Babatunda v The Minister for Justice and Equality

JurisdictionIreland
JudgeMr Justice Max Barrett
Judgment Date14 November 2019
Neutral Citation[2019] IEHC 759
Docket Number[2019 No. 421 JR]
CourtHigh Court
Date14 November 2019

[2019] IEHC 759

THE HIGH COURT

Max Barrett

[2019 No. 421 JR]

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

BETWEEN
RAPHAEL OLAOLUWA OYEDELE BABATUNDE, OLASUBOMI OBEMBE (A MINOR SUING BY HIS FATHER AND NEXT FRIEND ENIOLA EBONY BABATUNDE), ELIZABETH MERCY BABATUNDE (A MINOR SUING BY HER MOTHER AND NEXT FRIEND ENIOLA EBONY BABATUNDE) AND MICHAEL BABTUNDE (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND ENIOLA EBONY BABATUNDE)
APPLICANTS
– AND –
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENTy

Deportation – Family life – Economic well-being of the State – Applicants seeking a quashing of a deportation order – Whether the respondent erred in concluding that no family life within the meaning of Art.8 ECHR existed between the first applicant and the second applicant

Facts: The applicants, Mr Babatunde, Mr Obembe and the minor children of Mr Babatunde, came to the High Court seeking, inter alia, a quashing of the deportation order made against Mr Babatunde. They contended that eight questions arose from the decision of the respondent, the Minister for Justice and Equality, to deport: (1) Did the Minister err in concluding that no family life within the meaning of Art.8 ECHR existed between Mr Babatunde and the second applicant? (2) Did the Minister err in failing properly to consider Mr Obembe’s rights pursuant to Art.8 ECHR? (3) Did the Minister err in law in issuing Mr Babatunde with a deportation order without conducting any assessment of the impact which this would have on Mr Obembe’s rights under the Constitution, in particular Art.40.3? (4) Did the Minister act unreasonably in determining that the economic well-being of the State required Mr Babatunde’s deportation? (5) Did the Minister fail to conduct any, or any adequate, assessment of the best interests of the children? (6) Did the Minister err in law in failing to consider whether the children’s lifelong separation from Mr Babatunde was proportionate? (7) Is the Minister’s reasoning opaque to the extent that he has acted in breach of the applicants’ right of access to the courts? (8) Was the Minister’s conclusion that the third and fourth applicants’ primary carer was their mother unreasonable?

Held by Barrett J that: (1) it is clear from the decision of the European Court of Human Rights in K and T v Finland (Application No. 25702/94), para. 150 that the existence of family life within the meaning of Art.8 is not established by proof of biological relationship; (2) the Minister (a) found there to be no family life within the meaning of Art.8 ECHR between Mr Babatunde and Mr Obembe, and (b) as a result, did not assess the impact which Mr Babatunde’s removal from Ireland would have on Mr Obembe’s rights under Art.8 ECHR, effectively placing Mr Obembe in a position where he had to choose between (I) a private life in Ireland and (II) family life within the meaning of Art.8 ECHR; (3) it appeared from the impugned decision that there was no consideration of Mr Obembe’s circumstances as Mr Babatunde’s effective step-son, no consideration of his personal circumstances insofar as they related to his relationship with Mr Babatunde, no express regard to Mr Obembe’s constitutional right under Art.40.3.1° to have his welfare and best interests considered, and no acknowledgement of any right to be reared by the man he perceived to be his father; (4) given that Mr Babatunde worked as a physicist in Nigeria and, during the time that he had permission to work in Ireland, did work, the court did not see how it flowed as a matter of logic that Mr Babatunde’s deportation was necessary to maintain the economic well-being of the State; (5) there was no assessment of the best interests of the children in the manner contemplated by the European Court of Human Rights in Jeunesse v The Netherlands (Application No. 12738/10) or by the High Court in F.B. v Minister for Justice and Equality (No. 2) [2018] IEHC 716; (6) the Minister ought to have considered whether what had the potential to be a lifelong separation from Master Obembe was proportionate to the end to be achieved; (7) the court did not see that the Minister was opaque in the manner in which he expressed his decision; and (8) the Minister’s conclusion was unreasonable and appeared to offend the constitutional guarantee of equality.

Barrett J held that, in light of the above errors, the decision that was made could not stand and matters ought to be considered anew. The court therefore granted the order of certiorari sought and remitted this matter to the Minister for fresh consideration.

Order granted.

JUDGMENT of Mr Justice Max Barrett delivered 14th day of November, 2019.
1

Mr Raphael Babatunde is a Nigerian national who has resided in the State since 2013. At present, he does not have permission to work here. The second applicant, Mr Obembe, is an Irish citizen and was, at the time of the impugned decision, a minor; he has since attained adulthood. Mr Babatunde is in a long-term cohabitation relationship with Mr Obembe's mother and stands in loco parentis vis-à-vis Mr Obembe. The third and fourth applicants, both of whom are Nigerian nationals, are the minor children of Mr Babatunde; they also live with Mr Babatunde and Mr Obembe.

2

Mr Babatunde used to have permission to reside in Ireland by virtue of a since dissolved marriage to a Polish national, which marriage – notwithstanding that it subsisted at law, that there was a child of the marriage, and that it endured for 4½ years before ending in divorce – was but a marriage of convenience,...

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1 cases
  • BMAM v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 11 December 2020
    ...was made by the Respondent in this matter, nor does the Applicant make that suggestion. Babatunda v. Minister for Justice and Equality [2019] IEHC 759, can be distinguished from the facts of this case as it relates to a different specific issue of the Respondent determining that the economi......

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