European Court of Human Rights

FOURTH SECTION

Application no. 44818/11
British Gurkha Welfare Society and Others
against the United Kingdom
lodged on 10 June 2011

STATEMENT OF FACTS

A full list of the applicants is set out in the appendix.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  The factual background

The Brigade of Gurkhas (“the Brigade”) is an integral part of the British Army in which only Nepali nationals are eligible for service. Pursuant to a memorandum of understanding of 9 November 1947 (“the Tripartite Agreement”), the Governments of the United Kingdom, India and Nepal agreed that the pay and pensions for Gurkhas serving in the British Army would be set by reference to rates applied by India in respect of Indian soldiers so as to avoid competition between the Indian and British armies for Gurkha recruits.

In 1949 the Gurkha Pension Scheme (“GPS”) was established by Royal Warrant and applied the former Indian Army Pensions Code to Gurkhas serving in the Brigade. Pension entitlements under the GPS were index-linked to the cost of living in Nepal as Gurkhas were discharged to Nepal and it was presumed that they would remain there during retirement. Under the GPS there was no possibility of a deferred pension and a pension only became payable after fifteen years’ service.

In 1981 Gurkha pensions were reviewed and the rate payable was set at the highest rate applicable under the Indian Army pension arrangements.

In 1999, following a ministerial review, the rates applicable to Gurkhas in the Brigade were increased by over 100 per cent, taking them over the scales set by the Indian Army. The rationale for the increase was that a Gurkha who retired from the Brigade to Nepal would not receive the benefit of various schemes which soldiers retiring from the Indian Army could access, such as the provision of certain medical facilities. The increase applied to all Gurkhas regardless of the date of discharge.

In comparison, non-Gurkha soldiers serving in the British Army were entitled to pensions under either the Armed Forces Pensions Scheme 1975 (“AFPS 75”) or the Armed Forces Pensions Scheme 2005 (“AFPS 05”) depending on when they commenced service. Neither scheme was index-linked with the cost of living in the soldier’s country of origin. In order to receive an immediate pension officers were required to serve sixteen years, and all other ranks were required to serve twenty-two years. Moreover, British soldiers were eligible for deferred pensions provided that at least two years’ service was rendered before leaving the Army.

The annual pension entitlement under the GPS was broadly equivalent - taking into account the adjustments made in 1981 and 1999 - to one-third of that received by British soldiers retiring from the British Army.

2.  Subsequent changes to the GPS

On 25 October 2004 the Immigration Rules (HC 394) were changed to permit Gurkha soldiers with at least four years’ service who retired on or after 1 July 1997 (the date that Gurkha headquarters relocated to the United Kingdom) to apply for settlement in the United Kingdom. Approximately ninety per cent of the 2,230 eligible Gurkha soldiers have since applied successfully to settle in the United Kingdom with their qualifying dependants.

Following the 2004 amendment to the Immigration Rules, the Secretary of State for Defence announced a review of the Terms of the GPS. The review concluded that the major differences in Gurkha terms and conditions of service could no longer be justified on legal or moral grounds and recommended that they be modernised by bringing them largely into line with those available to the wider Army.

In March 2007 the United Kingdom formulated the Gurkha Offer to Transfer (“GOTT”) and this was given effect in the Armed Forces (Gurkha Pension) Order 2007 (“the 2007 Order”). The GOTT enabled Gurkha soldiers who retired or were serving on or after 1 July 1997 to transfer from the GPS to either AFPS 75 or AFPS 05 depending on when they first enlisted in the British Army. The terms of any transfer were such that the accrued rights to a pension for service after 1 July 1997 would transfer into the AFPS scheme on a year-for-year basis.

In respect of service rendered before 1 July 1997 the Explanatory Memorandum to the 2007 Order explained that:

“... although Gurkha service from 1 July 1997 is transferable on a one-for-one basis, Article 2 L4 provides that pre-1997 Gurkha service counts proportionately depending upon the rank of the transferee. This proportion is not arbitrary: it has been arrived at after careful calculation by the Government Actuary’s Department. It represents broadly the value of the pre-1997 benefits accrued in the GPS. A Gurkha transferring to either AFPS will be given fair pension value for his GPS service.”

