PO (Points based scheme: maintenance: loans) Nigeria

Factual and Procedural Background

The Appellant, a national of Nigeria, appealed to the Tribunal against the decision of the Respondent dated 21 March 2009, which refused him leave to remain in the United Kingdom as a Tier 1 (Post Study Work) Migrant. An immigration judge initially dismissed the appeal. The Appellant subsequently sought and obtained an order for reconsideration, bringing the matter before the Tribunal.

The core factual issue concerns the Appellant's attempt to satisfy the maintenance requirements under the points based immigration scheme. Specifically, the Appellant submitted bank statements showing a balance below the required £800 but claimed an overdraft facility that would allow withdrawal of the required amount. The relevant immigration rules and guidance require applicants to demonstrate that the required funds are available at the time of application, supported by documents dated no earlier than one month before the application.

Legal Issues Presented

1. Whether the Appellant met the maintenance requirement under the immigration rules by relying on an overdraft facility rather than showing the required balance in his bank account at the time of application.
2. Whether the Appellant could rely on guidance provisions concerning loans introduced after the date of his application.
3. Whether an applicant may satisfy the maintenance requirement by demonstrating an agreement to obtain a loan rather than showing the relevant sum credited to the bank account.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that although his bank balance was below £800, he had an overdraft facility that allowed him to withdraw an additional £800 if required.
• He relied on submissions that the maintenance requirement could be satisfied by showing an agreement with a lender to draw the required funds, referencing the term "loan" as set out in the current guidance.
• It was contended that an applicant need not show possession of the required sum but could rely on arrangements to access such funds.

Respondent's Arguments

• The Respondent maintained that the applicable guidance at the time of the application required the applicant to show the required funds actually credited to the bank account.
• The reference to loans in the guidance was a new feature effective after the Appellant's application date and therefore not applicable.
• The Appellant could not selectively rely on parts of different versions of the guidance that were not contemporaneously applicable.
• Evidence must demonstrate the required balance in the account, not merely an agreement to obtain a loan.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Tribunal emphasized that compliance with the immigration rules requires adherence to the guidance in force at the date of the application. Since the Appellant’s application was made before 31 October 2008, the guidance permitting loans as maintenance evidence, effective from 31 March 2009, was inapplicable.

The Tribunal rejected the argument that an agreement to obtain a loan could substitute for showing the required funds actually credited to the bank account. The rules require that the balance must always be at least the specified amount (£800), and documents failing to show this balance do not satisfy the maintenance requirement.

Although the most recent guidance allows evidence of maintenance through loans, it still requires the funds to be credited to the account. The Appellant’s reliance on an overdraft facility without the requisite bank balance was insufficient.

The Tribunal noted that while an email from the United Kingdom Border Agency suggested loans have always been admissible, this relates only to funds actually in the account, not to agreements to borrow funds.

Consequently, the Tribunal upheld the Immigration Judge's decision, finding no error of law in dismissing the appeal.

Holding and Implications

The Tribunal's final decision is TO DISMISS THE APPEAL.

The direct effect is that the Appellant’s application for leave to remain as a Tier 1 (Post Study Work) Migrant remains refused. The decision confirms that applicants must satisfy the maintenance requirement by showing the required funds are present in their bank accounts as per the guidance applicable at the time of application. No new precedent was established beyond affirming the correct application of existing rules and guidance.