QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of:
(1) Deo Prakash Limbu
(2) Chakra Prasad Limbu
(3) Birendra Man Shrestha
(4) Gyaendra Rai
(5) Bhim Prasad Gurung
(6) Gita Kumari Mukhiya
|- and -
|(1) Secretary of State for the Home Department
(2) Entry Clearance Officer, Kathmandu
(3) Entry Officer, Hong Kong
Mr. Steven Kovats (instructed by Treasury Solicitor) for the Defendants
Mr. Sharaz Ahmed (instructed by NC Brothers) for Interested Party
Hearing dates: 16th and 17th September 2008
Crown Copyright ©
The Hon Mr. Justice Blake :
In addition to the discretion exercised during the transitional period, discretion may also be exercised by ECOs in individual cases where an applicant dos not meet the requirement of discharge from the British Army in Nepal after 1st July 1997, or discharge not more than 2 years prior to the date of application. Discretion may be exercised to waive these requirements in cases where there are strong reasons why settlement in the UK is appropriate. For example, consideration should be given to the following factors:
- Strength of ties with the UK- have they spent a significant amount of time living in the UK, such as a three year tour of duty pre-discharge or 3 years living in the UK after discharge?
- Do they have any close family living in the UK? What proportion of their close family are in the UK as opposed to living in Nepal?
- Do they have children being educated in the UK?
- Do they have a chronic/long-term medical condition where treatment in the UK would significantly improve quality of life?
If one or more of the factors listed above are present, ECOs may exercise discretion and grant entry clearance for settlement in the UK.
Close family means immediate family, such as brothers, sisters, children, parents or grandparents.
The requirements for an applicant to have completed at least four years service as a Gurkha with the British Army and to have been discharged on completion of their engagement should not be waived".
"On leaving the armed forces, a person without the right of abode will be asked in his letter of discharge to send his passport to the Home Office. A copy giving his private address will be sent to the Home Office. If his passport is not received within three weeks he should be informed in writing that he is no longer entitled to exemption from the terms of the Act which he enjoyed whilst enlisted and be told to submit his passport and regularise his position.
Four years service by those without the right of abode may count as approved employment for the purposes of any application for indefinite leave.
Those who serve less than four years should be advised to bring themselves within the terms of the Rules if they wish to remain. Where such a person is granted a limited leave to remain he has a right of appeal under section 14(2) against the decision to limit the leave. APP 109A should be used.
For the purposes of this instruction, persons locally enlisted abroad should not normally be regarded as serving in the 'Home Forces'."
"Gurkhas are members of the home forces within the meaning of the 1971 Act. They are therefore exempt from control; when entering/remaining in the United Kingdom.
On discharge, however, Gurkhas have no claim to receiving indefinite leave to enter/remain in the United Kingdom. Neither can they claim to have "voluntarily adopted" residence in the United Kingdom during their posting here as members of the home forces."
"Your proposal, therefore, to introduce a separate Armed Forces Concession for Gurkhas, which explicitly recognises their distinct position by allowing ex-Gurkhas to apply for Indefinite Leave to Enter the United Kingdom following their discharge in Nepal, appears to form the basis of a workable solution that will be viable for the next few years. It should allow us to preserve, at least for the time being, the Gurkhas' distinct identity and conditions of service. Our initial soundings indicate that this approach would be acceptable to the Nepalese government, except that they would be very concerned about any extensive retrospection. We should therefore seek to limit the concession to those who were discharged after 1 July 1997, when the Gurkhas in effect became based in the United Kingdom following the handover of Hong Kong."
"The Home Secretary has considered the letter of 22 September from the Secretary of State for Defence and has agreed that the policy should not apply to those people discharged before 1 July 1997 for the reasons set out in that letter. However, he has made some changes to the policy which are within his control in order to help those people as much possible."