Under the actuarial calculation adopted by the Government a year’s service before 1 July 1997 translated - in terms of pension entitlement - to the equivalent of between twenty-three and thirty-six per cent of the value of a year’s service of a British or Commonwealth soldier of equivalent rank.

On 21 May 2009 the Secretary of State for the Home Department announced a new policy under which all former Gurkhas who had served in the British Army for at least four years would be eligible for settlement in the United Kingdom.

3.  The applicants

The first applicant is a non-governmental unincorporated association that acts on behalf of two hundred and ninety nine former members of the Brigade.

The second applicant is a former Gurkha soldier who retired from the Brigade on 8 February 1997 after having accumulated fifteen years’ service. He completed his service prior to 1 July 1997. He is therefore ineligible to transfer any of his pensionable years to one of the AFPS. His pension continues to be governed by the GPS and, as such, is valued at approximately fifty per cent of that which a British soldier of equivalent rank would receive for the same period and type of service.

The third applicant is a former Gurkha soldier who retired from the Brigade on 31 July 2002 after having accumulated almost thirty-one years service. The last five years of service were transferred into the AFPS on a year-for-year basis. The preceding twenty-six years of service were transferred under an actuarial calculation pursuant to the 2007 Order. Under that calculation the pensionable value of each of his years of service was regarded as equivalent to approximately twenty-seven per cent of a pensionable year served by a British soldier of equivalent rank engaged in the same type of service.

4.  Domestic proceedings

On 7 March 2008 the applicants issued an application for judicial review in the High Court challenging the legality of the relevant pension arrangements relying, inter alia, on Article 1 of Protocol No. 1 to the Convention read together with Article 14 The applicants alleged that they were discriminated against in their entitlement to an army pension on the basis of their age and/or nationality. In particular, they argued that they were treated differently both from younger Gurkha soldiers who served after 1 July 1997 and from regular British Army soldiers.

The applicants were granted permission to pursue their judicial review application. However, on 11 January 2010, following a two-day hearing, the High Court dismissed the application. In respect of the age discrimination challenge the High Court relied on its earlier decision in R (Gurung) v. Ministry of Defence [2008] EWHC 1496 (Admin), in which it held that the difference in treatment did not occur due to the difference in age but due to the dates at which service had been rendered. The judge in the present case noted that:

“... when lines are drawn for any purpose by reference to dates the result may well include some indirect age discrimination.”

In respect of the race discrimination challenge the High Court considered that it was bound by R (Purja and Others) v. Ministry of Defence [2003] EWCA Civ 1345, which found that Gurkhas with service before 1 July 1997 were in a markedly different position from other soldiers serving in the British Army before that date. The difference in pension arrangements reflected the different historical position of the Gurkhas.

The applicants were granted permission to appeal to the Court of Appeal.

On 13 October 2010 the Court of Appeal dismissed the applicants’ appeals. In respect of the race discrimination claim the Court of Appeal, like the High Court, considered itself bound by the decision in Purja (cited above). In respect of the age discrimination claim the court, relying on the Strasbourg Court’s judgment in Neill v. the United Kingdom, no. 56721/00, 29 January 2002 , held that even if a relevant comparison could be drawn between older and younger Gurkhas, the Ministry of Defence could easily justify the difference in treatment.

On 13 December 2010 the Supreme Court refused to grant the applicants permission to appeal.

B.  Relevant domestic law and practice

1.  R (Purja and Others) v. Ministry of Defence [2003] EWCA Civ 1345

In Purja and Others, a case brought prior to the changes to the Immigration Rules, the applicants complained that the difference in pension rates between Gurkha and non-Gurkha soldiers constituted direct discrimination on the grounds of nationality or race.

The Court of Appeal dismissed the applicants’ complaints. Simon Brown LJ stated that:

“... not only are Gurkhas, as the judge there observed, ‘leaving the United Kingdom and returning to Nepal, where their pensions will be paid, and conditions in Nepal are markedly different from those in the United Kingdom’, but it must be borne in mind too that these pensions are generally payable from a much earlier age.

