United Kingdom Asylum and Immigration Tribunal

PO (Points based scheme: maintenance: loans) Nigeria [2009] UKAIT 00047

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 28 August 2009

Date Determination notified: 25 November 2009

Before
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Designated Immigration Judge Macleman
Between

PO	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr R Gibb, Immigration Advisory Service, Glasgow For the Respondent: Mr P. Laverty, Home Office Presenting Officer.
DETERMINATION AND REASONS

The terms of the guidance applicable to points-based scheme applications make it clear that the documents accompanying the application must show the required sums as credit balances. If the sums are sufficient, it does not appear to matter that they have been lent to the applicant. But it is not sufficient to show merely that a loan has been arranged.

1. The Appellant, a national of Nigeria, appealed to the Tribunal against the decision of the respondent on 21 March 2009 refusing him leave to remain in the United Kingdom as a Tier 1 (Post Study Work) Migrant. An immigration judge dismissed his appeal. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.
2. A number of matters were raised before the Immigration Judge, who decided, amongst other things, clearly correctly, that because paragraph 245AA of the Statement of Changes in Immigration Rules HC 395 incorporates the guidance there specified, in order to comply with the immigration rules an applicant must comply with the guidance. The issue in this case relates to the amount of money available to the appellant with which to satisfy the maintenance requirements of the points based scheme. The relevant requirement in the appellant's case, and the appellant's attempt to satisfy that requirement is clearly and succinctly set out in Mr Gibb's grounds for reconsideration at para 7 and 8 as follows:-

" 7. That as the petitioner's application was made before 31 October 2008 the respondent's policy states that he must have had £800 available to him at the time of his application. It also stated that the documents produced to evidence the availability of these funds must be dated no earlier than a month before his application. ….

8. That the appellant submitted bank statements in the required form and dated within the specified period in support of his application. The balance in his account was less than £800. Nevertheless, he had an overdraft facility available, which allowed him to withdraw an additional £800 if required. His overdraft limit was £2,750 as confirmed by a letter from his Bank [submitted to the respondent]. Following the 28 August 2008 (i.e. within one month of his application) his balance never fell below minus £1,999.82."

3. The grounds were supported by an elegant and comprehensive argument referring to the terms of the current guidance, which make reference to the possibility of satisfying the maintenance requirement by means of a loan, and on the meaning of the word "loan" in general. Mr Gibb's submission was that a person may meet the requirements of the rules if he cannot show possession of the required sum of money, by showing instead an agreement under which he can draw that sum of money from a lender.
4. We are unable to accept that submission. The reference to loans in the guidance is, as Mr Gibb recognised, a new feature of guidance which came into operation after the date of the decision against which the appellant appeals. That guidance makes clear on its face that it applies to "applications made on or after 31 March 2009." The feature of the guidance upon which Mr Gibb sought to rely is of particular importance in the present case not merely because it is not the guidance applicable to the application (and the rules require an application to meet the terms of the guidance in operation at the date of the application); but also because the applicant claims the benefit of a specific provision applicable under predecessor guidance only to applications made before 31 October 2008. In general, because of the terms of the rules, an appellant needs to show that he met the requirements of the guidance at the time he made his application; but, specifically in the present case, an appellant is clearly not entitled to select the parts which favour him from two different editions of the guidance which cannot both apply to him.
5. In any event, the most recent version of the guidance, although referring to loans, shares another feature with all previous editions. That is that the evidence of maintenance can be provided in any one of four ways, but that in each case the evidence must show that the sum of money has actually been credited to the relevant account. The words used in relation to bank statements are "the balance must always be at least £2,800 or £800, as appropriate." That provision is a simple and readily intelligible requirement. Documents which fail to show a balance at the required level simply are not evidence of the requirements of the points based scheme.
6. Mr Gibb told us that he had received an e-mail from the United Kingdom's Border Agency in response to a query about when loans became admissible, given that they are mentioned for the first time in the most recent guidance. He received the answer that they have always been admissible. That may well be so. If the money is in the account, the respondent does not require an applicant to demonstrate that the money is his, rather than merely having been lent to him. Thus the evidence may be evidence of a loan that has been made. Nothing in any document we have seen shows that a person can meet the maintenance requirements by showing that there is an agreement for a loan, or in any other way that does not include showing the relevant sum as a credit balance in the account.
7. For the foregoing reasons, it appears to us that the Immigration Judge was entirely correct to dismiss the appeal. He made no error of law and we order that his determination shall stand.

C M G OCKELTON

DEPUTY PRESIDENT