Kunle not to be deported until baby son’s appeal heard

NIGERIAN student Olukunle Elukanlo cannot be deported from this country until the High Court hears his infant son’s legal challenge to his father’s deportation.

A High Court judge yesterday granted an injunction restraining the deportation of the 21-year-old Nigerian until the court considers a legal challenge to it on behalf of his four-month-old son.

But Kunle, as he is known, himself failed in his bid to legally challenge his deportation.

Ms Justice Elizabeth Dunne yesterday granted the baby boy leave to bring a judicial review of the Minister for Justice’s decision in March of this year to deport Mr Elukanlo. The child cannot be named by order of the court.

Mr Elunkanlo was originally deported in March 2005 but after public demonstrations and appeals on his behalf from classmates at Palmerstown Secondary School, he was allowed back to sit his Leaving Certificate.

In her judgment, Ms Justice Dunne said it may well be considered that it is not open to a child not born at the time of making of a particular order or decision to challenge it, but in this case, she said the child at the centre of the decision may have such a right.

There is at least, the judge said, an arguable issue to be tried as to whether or not a child who is not born at the time of the making of the decision to deport is entitled to have its rights considered.

Ms Justice Dunne said such a child has rights which have to be safeguarded and considered. The baby, she said, is entitled to argue that the Minister for Justice did not consider all of his rights in reaching the decision to deport Kunle in March this year.

The judge said a consultant child psychiatrist had said in an affidavit before the court that for the child to have a meaningful relationship with his father, he should see him on a daily or alternate-day basis. If Mr Elukanlo was deported, the doctor said the child would not be in a position to develop an attachment to him.

In those circumstances, the judge said the balance of convenience lies in favour of the baby.

But she said Mr Elukanlo failed in his own bid to bring a legal challenge to his deportation. The judge referred to the “lack of candour” on his part.

She said he was aware of the relevance of his relationship with an Irish girl which resulted in the pregnancy. She said he chose not to make that information known during the asylum process.

She said he was under an obligation to make the information known to the Minister for Justice and he could have done so without revealing the identity of his girlfriend and her family. She said he only “disclosed his hand” after the deportation order was made.

Making the decision to deport, the judge said the minister had carried out “a balancing exercise” and had clearly considered Mr Elukanlo’s rights as a father and decided it was not sufficient to tip the balance in favour of the Nigerian.

The judge said she could see no basis upon which leave could be granted to Mr Elukanlo to bring judicial review proceedings.