The Prime Minister said:
"The Gurkhas have served this country with great skill, courage and dignity during some of the most testing times in our history. They have made an enormous contribution not just to our armed forces but to the life of this country, and it is important their commitment and sacrifice is recognised."
The Home Secretary David Blunkett said:
"Throughout their history, the men of the Gurkha Brigade have shown unquestioning loyalty to the Queen and the people of the United Kingdom. In battle they have distinguished themselves as brave and skilful soldiers in all conditions and all terrains. Their 13 Victoria Crosses and numerous other bravery awards speak for themselves. I am very keen to ensure that we recognise their role in the history of our country and the part they have played in protecting us. This is why we have put together the best possible package to enable discharged Gurkhas to apply for settlement and citizenship. I hope that the decision I have made today will make our gratitude clear. Those high military standards have been mirrored in their demeanour in civilian life. Their families too have shown devotion and commitment by travelling across continents to support the Brigade."
i. By only extending a right to Gurkha veterans to claim indefinite leave to enter or remain in the United Kingdom to those who were discharged after 1st July 1997 and by continuing to exclude them from the right to obtain settlement after four years pre-July 1997 service as provided at this time under the AFC, the Secretary of State for the Home Department unlawfully discriminated against Gurkha veterans without any or any sufficient justification.
ii. Alternatively, even if the right to indefinite leave could lawfully be limited to Gurkha veterans who were discharged after 1st July 1997, it is irrational for the Home Secretary to rely on a policy where discretion could only be exercised in favour of indefinite leave to remain on the basis of restrictive express factors. As developed in argument this broke down into four sub- grounds:
a. The example of three years residence in the United Kingdom itself and the other express criteria under DSP vol 1 29.4 were ones that most pre-1997 discharged veterans would be unable to meet.
b. Further it is irrational to exclude exceptional length and quality of service in the armed forces of the Crown (wherever undertaken) as a sufficient basis for the exercise of discretion to grant settlement in the United Kingdom. Even if they are not to be given rights after four years service, Gurkha veterans may have (and on the evidence usually have) served far longer than this and most serve the maximum 15 years under the Gurkha Terms and Conditions of Service (TACOS).
c. Further the only reasons identified by the Home Office for promulgating the 2004 change in policy for Gurkha veterans was said to be recognition of the debt of gratitude the nation owed them for loyalty and commitment to the Crown through their service in British Army. It is said that in addition to service far longer than the four years identified by the AFC and brought into the Immigration Rules, Gurkha veterans have served with conspicuous bravery in many dangerous theatres of war before 1997. Many fought in the successful campaign to restore British sovereignty to the Falkland Islands. In that and similar contexts they have received wounds in battle and some of their number have performed exceptionally conspicuous acts of gallantry for which they have been decorated. The claims of these veterans to a debt of honour can be said to be no less compelling than those who served after 1997, yet these factors appear to count for naught in the determinative exercise of discretion allocated to Entry Clearance Officers.
d. In so far as the Secretary of State was dissuaded from making broader criteria for the exercise of discretion by the Defence Secretary's concerns that the Government of Nepal would be opposed to this, there is no evidence to support this opposition indeed the evidence consistently points the other way.
i. First, to review the historical circumstances behind the formation of the Brigade of Gurkhas and how and why Gurkhas were and are able to serve in Her Majesty's Armed Forces.
ii. Second, to identify the comparable position of those non-Gurkha soldiers who were not British citizens or did not have the right of abode in the United Kingdom but who were nevertheless able to join the British Army at the relevant time.
