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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 662
1989 June 7
[KOURRIS, J.J
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
FLORA CHRISTOPHI,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF
FINANCE AND/OR ANOTHER,
Respondents.
(Case No. 137/88)
Customs and excise-Motor vehicles-Duty free importation of by repatriated Cypriots-The Customs and Excise Duties Law 18/1978. section 11(2) and the fourth Schedule subheading 19 of item 01 and Order 188/82 of the Council of Ministers-Permanent settlement abroad-In determining the issue whether applicant had been permanently settled abroad, the stance of the country, in which he claims to have so settled, is a relevant consideration.
The applicant applied for a duty free importation of a motor vehicle under the aforesaid legislation. It transpired that the applicant went to Saudi Arabia and the United Arab Emirates on 24/8/1974 and stayed there until 9/7/87. when she returned to Cyprus and submitted the aforesaid application.
Applicant's stay in both the aforesaid countries was subject to time restrictions. In the light of that fact and of the authorities cited by the Court, the Court concluded that the rejection of the application, on the ground that the applicant had not been permanently settled abroad, 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 CL.R. 1482,
Matsas v. Republic (1985) 3 CL.R. 54,
Mavronichis v. Republic (l9S5 3 C.L.R. 2301,
Constantinides v. Republic (1986) 3 C.L.R. 882,
Ioannou v. Republic (1986) 3 CL.R. 1263,
Schinis v. Republic and Another (1988) 3 CL.R. 2692,
Ellina v. Republic and Another (198S) 3 C.L.R. 2651.
Recourse.
Recourse against the decision of the respondents whereby they refused to allow applicant to import a duty -free motor vehicle as a repatriated Cypriot.
A. Panayiotou, for the Applicant.
Y. Lazarou, 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 her 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 17.11.1987 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 her case does not fall within the provisions of the Law and relevant regulations on the ground that her 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 her motor car, Mercedes 500 SEL under Reg. No. 414V86.
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 she 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. 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 and Another (1988) 3 C.L.R. 2692 , and Revecca Ellina v. The Republic and Another (1988) 3 C.L.R. 265.
The salient facts of the present case shortly are the following:
Applicant went to Saudi Arabia and the United Arab Emirates on 24.8.1974 in order to join her husband who took up employment there and she stayed there until 9.7.1987 when she returned to Cyprus in order to settle permanently. She went to Saudi Arabia and the Emirates with her children who attended school there. The said applicant in those countries was subject to time restrictions as it appears from the photo copy of the pages of her passport which form part of exhibit 1 which is the relevant file of the administration.
Counsel for the applicant contended that applicant has 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 stress on the fact that the intention of applicant when she went to those countries was to settle there permanently.
The question which poses for consideration is whether the applicant settled abroad permanently for a continuous period of at least 10 years before she returned to settle permanently in Cyprus.
Permanent settlement is a question of fact and has to be decided on the facts of each particular case.
In the case of Matsas v. The Republic (supra), A. L.oizou, J., (as he then was) stated the following at p. 61:-
"To my mind permanent settlement carries with it the notion of a real or permanent home and should be distinguished from the notion of ordinary residence."
In the case of Ioannou v. The Republic (supra), Pikis, J., stated at p. 1266:-
"The question that must be answered is whether 10 years stay in a foreign county immediately qualifies the stayer as a permanent settler in that county for the purpose of the Order. I think not. The concept of permanent settlement is not tied to the length of stay but to the element of permanence associated with physical stay".
The facts of the Ioannou case are more or less similar to the facts of the case in hand. In that case the applicant stayed in Saudi Arabia from 1968-1982. He went there pursuant to a contract of employment with a Greek construction company. His recourse was dismissed that he had not permanently settled in Saudi Arabia on the ground inter alia that non- Moslems have no right to settle in that country.
In the case of Ellina v. The Republic (supra), A. Loizou, P. pointed out 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.
With respect, I agree and I adopt the reasoning of these cases.
The applicant's settlement abroad in the present case was temporary as she was only allowed into Saudi Arabia and the United Arab Emirates so that she could be near her husband who was in these countries for a specific and limited purpose, namely, to work, and she has not been allowed by those counties to settle therein permanently.
The question which poses for determination is whether in the light of the aforesaid cases and on 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 she went to Saudi Arabia and the United Arab Emirates who joined her husband who was working there, i.e. that she intended to settle permanently, but also whether the countries in which the applicant claims to have so settled permanently have allowed her to remain therein as a permanent settler. In the present case the receiving country did not allow applicant to remain therein as a permanent settler. Her stay from 24.8,1974 until 9.4.1987 was temporary because she went there to join her husband who was working there. Further, her stay was subject to time restrictions and non- Moslems 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 costs.