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STOP PRESS – JA (meaning of “access rights”) India [2015] UKUT 00225 (IAC)
JA (meaning of 'access rights') India [2015] UKUT 00225 (IAC) Another case showing the natural link between immigration and family law. In this instance, the definition of access rights, which is not defined in the immigration rules and no longer used in the family court. Appendix FM provides an avenue for parents to stay with their children in the United Kingdom in some circumstances. Condition E-ECPT.2.4 states- (a) The applicant must provide evidence that they have either- (i) sole parental responsibility for the child; or(ii) access rights to the child; and (b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child's upbringing. However, there have been no use of the word 'access' in family law since the introduction of the Children Act 1989. The recent decision of JA (meaning of "access rights") India [2015] UKUT 00225 (IAC) has confronted the issue. In JA, the refusal letter of the Appellant stated he had: "not shown that you have access rights to your children only indirect contact. As a result of this you are unable to take an active role in their upbringing. Your telephone calls and letters can continue unchanged from overseas as can your child maintenance payments and any contact you have with the children’s school. As such, you fail to meet the requirements of E-LTRPT 2.4." In JA, the court said "where the Immigration Rules are silent as to interpretation, it may be necessary to refer to the Children Act 1989 (as amended) and other family legislation in order to construe those parts of the Rules which provide a route to entry clearance or leave to remain as a parent" (Headnote 1).The court held that "access rights" can include indirect and direct contact between a parent and child (paragraph 11). This could be shown either by court order or agreement between the parties (paragraph 15). Once satisfied "that a parent has "access rights", an appellant must still prove that he/she "is taking and intend to continue to take an active role in the child’s upbringing" (paragraph E-LTRPT.2.4 (a) (ii)). Whether he/she will be able to do so will depend upon the evidence rather than the nature of the "access rights." However, it is likely to be unusual that a person having only "indirect" access rights will be able to satisfy this provision. In some cases, Tribunals may need to examine the reasons why the Family Court has ordered "indirect" rather than "direct" access (Headnote 4)". The judgment provides useful guidance as to the interpretation of E-ECPT.2.4 and the impact decisions in the family court can have on the tribunal.
