Case No: C1/2009/2115
Neutral Citation Number: [2011] EWCA Civ 849
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BLAKE)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 28 June 2011

Before:

LORD JUSTICE MUMMERY
LORD JUSTICE RIMER
and
LORD JUSTICE SULLIVAN

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Between:

	THE QUEEN ON THE APPLICATION OF
ADEYEMI-DORO
	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondents	

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Mr O Ogunbiyi (instructed by Margaret Olusegun Solicitors) appeared on behalf of the Appellant.

Mr T Eicke QC (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Judgment

Lord Justice Sullivan:   

1.	This is an appeal against the order dated 23 September 2009 of Blake J, refusing the appellant's renewed application for permission to apply for judicial review of the respondent's decision initially made on 9 February 2009 and upheld on subsequent reconsiderations by the respondent, most recently on 23 June 2011, to refuse the appellant's application which was made on 9 February 2009 for leave to remain in the United Kingdom as a Tier 1 (post study work) migrant.

2.	The decision letter said:
 
"You have claimed 10 points for funds under Appendix C of the immigration rules, but the documents you have provided do not demonstrate that you are in possession of £800/have been in possession of £800 for the period specified in the guidance.  The Secretary of State is therefore not satisfied that you have achieved 10 points under Appendix C of the Immigration Rules."

3.	When refusing the appellant's application for permission to apply for judicial review, Blake J said that not only had the appellant not complied with the Tier 1 rules for the three month period prior to the application, she had not complied with them on the day of the application itself (see paragraph  9 of the judgment dated 23 September 2009).

4.	The lawfulness of the requirement that the required level of funds ‑‑ £800 in this case ‑‑ should have been held for a three-month period prior to the date of the application was subsequently considered by this court in SSHD v Pankina & Ors [2010] EWCA Civ 719 ("Pankina").  The court decided that the requirement that applicants should have been in possession of £800 for the three-month period prior to the date of their application was not part of the Immigration Rules and was therefore unlawful.  The rules merely required applicants to have had £800 on the day of the application.

5.	In response to Pankina, the respondent issued a policy document dated 22 November 2010.  In that policy document the respondent said that, subject to certain conditions, she would reconsider applications for leave to remain under, inter alia, Tier 1.  Initially the policy applied only if the applicant was lawfully in the United Kingdom, which at the time the appellant's application for reconsideration was initially rejected she was not.  That requirement was subsequently removed, but the policy contains a further requirement which is of critical importance for the purposes of the present appeal.  The requirement is as follows: 

"Migrants are required to demonstrate that they hold the required level of funds at the closing balance on any one day during the one-month period prior to the date of application."

6.	Thus the position now is that the appellant is entitled to succeed either under the rules if she had funds of £800 on 9 February 2009 (the date of her application) or under the policy if she had funds of £800 on any one day during the one month prior to the date of her application.

7.	Unfortunately for her, in my judgment she does not qualify under either the rules or the policy.  Her bank statements from 18 November 2008 to 17 February 2009 were submitted in support of her application and were before Blake J.  Those statements show that the appellant was paid a monthly salary of £1,639, £1,567 and £1,451 in November and December 2008 and January 2009 respectively.  She was, however, in effect living on an overdraft of £1,050.  The overdraft limit is set out at the head of the bank statements.  That limit of £1,050 was on various occasions over the three month period exceeded by relatively small amounts.  However, at no time during the three month period covered by the bank statements and at no time during the one month period before the application or on the date of the application itself did the appellant have £800 in her account.  On the date of the application she was overdrawn in the sum of £2,217.39.  During the previous month the maximum credit balance in the account was £397.20 and over the three months covered by the accounts the maximum credit balance was £524.83.  How then can it be said that her application should be granted either under the rules or under the policy?

8.	On behalf of the applicant Mr Ogunbiyi submits that the appellant had more than £800 available to her to spend because of the overdraft facility of £1,050.  However, the practical position is that the bank did not advance any money under the overdraft until after that money had been spent by the appellant.  Once it had been spent, the appellant of course did not have or hold the money.  Having spent the money, she merely owed that much more to the bank pursuant to the overdraft.

9.	In my judgment when the rule says that an applicant "must have the funds specified..." or the policy requires migrants to demonstrate that "they hold the required level of funds", those words "have" and "hold" do not mean that an applicant would qualify if he or she has an overdraft available to them either up to or in excess of the specified level of funds.  In the context of Appendix C to the rules and the in context of the policy, an applicant has or holds funds of £800 if their credit balance is £800 or more.  That accords with a common sense interpretation of the rules and the policy, and indeed it is reflected in the guidance that was and still is applicable as to the manner in which the Tier 1 policy in respect of maintenance funds will be applied by the respondent.  That guidance states that:
 
"Evidence must be in the form of cash funds.  Other accounts with financial instruments such as shares, bonds, pension funds, etcetera regardless of notice period are not acceptable."

10.	Then in a further paragraph which was dealing with the requirement at the time for funds to be held for the three month period:

"Personal, bank or building society' statements covering the three month period immediately before the application, 
The personal bank and building society statements should clearly show ... 
that there are enough funds present in the account (the balance must always be at least ... £800 ..."

11.	 That guidance cannot of course override the rules, nor can it impose any additional requirement (see Pankina).  In my judgment the requirement that the balance must be in credit in the sum of £800 accords with a common sense interpretation of the rules and the policy.  If I merely have a facility to borrow the bank's money, I do not have or hold that money.  The bank has or holds the money which it lends to me from time to time on terms and those terms in the present case included the term that the facility could be withdrawn at any time and the bank could at any time demand immediate repayment.

12.	Mr Ogunbiyi points out that the facility was not withdrawn, but in my judgment that is of no avail to the appellant.  The fact that she was entitled to borrow up to £1,050 from the bank did not mean that she had or held that money.

13.	While I have some sympathy for the appellant, it is plain in my judgment that she did not qualify under either the rules (post‑Pankina) or the policy.

14.	For these reasons, I would dismiss this appeal.

Lord Justice Rimer:   

15.	I agree.  The appellant had the benefit of an overdraft facility entitling her to incur a liability to her bank of up to a maximum sum of £1,050.  She used this facility, her account was overdrawn and at no point during the relevant month with which her application was concerned was she ever in credit in a sum of £800 or anything approaching it.

16.	Like my Lord, I agree that the bank statements do not show that she either "had" or "held" the required £800. Her credit balance never came at any point close to that sum. The bank statements instead show her to have been generally indebted to the bank.

17.	I too would dismiss the appeal.

Lord Justice Mummery:   
18.	I agree with both judgments.  I would add that there is in the papers a document taken off the Home Office website headed "UK Border Agency" that has a section in it headed "How we assess maintenance (funds)".  It is stated there that “The balance must show that you have at least £800 in your account at all times over the three month period for applications submitted within the United Kingdom.” Then it goes on to say:
 
"Evidence must be in the form of cash funds. Other accounts or financial instruments for example, shares, bonds, pension funds or agreed overdraft facilities are not acceptable as evidence of your maintenance (funds)." 

19.	In my judgment what is said there about not treating agreed overdraft facilities as cash funds within the meaning of the rules is correct.  For that and for the reasons given by my Lords, I would dismiss this appeal.

Order: Appeal dismissed