The High Court has allowed an Irish citizen baby to challenge a decision not to revoke the deportation order against his Nigerian father, while rejecting the father’s own application for leave to pursue judicial review.
Olukunle Elukanlo came to Ireland in February 2002 and unsuccessfully sought asylum. He was deported to Nigeria in March 2005 but was later readmitted for six months to complete his Leaving Certificate.
During 2005 he entered a relationship with Irish citizen Alison Hughes, who became pregnant. Mr Elukanlo did not disclose the pregnancy when making submissions seeking permission to remain, although his solicitor had advised him that it was relevant. He said the decision reflected concerns about Ms Hughes’s privacy and possible media attention.
A fresh deportation order was made in March 2006. After Mr Elukanlo’s solicitors informed the Minister that the child’s birth was imminent, the Minister reconsidered the matter but declined to vary or revoke the order, stating that the common good required it to remain in force.
Ms Justice Dunne held that Mr Elukanlo had rights under Article 8 of the European Convention on Human Rights as the prospective father of a non-marital child, although those rights were at the lower end of the scale because the child had not yet been born and the parents had not cohabited. The judge found that the Minister had balanced those rights against the State’s interest in controlling immigration and had given Mr Elukanlo ample opportunity to make representations.
The court also criticised his failure to disclose the pregnancy earlier, finding that the information was material and could have been provided without identifying Ms Hughes.
The position of the child was different. Born later in March 2006 and an Irish citizen, he had arguable constitutional and Convention rights of his own. The court held there was an arguable case that those rights had not been considered when the Minister made the March 15 decision.
Leave was therefore granted to the child, and deportation was restrained pending consideration of his challenge.