OA092032014

The Entry Clearance Officer (ECO) appeals the decision of First-tier Tribunal Judge McCartney, promulgated on 18 September 2015, allowing an appeal against a decision to refuse the respondent leave to enter the United Kingdom as a parent. Permission to appeal was granted by First-tier Tribunal Judge Frankish on 11 February 2016.

The respondent sought leave to enter the United Kingdom under EC-PT1.1 of Appendix FM to the Immigration Rules in order to exercise the right of access to his 7 year daughter who was in the care of a local authority following the death of her mother. That application was refused on 10 July 2014 as it was said that the respondent had not met the eligibility, financial or English language requirements of the Rules.

In relation to eligibility, the ECO stated that the respondent had provided no evidence that he had an active role in the child's upbringing and reference was made to an interim care order obtained by the local authority concerned. Concern was raised as to why the respondent's three siblings in the United Kingdom had not assisted in the care of his daughter.

With regard to the financial requirements, these were not met because the respondent was relying on third party support from his brother. The respondent was said not to be exempt from the English language requirement and it was noted by the ECO that he had not passed the required English language test. The ECO considered whether there were exceptional circumstances but declined to grant leave to enter on this basis, noting that the respondent had never met his daughter and had no involvement or contact with her since she was born.

In appealing the ECO's decision the respondent argued that the requirements of the Rules were met; raised the best interest of the child concerned and relied on Article 8 ECHR, outside the Rules.