Kyi v Secretary of State for the Home Department

For indefinite leave to remain under Rule 269 of the Immigration Rules HC395, income is disposable in the United Kingdom if the applicant can bring the required sum into the country when needed. Actual annual transfer or expenditure is unnecessary. Whether exchange controls or other practical difficulties prevent access to the funds is a question of fact. The rule does not require the income to originate from, or be invested in, the United Kingdom.

The appellant, a national of Myanmar, had entered the United Kingdom in April 2000 with leave as a retired person of independent means. She derived substantial income from assets in Myanmar and had transferred only limited sums to the United Kingdom. Her application for indefinite leave to remain was refused because the Secretary of State was not satisfied that £25,000 had been transferred annually.

An adjudicator allowed the appeal, finding that the funds could be transferred when required. The Asylum and Immigration Tribunal, in [AIT No. IM/11897/2004], reversed that decision and held that the income itself had to be physically present in the United Kingdom each year. The central issue was the meaning of disposable in the United Kingdom in Rule 263(ii).

Lord Justice Keene delivered the judgment, with Lady Justice Hallett agreeing. The appeal was allowed.

1. Construction of the rule. The phrase disposable in the United Kingdom in Rule 263(ii) of the Immigration Rules HC395 means capable of being disposed of, normally by being spent in the United Kingdom. The requirement is met where the applicant can bring £25,000 into the United Kingdom each year if needed. It does not require the applicant actually to transfer or spend that sum in the country.
2. Question of fact. The requirement would not be met if exchange controls or other practical difficulties prevented the applicant from bringing the funds into the United Kingdom. Whether that is so must be determined on the evidence in each case.
3. Rejection of the AIT’s approach. Requiring the money to be physically present each year would allow an applicant to transfer it into the United Kingdom and then transfer it out again. That would merely demonstrate ease of transfer, which could be shown in other ways. It would also fail to address the possibility of future exchange controls.
4. Text and purpose. Rule 263 does not require the source of income to be located in the United Kingdom. This contrasts with Rule 201(ii), which expressly requires business persons to show that a minimum sum will be invested in the United Kingdom. The purpose of Rule 263(ii) is to prevent the applicant becoming a burden on the state, and that purpose is achieved by proving the ability to bring funds into the country when required.
5. The adjudicator was right and the AIT was wrong. The appeal was allowed and an order was made in the terms of the draft order agreed by the parties.

• Court of Appeal (Civil Division): on 3 October 2006, allowed the appeal and held that actual annual transfer of the required income was unnecessary.
• Asylum and Immigration Tribunal [AIT No. IM/11897/2004]: promulgated its decision on 19 January 2006, reversed the adjudicator and required the income to be physically present in the United Kingdom each year.
• Adjudicator: allowed the appellant’s appeal, finding that she could transfer the required funds into the United Kingdom when necessary.