 betore theadministiation. 764 3 C.L.R. 5 10 Savva v. Republic & Another The applicant went to England with intention to settle permanently therein on 30/10/74. However till September 1977he was admitted by England asa visitor with time restrictions. Such restrictions were finally lilted in October 19S2. The applicant returned to Cyprus on 27/11/84. His application was dismissed on the ground thai he had not completed 10 continuous years of permanent settlement abroad. TheCourt,indismissingtherecourse,heldthat thesubjudiccdecision is confirmatory in nature and that, in any event, in the light of the particular facts and the principle enunciated in the second of the above Headnotcs, the requirement of permanent settlement abroad for a continuous period of 10years had not been satisfied. Recourse dismissed So order as to costs. 15 Cases referredto: Kritiotis v.MunicipalityofPaphos
(1986)3 C.L.R. 322, 20 Chrysanthou andOthersv.Republic(I9S6)3 C.L.R. 112S, Razis v.Republic
(1979)3C.L.R.
- 25 Rossidcsv.Republic(19S4)3 C.L.R
- Matsiis- v.Republic
(1985)3C.L.R. 54. Mawomchis v.Republic
(1985)3 C.L.R. 2301. 30 Constantinidesv.Republic
(1986)3 C.L.R. 822. loonnou v. Republic
(1986)3 C.L.R. 1263, 35 Schinisv.Republic(I9SS) 3C.L.R.
- Ellinav.Republic(I9S8) 3 C.L.R.
- Recourse. 40 Recourse against the refusal of the respondents to allow applicant to import a duty-free motor 765 vehicle as a repatriated Savva v.Republic &Another
(1989)Cypriot. Chr.Vassiliades withP.Liveras,for the Applicant. S. Georghiades. Senior Counsel of the Republic, for the 5 Respondents. Cur. adv. wit. KOURRIS, J. read the following judgment. By the present 10 recourse, applicant seeks adeclaration of the Court that theact and/or decision of the respondents to refuse to him to import a motor vehicle free of duty in accordance with the provisionsof sub-heading 19 of Item 0.1 of the Fourth Schedule to the Customs and Excise Duties Law (Law 1S/7S) is null and void 15 andof no legal effect whatsoever. On 22/1/
- applicant submitted an application to the Customs and Excise Department seeking relief under subheading 19of Item 0.1 of the Fourth Schedule of Law 1S/7Son 20 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. The appropriate authority, after examining all the material 25 before it in relation to applicant's application, decided on 29/4/1985 that hiscase does not fall within the provisions of the lawandrelevant regulationsonthegroundthat hisabsence from Cyprus did not constitute a permanent settlement abroad for a continuous period of at least 10 years, and rejected the 30 application of theapplicant fortheimportation ofhismotorcar. B.MAV.No.QZ553,free of duty. Hence"the present recourse. The matter is governed by the Excise Duties Law IS/78 section 11andOrder 18S/82published in theThirdSupplement, 35 Part IIof theofficial GazetteoftheRepublicof 11thJune. 19S2, underNotification 17/
- ThesaidOrder, inso far as relevant, reads as follows:"Vehicles ... imported by Cypriots who after permanent 40 settlement abroad for a continuous period of at least 10 years, return and settle permanently in the Republic, 766 3 C.L.R. Savva v. Republic &Another Kourris, J. provided that the importation is made within a reasonable time since their arrival according to the judgement of the Director. 5 The relief from import duty covers only one vehicle for every family." The point in issue is whether applicant settled abroad permanently for acontinuous period of at least 10years before 10 he returned to settle permanently in Cyprus. AtthisstageIproposetodealwithapreliminarypoint raised by learned counsel for the respondents. He contended that the sub judice decision isconfirmatory of the decision taken by the 15 respondents on 29/4/1985 and therefore, it is not justiciable under Article 146 of the Constitution (see Kritiotis v. Municipality of Paphos (19S6) 3 C.L.R. 322, Chrysanthou and Others v. The Republic
(1986)3 C.L.R. 1128 at page 1137.decidedbvthe Full Bench). 20 Counsel for the applicants contended that after the decision of the respondent authority on 29/4/1985, the son of the applicant addressed a letter to the respondents with new material and the respondents having examined the matter gave 25 their decision on 8/5/19S6 by which they rejected the application. I have perused the letter of the son of the applicant dated 6/5/1985.whichisattachedasappendix Ato thewritten address 30 of counsel for the respondent, and I am satisfied that no new material was placed before the respondent authority. Consequently, I am satisfied that the sub judice decision is confirmatory of the decision of the respondent authority taken on29/4/1985 andfor this reason alone therecourse isdismissed 35 as it hasbeen filed out oftime. Inow propose to examine the substance of the recourse ifit were to beheldthat Iwaswrongon the preliminary issue. 40 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 page 135.Rossides v. The Republic 161 Kourris,J. Savvav. Republic &Another
(1989)
(1984)3 C.L.R. 1482 at page 1486, Matsas v. The Republic
(1985)3 C.L.R. 54 at page 5S-62. Mavronichis v. The Republic
(1985)3 C.L.R. 2301, Constantinides v. The Republic (19S6) 3 C.L.R. S22. Ioannou v. The Republic
(1986)3C.L.R. 1263.and Theodoros Schinis v.TheRepublic 5
