All applications under the Points Based System (“PBS”), a scheme which combines both highly skilled and employer-sponsored applications, share one common feature – the maintenance requirement. The maintenance requirement has proven to be very contentious in practice and has resulted in many refusals. All applicants must prove that they will be able to maintain themselves in the UK by providing evidence of being in possession of an appropriate level of funds. For Entry Clearance applicants the minimum level has been set as £2800 and for in country applications £800. An additional £1600 and £533 respectively is required for each dependant included in an application. Funds must be present in a bank account for 90 days and the balance can never drop below the required level.
Numerous policy guidance documents were published by the UK Border Agency attempting to provide detailed explanations as to the source and quality of evidence of the maintenance funds. Notwithstanding this however the Asylum and Immigration Tribunal has been the forum for many disputes in this regard.
The explanation used by the UK Border Agency (“UKBA”) to describe the funds was “the evidence of maintenance must be of cash funds in the bank (this includes savings accounts and current accounts even if notice must be given), loan of official financial or government sponsorship available to the applicant”. A question frequently asked by clients is whether an overdraft facility can amount to “cash funds available on the applicant’s bank account”. Unfortunately, despite a careful reading of the policy guidance the position of the UKBA was not clear. In financial terms an overdraft which is allowed by a bank, can be classed as a short-term loan and as such should fall into the above definition. However the Immigration and Asylum Tribunal in the case of PO (Points based scheme: maintenance: loans) Nigeria [2009] UKAIT 00047 clarified that bank statements provided as evidence of maintenance funds must always show a positive balance which meets, or is above the required level. Overdraft is a deficit in a bank balance and therefore cannot be used as a source of maintenance funds. Further, the Tribunal has asserted that the UKBA would not investigate whether the money represents applicant’s own savings or borrowed money, confirming that loan funds are acceptable, as long as the loan has already been credited to the applicant’s account. Merely having a loan agreement, without the funds transfer will not suffice.
The above interpretation was relevant where the word “loan” was used by the UKBA in their published policy guidance. However, since 6th April 2010 new guidance documents have been published and loans were removed from the examples of acceptable funds. It is yet to be seen whether the ruling reached in PO (Points based scheme: maintenance: loans) Nigeria [2009] UKAIT 00047 is now outdated with regards to loan funds. It seems that in the light of the general and overarching rule dictating literal application of the policy guidance in all Points Based Scheme applications, it is likely that this time the Tribunal will decide that loans cannot be relied upon, especially given that the word “savings” appears more often in the policy guidance and the word “loan” removed entirely.
The Asylum and Immigration Tribunal has reiterated yet one more basic rule. All applications will be considered against policy guidance in place on the date that the application was made. Arguing that previous or future guidance should apply simply because it is more favourable to the client will not win the case. The date of application, as defined by the Immigration Rules will determine the law in force and therefore eligibility for leave to enter or remain under one of the PBS categories.
