Babatunda & Ors v The Minister for Justice and Equality [2019] IEHC 759 (14 November 2019)

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

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

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;

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, a finding which led ultimately to a

deportation order issuing against Mr Babatunde by letter of 31st May, 2019. In arriving at

the decision to deport, the Minister concluded, inter alia, that:

• There was no family life between Mr Babatunde and Mr Obembe as Mr Babatunde

was not married to Mr Obembe’s mother and had not adopted Mr Obembe.

• No information or documentation had been submitted to show that Mr Babatunde

has any specialist skills which are currently in deficit in the labour market,

yielding the conclusion that his employment prospects are limited.

• Public policy and the interests of the common good in maintaining the integrity of

the asylum and immigration system and ensuring the economic well-being of the

State outweighed such aspects of Mr Babatunde’s case as leant against

• It would be open to Mr Babatunde’s family (individually or collectively) to relocate

to Nigeria to maintain family unity but deportation would not require such

• While it was accepted that it was in the best interests of the third and fourth

applicants to be raised by their parents, the decision to issue Mr Babatunde with a

deportation order would not become disproportionate by reference to its impact

• Issuing Mr Babatunde with a deportation order does not interfere with his right to

respect for his family life under Article 8 of the European Convention on Human

3. The applicants come now to court seeking, inter alia, a quashing of the deportation order

made against Mr Babatunde. They contend that the eight questions, identified in bold text

(1) Did the Minister err in concluding that no family life within the meaning of Art.8

4. Court’s Answer: ‘Yes’. 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;

rather “the existence or non-existence of ‘family life’ is essentially a question of fact

depending upon the real existence in practice of close personal ties”. Mr Babatunde

furnished undisputed evidence that he has lived with Mr Obembe since 2014 and been a

father-figure to him since that time; Mr Obembe also furnished an undisputed letter

stating that, inter alia, to him Mr Babatunde “is my Daddy”. In the face of this undisputed

evidence as to family life within the meaning of Art.8 ECHR, the Minister placed

impermissible emphasis on the absence of a formal legal relationship between Mr

Babatunde and Mr Obembe. In the context of personal and family relationships, the old

formalities are greatly crumbling, and new realities and relationships and diversely

blended forms of families presenting: decision-makers and decision-making must make

(2) Did the Minister err in failing properly to consider Mr Obembe’s rights pursuant to

5. Court’s Answer: ‘Yes’. The court recalls in this regard the observation of the European

Court of Human Rights in Balogun v. The United Kingdom (Application No. 60286/09),

para. 43, that “the totality of social ties between settled migrants…and the community in

which they are living constitutes part of the concept of ‘private life’ within the meaning of

Article 8”. Mr Obembe is an Irish citizen which would seem to place him in an even

stronger position in this regard. 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

(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?

6. Court’s Answer: ‘Yes’. It appears from the impugned decision that there was, e.g., 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 (albeit that there is some consideration of

relevant factors in the impugned decision), and no acknowledgement of any right to be

reared by the man he perceives to be his father. It is difficult to see how such an

approach can be reconciled (the court does not see that it can be reconciled) with, e.g.,

the type of assessment which Denham J. anticipates in Oguekwe v. Minister for Justice,

(4) Did the Minister act unreasonably in determining that the economic well-being of

7. Court’s Answer: Mr Babatunde worked as a physicist in Nigeria and, during the time that

he had permission to work here, did work here. Given this history, the court respectfully

does not see how it flows as a matter of logic that Mr Babatunde’s deportation was

necessary to maintain the economic well-being of the State. To the extent that this

involves (if it involves) the court getting into a consideration of the merits of the decision

that fall to the Minister to decide, a separate difficulty in any event presents which is that

the Minister in his decision expressly had regard to Mr Babatunde’s failure to supply

“information or documentation…to show that he has any specialist skills which are in

deficit in this State” and in this regard was deciding an application that was not before

him: Mr Babatunde was making submissions in the context of a proposed deportation

order; he was not applying for an employment permit (which latter application would

require him to demonstrate such specialist skills or experience).

(5) Did the Minister fail to conduct any, or any adequate, assessment of the best

8. Court’s Answer: ‘Yes’. Despite an abundance of evidence before the Minister as to Mr

Babatunde’s involvement in the upbringing of Mr Obembe, and of Miss Elizabeth and

Master Michael Babatunde, there is no assessment of their best interests in the manner

contemplated by, e.g., 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. (Jeunesse is referenced but no analysis of the type

contemplated thereby, let alone an analysis fitted to the particular facts before the

(6) Did the Minister err in law in failing to consider whether the children’s lifelong

9. Court’s Answer: ‘Yes’. As Denham J. observes in Oguekwe, para. 31, sub-para.11,

although an Irish-born child enjoys “the right to reside in the State, there may be a

substantial reason, associated with the common good, for the Minister to make an order

to deport a foreign national who is a parent of an Irish born child, even though the

necessary consequence is that in order to remain a family unit the Irish born child must

leave the State. However, the decision should not be disproportionate to the ends sought

to be achieved”. Those remarks have been partly overtaken by the decision of the

European Court of Justice in Ruiz Zambrano (Case C-34/09) [2011] ECR I-1177,

pursuant to which (para. 46) “Article 20 TFEU is to be interpreted as…[precluding] a

Member State from refusing a third country national upon whom his minor children, who

are European Union citizens, are dependent, [inter alia] a right of residence in the

Member State of residence and nationality of those children…in so far as such decisions

deprive those children of the genuine enjoyment of the substance of the rights attaching

to the status of European Union citizen.” However, Denham J.’s comments as to

proportionality continue to be good law. This being so, the Minister ought to have

considered, in particular, whether what has the potential to be a lifelong separation from

Master Obembe was proportionate to the end to be achieved. The failure to do so at this

time, when the family relationship within the meaning of Art.8 ECHR and the social ties

between Mr Babatunde were at their height, seems especially egregious.

(7) Is the Minister’s reasoning opaque to the extent that he has acted in breach of the

10. Court’s Answer: ‘No’. The Minister may have erred but the court does not see that he was

opaque in the manner in which he expressed his decision. Certainly the within application

has been brought/made without any obvious difficulty and the applicants have succeeded

on almost every point made. If the court applies, e.g., the standard identified by the

Murray C.J. in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701,

731, whereby the rationale underlying a decision must be discernible expressly or

(8) Was the Minister’s conclusion that the third and fourth applicants’ primary carer

11. Court’s Answer: ‘Yes’. Not only was it unreasonable, and not only does it appear to offend

the constitutional guarantee of equality, such a conclusion seems also to give cause for

offence to fathers like Mr Babatunde who, with his partner, appears, from the evidence, to

have been involved actively in the raising of the third and fourth applicants since they

were each born (a point accepted in the Examination of File, p.8). Mr Babatunde gives

every appearance of being, like his partner, a primary carer of the third and fourth

applicants, a factor that would obviously be of significance in any proportionality

12. The court is mindful that Mr Obembe has reached adulthood since the impugned decision

was made. However, in light of the above errors, the decision that was made cannot

stand and matters ought now to be considered anew. The court will therefore grant the

order of certiorari sought and remit this matter to the Minister for fresh consideration.

Result: In favour of the applicants.

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