Decisions providing guidance on the demands of the points based system are few and far between. The Asylum and Immigration Tribunal's decision in PO (Points based scheme: maintenance: loans) Nigeria [2009] UKIAT 00047 regarding the relevance of loans to the maintenance requirements of the Immigration Rules is therefore valuable.

As is now familiar from cases such as NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025 - people who wish to "switch" from leave to remain as a student to leave to remain as a Tier 1 (Post Study Work) Migrant have to show that they have £800, and that (unless their applications were made before 31 October 2008) they have had this much money for at least three months. The same requirement must be met by anyone seeking to switch into leave to remain as a Tier 1 (General) Migrant.

PO had lost his appeal against the refusal of his application for an extension of stay as a Tier 1 (Post Study Work) Migrant because an Immigration Judge had not been satisfied that he had the necessary amount of money at the time of his application and that he had had it for three months.

Applying for reconsideration PO said that because he had an overdraft facility on his current account which effectively meant that he had at all relevant times had more than £800 at his disposal - he had met the requirements of the Immigration Rules.

In support of this argument PO pointed out that guidance issued by the United Kingdom Border Agency (the "UKBA") - incorporated into the Immigration Rules by Rule 245AA - indicated that it was acceptable to prove the existence of the funds specified in the Immigration Rules by showing that money which had been lent to the applicant was in his or her account.

PO said that there was effectively no difference between a loan and an overdraft facility.

This argument is interesting both in itself and also because in the past - (and they still do this in non-points based system family settlement cases) - the UKBA and its predecessors have frequently refused applications by saying the fact that a lot of money is in a sponsor's bank account is only because he's borrowed it from someone. It is said that the funds have been "artificially augmented" - and doesn't represent the sponsor's actual ability to maintain either himself or his family members.

The Tribunal did not accept the overdraft argument though. They said that the words used in the guidance in relation to bank statements:

"the balance must always be at least £2,800 or £800, as appropriate"

- clearly indicated that documents which failed to show a balance at that level were not evidence satisfying the requirements of the Rules. So the Rules required that the money took the form of a credit balance of at least the stipulated amount.

The Tribunal did however make it clear that as long as such a balance was evident from documents produced by an applicant - it did not matter where the money had come from, and it could have been loaned to the applicant.

 

It's impossible to resist pointing out that by the rationale adopted by the Tribunal a person could apparently open two accounts - the first of which provided him with an overdraft of say £1000 - and simply transfer £900 of this to the other account. Provided he left that second account alone for a three month period he would satisfy the requirements of the Rules.