2. The Brigade of Gurkhas
i) The Maharajah of Nepal consented to his subjects serving in the British Army so long as they were not deployed against hindus, could be withdrawn in the event that Nepal is involved in any war, and that the sovereign was informed where they would be deployed. It was reluctantly accepted that recruitment and enlistment could take place in Nepal itself for the first time in due course.
ii) The Government of India permitted the British Army to recruit and enlist Gurkhas at places now within its territory until such time as new recruiting stations could be established in Nepal. This did not happen until 1952.
iii) The salaries and terms for service were based on applicable rates of the Indian Army, partly to deny the British Army an unfair advantage in recruiting Gurkhas on more favourable terms and thus undermining Indian acceptance of this arrangement. The Government of Nepal was content with these terms of service but added its own observation that
"In all matters of promotion, welfare and other facilities the Gurkha troops should be treated on the same footing as the other units in the parent army so that the stigma of mercenary troops may for all time be wiped out. These troops should be treated as a link between two friendly countries"
iv) Gurkhas would serve in the British Army in a dedicated Brigade reflecting the Nepali language, culture and educational standards. This was not a Brigade in the conventional sense of a deployment of various regiments and military units in a formation headed by a Brigadier, but a specialist Gurkha unit reflecting these unique arrangements and the continuing links to Gurkha culture.
3. The position of foreign and Commonwealth soldiers:
"12. A foreign solder discharged from HM Forces on or immediately before 1 July 1997 had no entitlement to indefinite leave under the Immigration Rules.
13. A foreign soldier was while serving in HM Forces, exempt from immigration control. Ordinarily, he would be discharged from the Forces in the UK, just as he would have been recruited in the UK. On discharge from HM Forces, he was required to send his passport to the Home Office: Armed Forces Concession section 2.1. If he did not do so, he would be granted 28 days leave to remain to enable him to make arrangements to depart the UK or to appeal: IDI (1997) Chapter 15 section 2 paragraph 3.4.
14. If the discharged foreign soldier, while still in the UK, promptly applied for indefinite leave to remain, he would ordinarily be granted this. The route by which this was effected was the Armed Forces Concession, which treated a foreign solder's service in the UK in HM Forces as analogous to working in the UK in work permit employment, so that, if the soldier has been resident in the UK for the previous 4 years, he would be treated on similar footing with a foreign national who qualified for indefinite leave to remain under paragraph 134 of the Immigration Rules by virtue of having spent 4 years in work permit employment in the UK."
"The concession was predicated on a foreign soldier serving with the British Army being discharged in the UK and seeking indefinite leave to remain here. A Gurkha could not have benefited from the concession because, having been discharged in Nepal, he would have been seeking indefinite leave to enter the UK. Moreover, soldiers who enlisted outside the UK (i.e. Gurkhas) have had no statutory right to be sent here to be discharged."
"Gurkhas are discharged in Nepal because we have a duty to ensure that they return to their home country. We also have an obligation to ensure that they do not feel that they are returning to a foreign country. It is partly for this reason that Gurkhas are entitled to special periods of five months long leave in Nepal every three years, although I take account of the right Hon. Lady's assertion that these tours can sometimes be reduced. This is quite unlike any provision available to British personnel."
i) In January 2004 the Defence Attaché to the British Embassy Kathmandu was not convinced that "there was particularly strong opposition to a change in immigration policy that allowed Gurkhas to remain in or return to the UK".
ii) In September 2004, an Embassy memo recorded that "the Nepalese Government would welcome an exercise which addressed the legitimate concerns of current and former Gurkhas" and in response to a question of detail was informed that it was not believed that the exercise would be made retrospective. There is no indication that such a course would have caused concern indeed the context of addressing the grievances of former Gurkhas is that this would have been welcomed as well.
iii) In March 2005 there was information known to the MOD that the Government of Nepal raised no objections to discharge in the UK. This was confirmed in November 2005 at a formal consultation where the Embassy records reveal:
"15. The representative from the Nepalese MOD confirmed earlier soundings that:
a. The GoN supported the broad direction of the Review, appreciating that the changes would improve the conditions of service for Gurkha soldiers but preferred that formed units be retained because of their close connection with the image and identity of Nepal; that only Nepalese citizens should be recruited and that those who wish to join should do so in Nepal as at present, including any Nepalese citizen residing in the UK;
b. The GoN had no difficulty with discharge in either UK or Nepal."
iv) On the 16th November 2006, the Ministry of Foreign Affairs of the Government of Nepal wrote to the British Embassy in Kathmandu in the following terms:
"1. The Government of Nepal has its concurrence to the continuation of the British Gurkha in view of the friendly relations between the two countries. The Government of Nepal is agreeable to the proposed Gurkha Terms and Conditions of Service. However the Government of Nepal prefers to see the retention of the unique characteristics contained in the 1947 Tripartite Agreement.
