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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 533
1989 May 2
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
SAVVAS PERISTIANIS,
Applicant,
V.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF
FINANCE AND/OR THE DIRECTOR OF CUSTOMS DEPARTMENT,
Respondents.
(Case No. 1023/87)
Customs and Excise - Motor vehicles - Duty free importation of by repatriated Cypriots - The Customs and Excise Duties Law 18/78, sub-heading 19 of item 01 of the Fourth Schedule and Order 188/82 of the Council of Ministers - Permanent settlement abroad - Whether proper to take into consideration in determining the issue of permanent settlement abroad the attitude of the country of the alleged settlement which did not allow the applicant to remain therein as a permanent resident from the moment of his arrival there - Question determined in the positive.
The applicant, being a refugee by reason of the Turkish invasion, left Cyprus for England on 5/11/74. He stayed there until his return to Cyprus on 5/9/85. He claimed a right to a duty free importation of a motor vehicle under the hereinabove legislation. It was transpired that the applicant's stay in England was subject to time restrictions until 9/2/83, when such restrictions were lifted and the applicant was granted leave to stay there permanently. On the basis of this fact, the application was rejected, on the ground that the requirement of a continuous ten-year settlement abroad was not satisfied.
The question raised in this recourse is whether in the circumstances it was reasonably open to the respondent to reach the sub judice decision. The Court determined the question in the positive, because the respondent "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".
Recourse dismissed No order as to costs.
Cases referred to:
Ttofis v. Republic (1988) 3 C.L.R. 1625,
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,
Constantinides 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,
Ellina v. Republic (1988) 3 C.L.R. 2651,
Recourse.
Recourse against the refusal of the respondents to allow applicant to import a duty free motor vehicle as a repatriated Cypriot.
G. Stylianides for E. Efstathiou, for the Applicant.
S. Matsas, Counsel of the Republic B, for the Respondents.
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 free 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 18.6.1986, 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 ground 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 provisions 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 motor car, B.M.W. Saloon, free of duty. Hence the present recourse.
The matter is governed by the Excise Duties Law 18/78 s. ll and Order 188/82 published in the Third Supplement, Part II of the Official Cazette 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 at p. 135; Rossides v. 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 and Another (1988) 3 C.L.R. 2692).
The salient facts of the present case shortly are the following:
Applicant is a Cypriot subject arid his place of residence was Lapithos village where he was also running a garage for motor cars. As a result of the occupation of his village by the Turkish forces who invaded Cyprus in 1974, applicant left Cyprus for England on 5.11.1974, together with his family and he returned to Cyprus on 5.9.1985 for permanent re-settlement.
Applicant, when he went to England on 5.11.1974, was admitted there as a visitor with a time restriction for 3 months 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 restrictions until 9.2.1983 when all restrictions were removed and he was granted leave to stay there permanently.
The applicant resided in England continuously until 5/9/1985 when he returned to Cyprus to settle permanently. While in England he was working as a mechanic and vehicles electrician and since August, 1981, he was self-employed.
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 ten years before returning to Cyprus for permanent re-settlement. He laid stress on the fact that the intention of applicant when he went to England was to settle there permanently, because he lost in Cyprus everything he had. Consequently, he said, from the very 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 granted leave to enter the country and stay there subject to time restrictions.
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.
Permanent residence is a question of fact and has to be decided on the facts of each particular case.
In the case of Andreas Ttofis v. The Republic (1988) 3 C.L.R. 1625, L. Savvides, J., said the following at page 1632:-
"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 one 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 county 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 condition".
Again in the case of Theodoros Schinis v. The Republic (1988) 3 C.L.R. 2692, A. Loizou, P. adopted the reasoning of his judgment in the case of Ellina (supra) and said the following at p.2695, 2696;
"A similar situation arose in the case of Revekka Ellina v. The Republic of Cyprus (t988) 3 C.L.R. 2651; where I said in relation to the decided cases which I reviewed that a relevant cosnideration 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 a temporary permit under conditions".
And again at the same page be 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 on the facts herein before 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 5.11.1974 till 9.2.1983 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 with no order
as to costs.