Supreme Court dismisses appeal against revocation of residence permit for alien whose marriage to Cypriot ended.

[*805] 1968 August 2

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Niki Chr. Georghiou,

and

Applicant,

The Republic of Cyprus, through

1. The Minister of Interior,

2. The Immigration Officer,

Respondents

(Case No. 25/68).

Alien - Nationality - Naturalization - Cyprus citizenship - Marriage a means of naturalization only when provided for by Municipal Legislation - Right of alien, married to a Cypriot citizen, to reside in Cyprus, after dissolution of the marriage – “Native” and “alien” for the purposes of the Aliens and Immigration Law, Cap.105.

Administrative Law - Administrative Decisions - Revocation - Revocation of a decision, based on wrong assumption granting to an alien permanent residence in Cyprus - A typical case where revocation of a previous administrative decision was warranted.

Constitutional Law - Constitution of Cyprus - Alien – Right of residence in Cyprus of an alien married to a Cypriot citizen after dissolution of marriage -Articles 2(7)(a), 13 and 14 of the Constitution, not applicable.

Constitutional Law - Constitutionality of Statutes - Constitution of Cyprus, Articles 32, 1.88(1)(4) and 198 - The Aliens and Immigration Law, Cap.105 in force by virtue of Article 188(1) - Nothing in such Law being in conflict with Articles 32 or 198 - Law to be applied modified, as per Article 188(4).

Ch. Kyriakides, for the Applicant.

A. Frangos, Senior Counsel of the Republic, for the Respondents.

JUDGMENT

The following Judgment was delivered by: -

TRLANTAFYLLID5S. J.: In this case the Applicant, complains against a decision, of1 Respondent 2 - who comes [*806] under Respondent 1 - communicated to her by means of a letter dated the 15th July, 1963 (see exhibit 1), to the effect that her stay in Cyprus, without a permit, is illegal, in view of the dissolution of her marriage to a Cypriot citizen - on the 31st May, 1968 - and that she should leave Cyprus, otherwise steps will be taken to expel her from Cyprus.

The Applicant's claim has been, in essence, that even if she were an “alien", in the sense of the Aliens and Immigration Law, Cap. 105, she is, in any case, entitled to permanent residence in Cyprus.

In my opinion, as the law stands at present, in Cyprus, the Applicant has to be regarded as an "alien", in the sense of the relevant definition in section 2(1) of Cap. 105, for the following reasons:

It is admitted, and not in dispute, that she was born in Greece; and that in 1967, she came to Cyprus as a Greek citizen. She married a Cypriot citizen, Christos Georghiou, of Limassol, on the 11th March, 1967, at Beirut; but, as at present advised, I cannot find that there is any legislation by virtue of which she may be deemed to have acquired, automatically, as a result of her marriage, the citizenship of her husband, i.e. Cyprus citizenship.

Nationality is a matter governed by a State's laws and marriage is a means of naturalization only when, and as provided for, by national legislation (see in this respect Oppenheim on International Law, 8th ed., vol. I, p. 654). [*807]

In Cyprus we do not have legislation providing yet for naturalization, through marriage, of an alien married to a Cypriot citizen. A relevant enactment which could bring this about is The Citizenship of the Republic Law, 1967 (Law 43/67), which has not yet come into effect.

After her marriage the Applicant ceased, for the time being, to be an "alien" under Cap. 105 and she became entitled to reside in Cyprus, inasmuch as she qualified to be regarded as a "native" in Cyprus, in the sense of the relevant definition in section 2(1) of Cap. 105.

But after her marriage was dissolved, on the 31st May, 1968, she could no longer be regarded as a "native" of Cyprus, and she has to be regarded, in the circumstances, as an "alien", for the purposes of Cap. 105.

It has been submitted by learned counsel for the Applicant - who has done very diligently his duty in a very difficult, for the Applicant, case -- that Cap. 105 has ceased to be in force as being inconsistent with Articles 32,

188 and 198 of the Constitution, when they are taken together.

I cannot accept this argument: I think Cap. 105 has continued in force, by virtue of the provisions of Article 188(1), and I find nothing therein which is in conflict with Articles 32 or 198; of course, it has to be applied modified, as per Article 188(4) like all other pre-Republic legislation.

I pass on, next, to deal with the Applicant’s alleged entitlement to permanent residence in Cyprus: [*808]

It has been argued by counsel for the Applicant that, in effect, there is a decision in force of Respondents granting to the Applicant permanent residence and that such decision is, in the circumstances, irrevocable. This argument has been based on a statement made, on the 15th June, 1968, by counsel appearing to-day for the Respondents, when he was appearing for the same Respondents in recourse 141/68, which was filed by the Applicant in the matter, again, of her residence; it was then stated (see exhibit 2) that it had been decided to allow the Applicant to stay in Cyprus as a permanent resident without any restrictions; and as a result 141/68 was withdrawn.

As counsel for Respondents has explained, he made the statement in question, on the 15th June, 1968, on the assumption that the marriage of the Applicant was still subsisting at the time.

I am quite satisfied from the documentary and oral evidence before me, which I do accept, that on the 15th June, 1968, the Respondents, and their counsel, were not aware of the fact of the dissolution of the marriage of the Applicant, and that they came to knew of this a few days before the letter of the 15th July, 1968 (exhibit 1) was written.

Once the Respondents came to know of the dissolution of the marriage of the Applicant, and that, consequently, she had ceased being a “native” of Cyprus, in the sense of Cap. 105, I think that they were, indeed, fully entitled to revoke their previous decision to treat the Applicant as entitled to reside in Cyprus; this was a typical case where revocation of a [*809] previous administrative decision was warranted (see Kyriakopoulos on Greek Administrative Law/, Nth ed., Vol. II, p.410).

Counsel for the Applicant has submitted, next, that by virtue of her marriage and for purposes of private international law the Applicant should he regarded as domiciled in Cyprus, even after her divorce. But, he that as it may, I do not think that this can affect either the question of nationality, or the question of her being an “alien”, for the purposes of Cap. 105, and, therefore, not entitled to reside in Cyprus without the permission of the authorities of the Republic.

Another argument advanced by counsel for the Applicant has been that she became, because of her marriage, a member of the Greek Community, under Article 2(7)(a) of the Constitution and that, therefore, as such, she is entitled to reside in Cyprus. I take the view that Article 2 deals with the classification into Communities of the citizens of the Republic and when it provides, in paragraph (7) (a), that a married woman shall belong to the Community to which her husband belongs, it makes such provision with regard only to married women who are citizens of the Republic: thus, Article 2(7) (a) is not applicable at all to the Applicant.

Lastly, in support of Applicant’s claim for a right of residence, her counsel has referred the Court to Article 13 of the Constitution. But, in my view, this Article has to be read together with Article 14 of the Constitution.

Article 13 of the Constitution provides about the freedom of movement in the Republic of “every person” and [*810] about the right of’ ’every person” to leave the Republic* On the other hand, Article 1U provides that no” citizen” shall he banished or excluded from the Republic; this clearly shows that aliens may be excluded from the Republic.

For all the foregoing reasons, I find that this Court cannot annul the sub-judice decision. This recourse is, therefore, dismissed.

Of course, the Applicant is still free to apply, as an alien, for an appropriate residence permit, and it is up to the authorities concerned to deal with such an application in the proper manner.

Regarding costs, I have decided not to make any order as to costs; this is a matter in which the Applicant was properly entitled to put her grievance before the Court for adjudication.

Application dismissed.

No order as to costs.