In February 2012 the UK Border Agency published a statement of Intent prescribing increase in the level of maintenance required for Point Based Migrant - students and workers.  These changes are set to come into effect from the 6th of April 2012 as the Secretary of State will be laying this before parliament by the 15th of March 2012.

Migrants in the Point Based system have to demonstrate they can support themselves by showing they had prescribed amounts of maintenance. According to the UKBA these amounts were fixed in 2008 and needs to reflect changes in the cost of living in the UK. These changes cut across both entry clearance applications and leave to remain applications. For entry clearance applications under Tier 1 Entrepreneur and Tier 1 General, the funds is increased from £2800 to £3100; while Leave to remain applications were increased from £800 to £900. For dependants, the funds will be increased from £1600 to £1800 for migrants in the UK for less than 12 months; and from £533 to £600 for all other dependants. For Tier 4 (General) students, the funds will increase from £800 to £1000 per month for students in inner London and from £600 to £800 for students studying in outer London.  For students with established presence, the fund level will increase from £1600 to £2000 and from £1200 to £1600 respectively depending on whether they study in Inner or Outer London.

The problem faced by many applicants is that they might find themselves unable to meet this requirement for one reason or the other. Recent case law seems to suggest that this requirement will not be deviated from by a de-minimis argument. Thus a shortfall of £1 will mean that an applicant will not succeed.

A very interesting development is that an applicant may still rely on overdraft facilities or credit card balances to satisfy this requirement as laid down by the Upper Tribunal Rana (PBS - Appendix C - overdraft facility) India [2011] UKUT 00245 (IAC) and Ejifugha (Tier 4 - funds - credit) Nigeria [2011] UKUT 00244 (IAC) respectively. The wording of the various UKBA Guidance does not seem to expressly exclude this.  However I have had a couple of decisions where the UKBA has refused to rely on overdraft facilities to meet the maintenance which were allowed on appeal by the First Tier Tribunal. The UKBA reasoning is that the Guidance describes the maintenance funds as personal savings which is not met by an overdraft facility or credit card balance. It is expected that this issue will be re-visited one way or another - either through the court or by a specific change in the Immigration Rules. Until then, applicants should always include evidence of any available overdraft and credit card when making an application so as not to be caught out by S85A of NIAA 2002 as amended.

Not to be outdone in the whole financial changes, the UKBA has also proposed increases in application fees. While the rates of increase for most of the categories are reasonable, the fifty percent increase for Tier 1 General migrant will be difficult to justify. The new fee has been increased from £1000 to £1500 from April 2012. It is also proposed that a further increase will be prescribed by the end of the year.

 

NB: Since my last blog, it should be noted that the UKBA has now amended the Immigration Rules to specifically exclude credit card and overdraft facilities. While this move makes the requirement clear, it also gave credibility to the decisions of the UT in Rana and Efijugha that credit card balance and overdraft facilities can be relied upon.