Judge says deportation order gives ‘cause for offence’ to some fathers
Nigerian man is primary carer to his two children and partner’s Irish-born son, court hears
Mr Justice Max Barrett: quashed the deportation order issued by the Minister for Justice. Photograph: Collins
A judge has said a deportation order for a Nigerian man who seems to be the primary carer of his two biological children and a “father figure” to his partner’s Irish citizen son, gave “cause for offence” to fathers.
The man had worked as a physicist in Nigeria and has lived here since 2013 but had failed to get permission to work here. He has two children who are Nigerian nationals.
He and his children have lived for some years with his partner and her son, an Irish citizen who recently turned 18.
The man previously had permission to reside here arising from his marriage to a Polish national, which has since dissolved.
Mr Justice Barrett said, notwithstanding the marriage subsisted at law, that there was a child of the marriage and it lasted for four and a half years, it was found to be a “marriage of convenience”. That led to a deportation order being issued to the man last May.
The Minister had found there was no family life between the man and his new partner’s son as the man was not married to the boy’s mother and had not adopted the boy.
The Minister also held the man failed to provide documents showing he has any specialist skills currently in deficit in the labour market, deportation was in the interest of public policy and it would be open to the man’s family to relocate to Nigeria individually or collectively to maintain family unity, and the man’s deportation order was not disproportionate.
The man and all three children challenged the deportation order on grounds including alleged breach of family life rights under Article 8 of the European Convention on Human Rights.
In his judgment, Mr Justice Barrett found “egregious” failure to consider whether the children’s lifelong separation from the man was proportionate. He held the Minister unreasonably concluded the primary carer of the man’s two biological children was their mother.
That conclusion appeared not just to offend the constitutional guarantee of equality but to “give cause for offence” to fathers like this man who, with his partner, appears to have been actively involved in raising the two children since their birth. The man gives every appearance of being, like his partner, a primary carer of his two children, he said.
The Minister also erred in concluding there was no family life between the man and his partner’s son, he held. The boy has lived with the man for five years, regards him as a father figure and described him as “my Daddy”.
In the face of that “undisputed evidence” as to family life within the meaning of Article 8, the Minister placed “impermissible emphasis” on the absence of a formal legal relationship between the man and boy.
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”, he said.
“Decision-makers and decision making must make due allowance for life.”
The Minister also erred in not assessing the impact of the man’s removal from Ireland on the rights of his effective stepson under Article 8, the boy’s personal rights under Article 40.3 of the Constitution and the best interests of all three children in the manner contemplated by the European Court of Human Rights.
The judge also said he could not see how deportation was necessary to maintain the economic well-being of the State.
The man had worked as a physicist in Nigeria and, during the time he had permission to work here, did work here.