JA v The Secretary of State for the Home Department

“Access rights” in paragraph E-LTRPT.2.4 of the Immigration Rules include both direct contact and indirect contact, such as telephone calls and letters. They may also arise through an informal parental agreement; a court order is not indispensable.

Meeting the access-rights requirement is distinct from proving an active and continuing role in the child’s upbringing. That issue depends on the evidence. Indirect contact will often make active involvement difficult to prove, but it cannot be rejected solely because it is not face-to-face contact.

The appellant, an Indian national, sought further discretionary leave to remain based on his relationship with his British children. The Secretary of State refused the application on the basis that a county court order permitted only indirect contact, so that he no longer had access rights and could not take an active role in the children’s upbringing.

The First-tier Tribunal dismissed the appeal in a determination promulgated on 11 September 2014. It held that indirect contact by telephone calls, letters and gifts could continue from India and did not amount to access rights for paragraph E-LTRPT.2.4 of the Immigration Rules.

The central issue before the Upper Tribunal was whether indirect contact under a court order constituted “access rights” and, if so, whether that could support the separate active-role requirement.

1. Appeal allowed. The First-tier Tribunal erred in law by treating only face-to-face contact as access capable of satisfying paragraph E-LTRPT.2.4(a)(i) of the Immigration Rules. Its decision was set aside and remade.

2. Where the Immigration Rules do not define family-law expressions, family legislation may assist their construction. The Rules have sought to reflect changes in that legislation. The Tribunal therefore considered the former terminology of access and contact, and the current child arrangements regime under the Children Act 1989 and the Children and Families Act 2014.

3. The wording “access rights” draws no distinction between direct and indirect access. It is capable of covering contact by telephone, letters and similar means, as well as time spent in person with a child. Had the Rules intended to confine access rights to face-to-face contact, they could have said so expressly.

4. Access rights may also exist without a court order. Consistently with the no-order principle in section 1(5) of the Children Act 1989, parental access may be arranged informally by agreement.

5. Access rights alone do not establish that a parent is taking, and intends to continue to take, an active role in upbringing. That is an evidential question. A parent with only indirect access may find the requirement difficult to meet, particularly without involvement in day-to-day care or important decisions. In an appropriate case, the Tribunal may need to consider why the Family Court ordered indirect rather than direct access.

6. On the respondent’s case-specific concession, once the appellant’s indirect contact order was recognised as evidence of access rights, he also satisfied the active-role requirement. His appeal against the decision of 10 May 2014 was allowed.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s determination, and remade the decision in the appellant’s favour.

• First-tier Tribunal: dismissed the appeal in a determination promulgated on 11 September 2014, holding that indirect contact did not amount to access rights under paragraph E-LTRPT.2.4 of the Immigration Rules.