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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 328
1989 March 15
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE 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 country granting temporary permits for a period of time prior to granting permit for permanent residence - Whether the temporariness of the permit of the foreign country could be taken into account, in the face of undisputed applicant's intention to settle permanently therein - Question determined in the positive.
The applicant intended to make England his permanent home. He 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 legislation. The application was dismissed on the ground that, notwithstanding that the applicant completed ten years residence in England, part of it was not a permanent one, because that country did not grant to the applicant from the very beginning a permit for permanent residence.
Held, in dismissing the recourse, that the finding by the respondent as regards the issue of permanent settlement abroad for a continuous ten- year period (a necessary prerequisite for the benefit of a duty free importation of a motor vehicle) was reasonably open to the respondent.
Recourse dismissed. No order as to
costs.
Cases referred to:
Razis v. Republic, (1979) 3 C.L.R. 127,
Rossides v. Republic (1984) 3 C.L.R. 1482,
Matsas v. Republic (1985) 3 C.L.R. 54,
Mavronichis, v. Republic (1985) 3 C.L.R. 2301,
Constamtinides v. Republic (1986) 3 C.L.R. 882,
Ioannou v. republic (1986) 3 C.L.R. 1263,
Schinis v. Republic (1988) 3 C.L.R. 2692,
Trofis v. Republic (1988) 3 C.L.R. 1625,
Ellina v. Republic (1988) .3 C.L.R. 2651.
Recourse.
Recourse against the refusal of the respondents to allow applicant to import a motor vehicle free of duty as a repatriated Cypriot.
A. Haviaras, for the Applicant.
D. Papadopoullou (Mrs), Counsel of the Republic B, for the Respondent.
Cur. adv. vult.
KOURRIS, J. read the following judgment. By the present recourse, applicant seeks a declaration of the Court that the act and/or decision of the respondents to refuse to him to import a motor vehicle tree of duty in accordance with the provisions 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 1.7.1986, applicant submitted an application, to the Customs and Excise Department seeking relief under sub heading.19 of Item. 0.1 of the Fourth Schedule of Law 18/78 on the g round that having been a Cypriot, who, after a permanent settlement abroad for a continuous period of at least 10 years, returned, to Cyprus in order to settle permanently.
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 provisins of the law and relevant regulations on the ground that his absence from cyprus did not constitute. a permanent settlement abroad for a continuous period of at least 10 years and. rejected the application of the applicant for the importation of his motorcar, Mercedes make, No. SU 517, free of duty (See blue 56 and. blue 60 of exhibit I. which is the administration file) Hence the present recourse.
The matter is governed by the Excise Duties. Law 18/78 s. 11 and Order 188/82 published in the. Third Supplement, Part II of the Official Gazette of the Republic of 11th June, 1982, under notification 17/83. The said Order, in so far as relevant, reads as follows:-
"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."
The point in. issue is whether applicant settled abroad permanently for a continuous period of at least 10 years before he returned, to settle permanently in Cyprus.
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; Rossides v. The Republic (1984) 3 C.L.R. 1482 at p. 1486; Matsas v. The Republic (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; Ioannou v. The .Republic (1986) 3 C.L.R. 1263; and Theodoros Schinis v. The Republic (1988) 3 C.L.R. 2692.
The salient facts of the present case shortly are the following:
Applicant is a Cypriot subject and in 1973 he graduated from the Medical School of Thessaloniki University. Between September, 1973 and January, 1975, he was doing his pre15 registration at the Nicosia General 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 between July and September, 1973.
Applicant when he went to England on 22. 2.1975, was admitted there as a visitor and time restrictions were imposed as to his stay in the United Kingdom. (See blue 9 and 10 of exhibit 1)
On 1.4.1975., applicant began working England as a Medical Practitioner after obtaining a certificate of temporary registration as Medical Practitioner. On 27.4.1975 he got engaged and In July of the same year he bought a house and in November, 1975 he got married.
The stay of the applicant in England was subject to time restrictions until March, 1976 when he was granted indefinite leave to stay there, whereupon on 9.3.1976, (blue 11 of exhibit 1), all restrictions were removed and he was granted leave to stay there permanently (Blue 46 of Exhibit 1.)
Applicant resided in England continuously until 14.8.1985, when he returned to Cyprus to settle permanently.
Counsel for the applicant contended that applicant has satisfied the requirements of the law in that he had permanently settled in England for a continuous period of over 10 years before returning to Cyprus for permanent resettlement. He laid stress on the fact that the intention of applicant when he went to England was to settle there permanently and that the period when he was given leave to stay in England temporarily should be taken into consideration in calculating the period for permanent stay. He relied on the case of Andreas Ttofis v. The Republic (1988) 3 C.L.R. 1625. Learned counsel drew my attention to p. 1632 of the Judgment where Savvides J. said the following:
"But even if I would have accepted the 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 was granted indefinite leave to remain in the United Kingdom should be completely ignored and excluded from the calculation of the relevant time."
On the other hand, counsel for the respondent contended that even if applicant intended to make England his permanent home, England did not permit him to do so. This is obvious, she said from the fact that applicant's stay there until March, 1976 was subject to time restrictions and that his physical stay there was not associated with the element of permanence as the U.K. authorities did not permit it.
The question which poses for consideration is whether the temporary stay of applicant in England should be taken into consideration in calculating the period for permanent residence there. It is pertinent at this, stage to point out that what Mr. Justice Savvides said in the case of Andreas Ttofi (supra), was obiter dicta: that case was decided on another point.
Permanent residence is a question of fact and has to be decided on the facts of each particular case.
In the case of Revekka Ellina v. The Republic (1988) 3 C.L.R. 2651, A. Loizou, P. said the following at p. 2654, 2655:
"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 to remain therein as a permanent resident or whether such country has granted only a temporary permit under conditions."
Again in the case of Theodoros Schinis v. The Republic (1988) 3 C.L.R. 2692, Loizou, P. adopted the reasoning of his judgment in the case of Ellina (supra) and said the following at p.2695.
"A similar situation arose in the case of Revekka Ellina v. The Republic of Cyprus (1988) 3 C.L.R. 2651, Judgment delivered on 30.12.1988, where I said in relation to the decided cases which I reviewed that a relevant consideration in determining what constituted permanent settlement is whether the country in which the person claims to have so settled permanently, has allowed a person to remain therein as a permanent resident, or whether such country has granted only a temporary permit under conditions."
And again at the same page he said:
"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 as a permanently established immigrant, in which case his stay there would be 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 the applicant has worked."
With respect, I agree and I adopt the reasoning of these two cases.
The question which poses for determination is whether in the light of the aforesaid cases and oh the facts hereinbefore set out, it was reasonably open for the Director of the Customs and Excise Department to reach the sub judice decision.
In my judgment, the answer is in the positive, because he had to take into consideration not only the intention of the applicant when he went to England, i.e. that he intended to settle permanently, but also whether the country in which the applicant claims to have so settled permanently has allowed him to remain therein as a permanent resident. In the present case the receiving country did not allow applicant to remain therein as a permanent resident from the moment he went 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 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 any restrictions as to time. Consequently, applicant did not 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 he did.
In the circumstances, the recourse is dismissed but with no order for costs.
Recourse dismissed No order as
to costs.