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 6^th 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.

Part 8 of the Immigration Rules governs “family migration” into the UK. Those provisions prescribe requirements that must be met by family members if they wish to joint their relatives who are present and settled in the UK. In all applications made under this part of the Immigration Rules applicants must prove that they will have sufficient financial resources so as not to become a burden on public funds. In practice this means that people who wish to obtain permission to enter the UK as fiancés, spouses, civil partners, unmarried partners, or other dependant relatives must prove that they will not need to resort to social security benefits.

In most cases the evidence of the financial situation of a UK based sponsor is sufficient to satisfy the UK Border Agency that after arrival in the UK an applicant would be maintained appropriately. In addition, an applicant’s personal resources will be taken into account in assessing his or her ability to support himself or herself in the UK. Applicants can also present evidence relating to their prospects of finding appropriate employment in the UK, once allowed to work by the immigration authorities. However, the problems arise where the applicant’s and their sponsor’s resources are quite limited. The following scenarios may occur:

1. Parties have no savings and the Sponsor’s income is low.

   The Asylum and Immigration Tribunal looked into the level of funds required in more detail in the case of KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065. The question raised by the Tribunal was what income level is “adequate” for the purposes of the Immigration Rules and in particular in the context of a Spouse visa application. It was decided that the minimum level of funds available to a couple should be no less than that of the income support level for a couple. At the time if writing this was £102.75. It follows that low income should not automatically result in the refusal of an application, but it is important to prove that it will be sufficient for the couple and they will not need to seek help from the public purse.

2. Sponsor entire income comes from benefits.

   The fact that the Sponsor is in receipt of benefits does not automatically preclude a successful application for a visa for his or her partner. The Immigration Rules clarify that Sponsors are entitled to benefits in their own right and it is the applicant who cannot be in receipt of benefits. If the applicant’s arrival in the UK would cause an increase in a sponsor’s entitlement to benefits, this would be regarded as recourse to public funds which is not permitted.

3. Sponsor has no independent income and is himself or herself supported by a 3^rd party.

   The Immigration Rules in their current version have been construed to suggest that applicants and their sponsors have to support themselves, from their own resources. Third party support was not allowed AM (3^rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058. However, on 16^th December 2009 the Supreme Court decided that such interpretation of the rules is not consistent with the purpose of those provisions, which is to ensure an appropriate standard of living for the immigrants and to protect the public funds. The Court decided that applicants can rely on funds provided by third party (family or friends) as long as it is a sufficiently reliable source of income. The burden will be on the applicants to provide evidence, which would persuade the decision makers that the support is not less reliable than income from employment and therefore could prevent the recourse to public funds.

In all cases the assessment whether an applicant meets the maintenance requirement is a complex exercise involving analysis of various factors, including expenditure and future prospects of earnings. It is however a very important factor, after the personal evidence of relationship, and will contribute to the success of a visa application under Part 8 of the Immigration Rules.