60. It can of course be said that it is only because they are Nepalese that the Gurkhas will be retiring to Nepal and living there more cheaply than their British counterparts. But I reject entirely the proposition that they are therefore to be regarded as unjustifiably less well treated on the ground of their nationality. It is, of course, only because they are Nepalese that they are recruited into the Gurkha Brigade in the first place. Nor am I impressed by [the claimants’] argument that because, say, an Irish or Jamaican (dual) national will be discharged from the British Army with a pension calculated without reference to wherever he may be intending to retire, so too should a Gurkha. I simply cannot recognise the two groups as being in “an analogous or relevantly similar situation” looking at the nature of the Gurkha Brigade as a whole - the basis and circumstances of the Gurkhas’ recruitment, service and discharge.”

Chadwick LJ drew attention to five features distinguishing the situation of Gurkha soldiers from non-Gurkha soldiers:

“It is enough to draw attention to the following: (i) Ghurkha soldiers are recruited, exclusively, from Nepal, under arrangements to which the governments of Nepal and India have given approval; (ii) Ghurkha soldiers are, invariably, discharged in Nepal at the end of their service, and have no right of abode in the United Kingdom; (iii) Ghurkha soldiers will, almost invariably, complete 15 years service and retire on pension (payable with immediate effect) at or about the age of 35 years; (iv) there is an obvious, and recognised, need in those circumstances to foster and maintain links between Ghurkha soldiers while in service and the country (Nepal) to which they will return on retirement; and (v) that need is enhanced by the wide social, economic and cultural differences between Nepal and the United Kingdom - and between Nepal and the other countries throughout the world in which Ghurkha soldiers have been, or are likely to be, required to serve.”

2.  R (Gurung and Others) v. Ministry of Defence [2008] EWHC 1496 (Admin)

In Gurung and Others the applicants’ submitted that the pension policies adopted by the Government resulted in a form of indirect age discrimination. In particular, it was argued that younger Gurkhas, retiring after 1 July 1997, had the advantage of being able to transfer years of service into the AFPSs while the older Gurkhas were forced to remain within the GPS.

In its judgment the High Court set out the reasons why the relevant distinction between older and younger Gurkhas was not age discrimination as such and, even if it was, why any differential treatment could be justifiable:

“... [T]he grounds of differentiation here, not wholly aptly characterised as those of age, are not suspect grounds. The grounds of difference do not arise because someone is above or below a particular age, but because the introduction of changes which are not directly age related are defined by dates, and years of service. The drawing of lines, by reference to dates, around schemes which help some but not others is an inevitable part of many legislative or policy changes; this is the more so where a past disadvantage or even wrong is being remedied retrospectively. Of course, this means that either the older or younger will be affected; the date itself will import an indirect differentiation on age grounds. But that is a weak starting point for an assertion of indirect discrimination on age grounds. In any event, if there is a rational basis for the selection of the date as at which the changes are made, that disposes of the Article 14 challenge.

75. ... where the decision is about social and economic policy, particularly those concerned with the equitable distribution of public resources: a generous margin of appreciation is allowed; see Lord Hoffman in R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29, [2005] 1 WLR 1681.

....

77. ... A line was drawn; that was in itself reasonable, and the particular dates chosen for its drawing are reasonable too. The difference reflects not age in reality but the number of years of service based in the Far East or in the UK. If there was indirect discrimination on the grounds of age or “other status”, it was justified and proportionate.”

COMPLAINT

The applicants complained that the significantly lower pension entitlement of Gurkha soldiers who retired or served before 1 July 1997 amounted to differential treatment on the basis of nationality, race and age. They complained that the difference in treatment could not be justified and, as such, represented a violation of Article 14 of the Convention read together with Article 1 of Protocol No. 1 to the Convention.

 

QUESTION TO THE PARTIES

Does the difference in pension entitlement between the applicants and non-Gurkha soldiers or between the applicants and Ghurkha soldiers who commenced their period of service after 1 July 1997 violate Article 14 of the Convention read together with Article 1 of Protocol No. 1?

 

APPENDIX

 

No.	Firstname LASTNAME	Birth date	Birth year	Nationality	Place of residence	Representative
1.	BRITISH GURKHA WELFARE SOCIETY					RUSSELL JONES & WALKER
2.	Tikendra DEWAN	18/06/1953	1953	Nepalese,British	Farnborough	RUSSELL JONES & WALKER
3.	Adhikari SUBARNA	14/04/1960	1960	Nepalese	Wellington	RUSSELL JONES & WALKER