(1988)3CL.R.2692). The salient facts of the present case shortly are the followin?:10 Applicant isa Cypriot subject and hisplace of residence was Trikomo village. Asa result of theoccupation of hisvillage by the Turkish forces who invaded Cyprus in 1974, applicant left Cyprus for England on 3/10/1974,together with hiswife andhe returned to Cyprus on 27/11/1984 for permanent re-settlement. 15 Applicant, when he went to England on 30/10/1974, was admitted there as a visitor with time restrictions till September 1977on thecondition thathewouldnot obtain anyemployment either with or without remuneration. 20 The stay of the applicant in England was subject to time restrictions until October 1982 when all restrictions were removed and he was granted leave tostavthere permanently. 25 The applicant resided in England continuously until 27/11/1984 when he returned to Cyprus to settle permanently. It is obvious from the affidavit sworn on 21/4/19S9 by a certain Jack Nicholas, who was established in London in the 30 garment industry that the applicant was "unofficially"', as he stated in his affidavit, employed by his firm in U.K. as a maintenance employee from the end of 1974till 1976. He goes on to say that since 1976 applicant and his son 35 Panicos started to re-establish themselves in the furniture trade in London initially with the business name of "Panayiotou Interiors"andhe watched theirbusinessgrow successfully anda year or two later on they started exporting furniture all over Europe under the trade name "Lord Sheratons" which had 40 become their trade name until today. 768 3 C.L.R. Savva v. Republic &Another Kourris, J. Itappearsfrom thisaffidavit that theapplicant wasemployed by thesaidfirm from 1974to 1976against theconditions ofhis permit to enter the U.K. 5 Counsel for the applicant contended that applicant has satisfied therequirements ofthe lawinthathehad permanently settled in England for a continuous period of over 10 years before returningtoCyprusforpermanent re-settlement. Helaid stressonthefact that theintention ofapplicant whenhewent to 10 England was to settle there permanently, because he lost in .Cypruseverythinghehad. Consequently,hesaid,from thevery moment he went to England his intention was to settle there permanently, and he said that the Court should not take into consideration the fact that when he went to England he was 15 grantedleavetoenterthecountry andstaytheresubject totime restrictions. On the other hand, counsel for the respondents contended that even if applicant intended to make England his permanent 20 home. England didnot permit him to doso. This isobvious,he said from the fact that applicant's stay there until October 1982 wassubject to time restrictions and that his physical stay there wasnot associated with theelement of permanence asthe U.K. authorities didnot permit it. 25 The question which poses for consideration is whether the stay of applicant in England subject to time restrictions should be taken into consideration in calculating the period for permanent residence there. 30 Permanent residence is a question of fact and has to be decided on the facts ofeach particular case. In the case of Revekka Ellina v. The Republic
(1988)3 35 C.L.R. 2651,A. Loizou, P., said the following at pages 2654. 2655:- 40 "No doubt the determination of what constitutes permanent settlement depends on the facts of each case and a relevant consideration is whether the country in which the person claims to have settled permanently has allowed that person toremain therein asapermanent resident orwhether 769 Kourris. J. Savva v. Republic &Another
(1989)such country has granted only a temporary permit under conditions." Again in the case of Theodoros Scbinis v. The Republic
(1988)3C.L.R.2692,A.Loizou.P..adoptedthereasoningofhis 5 judgment in the case of Ellina(supra) andsaidthefollowing at page2695:"A similar situation arose in the case of Revekka Ellina v. The Republic of Cyprus (19S8) 3C.L.R. 2651.where I 10 said in relation to the decided cases which Ireviewed that a relevant consideration in determining what constituted permanent settlement is wether the country in which the person claims to have sosettled permanently, hasallowed a person toremaintherein asapermanent resident,orwhether 15 such country has granted only a temporary permit under conditions." Andasain at pa^e 2696 hesaid:20 "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 receivehim asapermanently established immigrant, inwhichcasehisstaythere wouldbeunrestricted. 25 or on a temporary resident basis, whereupon his residence would be subject to restrictions, as it isthe case that all the countries to which theapplicant has worked." With respect, Iagree and 1 adopt the reasoning of these two 30 cases. Thequestion which posesfor determination iswhetherinthe light ofthe aforesaid cases andon thefacts hereinbefore set out, it was reasonably open for the director of the Customs and 35 Excise Department to reach the subjudice decision. In myjudgment, theanswerisinthepositive,because hehad totakeintoconsideration not onlytheintention oftheapplicant when he went to England, i.e. that he intended to settle 40 permanently, but also whether the country in which the applicant claimsto havesosettled permanently hasallowedhim 770 3 C.L.R. Savva v. Republic &Another Kourris, J. to remain therein as a permanent resident. In the present case the receiving country didnot allow applicant to remain therein asa permanent resident from the moment hewent to England. His stay from 30/10/1974 until October 1982 was subject to 5 time restrictions and this period cannot be taken into consideration incalculatingthe relevant time. Thetime for the purposes of this law has started running from the date that England allowedapplicant tostaythereindefinitely without any restrictions as to time. Consequently, applicant did not 10 complete 10 years permanent settlement in the United Kingdom and it was reasonably open for the director of the Customs Department to reach the decision which hedid. In the circumstances, the recourse is dismissed but with no 15 order for costs. Recourse dismissed. No orderas tocosts. Ill