Adeyemi -Doro, R (on the application of) v Secretary of State for the Home Department

An agreed overdraft is a facility to borrow money. It is not cash which an immigration applicant has or holds. For Tier 1 maintenance requirements, an applicant has or holds the specified funds only where the account has a credit balance of at least that amount. A credit balance cannot be augmented by the amount available under an overdraft.

Following SSHD v Pankina & Ors [2010] EWCA Civ 719, a pre-application three-month holding requirement was not part of the Immigration Rules. That did not assist an applicant who lacked the required credit balance on the application date or on any date permitted by the reconsideration policy.

The appellant applied on 9 February 2009 for leave to remain as a Tier 1 (post-study work) migrant. The Secretary of State refused the application because the appellant had not shown funds of £800. Blake J later refused her renewed application for permission to seek judicial review.

After the decision in SSHD v Pankina & Ors [2010] EWCA Civ 719, the Secretary of State reconsidered applications under a policy requiring the relevant funds to be held on one day during the month before the application. The appellant contended that her agreed overdraft facility of £1,050 meant that she had or held £800. The issue was whether an available overdraft constituted the required maintenance funds.

1. Appeal dismissed. Sullivan LJ, with whom Rimer and Mummery LJJ agreed, held that the appellant failed both under the Immigration Rules, as construed after SSHD v Pankina & Ors [2010] EWCA Civ 719, and under the reconsideration policy.

2. Pankina established that the requirement to possess £800 throughout the three months before the application was not part of the Immigration Rules. The rules instead required the applicant to have £800 on the application date. The policy gave a separate opportunity to show that sum on one day during the preceding month.

3. The expressions “have” and “hold” funds in the rules and policy required actual funds in the applicant’s account. An applicant satisfied that condition only with a credit balance of £800 or more. An overdraft is a contractual facility under which the bank lends money after it has been spent; it does not place that money in the applicant’s possession or holding.

4. The guidance, although incapable of adding to the rules, correctly reflected that construction by treating cash funds as necessary and agreed overdraft facilities as unacceptable evidence. The appellant was overdrawn on the application date and her highest credit balance in the preceding month was £397.20. She therefore did not meet either route to reconsideration.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal in [2011] EWCA Civ 849.
• High Court, Administrative Court: Blake J, by an order dated 23 September 2009, refused the appellant’s renewed application for permission to apply for judicial review.