3. The Government of the United Kingdom is requested to address with due priority and in an appropriate way the grievances of the ex-British Gurkhas concerning pension, equity, compensation, temporary entry to the United Kingdom and other associated issues".
"In 2004 the Nepalese government was consulted for the first time by the British Government on the subject of Gurkhas being granted settlement in the United Kingdom. At that time the Government of Nepal made it clear that it was happy for Gurkhas to settle in the United Kingdom. The position of the Government of Nepal is that this should extend to all those who served as members of the British Army's Brigade of Gurkhas regardless of the date upon which they retired from the Brigade of Gurkhas".
Ground 1: Discrimination
i. the common law principle of equality that is an integral part of the public law doctrine of irrationality
ii. the application of Article 14 of the ECHR when taken together with Article 8 and the concept of respect for private life
iii. statutory race discrimination contrary to the Race Relations Act 1976 as amended.
"I prefer to keep formulation of the relevant issues in these cases as simple and non-technical as possible. Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact."
"Was it open to a reasonable SSHD properly directing herself to conclude that the differences in treatment between Gurkhas and other non UK nationals was justified by reasons of differences of distinction in their situation so as not to infringe the common law principle of equality?"
i. The recruitment of Gurkhas into the British Army was a historical exception to the general rule that only British subjects should so serve. It was only by reason of special arrangements including the retention of their status as aliens during service, that were able to be recruited at all.
ii. It was only by recruitment into a dedicated Brigade of Gurkhas that such soldiers could become a part of the British Army in the first place. The Home Office was entitled to attach weight to the Ministry of Defence view that immigration policies should not undermine the distinct identity of the Brigade or Gurkhas that would ultimately impact on the ability to continue to recruit.
iii. The ethos of the Brigade was based on retention of the Nepali language, culture and religion and the assumption that continued links with Nepal were of importance. This was reflected in the special leave arrangements and the practice of discharge in Nepal.
iv. Differential pension rates were one aspect of the special TACOS of the Brigade of Gurkhas that was not held by the Court of Appeal in Purja to be discriminatory on the ground of nationality, as Gurkhas were not sufficiently in the same situation as those with other TACOS. Ouseley J. subsequently held in Gurung that a different basis of calculation of pension entitlements by reference to service before or after 1997 was not unlawful or irrational.
v. People who were not physically in the United Kingdom when discharged from service were not in the same position as those who were. Presence and ordinary residence here for a substantial period prompted the policy behind the AFCs. Physical absence on discharge and the absence of substantial prior residence was a material difference in circumstance. Equally service on operations overseas might be said not to be an aspect of ordinary residence in the United Kingdom if the service did not start from a base in the United Kingdom
vi. Similarly the Immigration Rules themselves treat 1997 as a relevant date when the circumstances of the Gurkhas changed. The identification of July 1997 as a relevant date for entitlement under discretionary immigration policies was not an arbitrary or irrational consideration. Before that date Gurkhas were based overseas and would be ordinarily resident at the place where they were based. Their visits to the UK for operational purposes were short visits rather than evidence of voluntarily acquisition of ordinary residence here for an indefinite period.
Ground 2: Rational criteria for discretion for those discharged pre 1997
i. Immigration policies are not usually retrospective let alone reaching back to a trigger event very many years before the policy came into being. The Minister cannot be for faulted for generosity in providing that some pre-1997 claimants are eligible for discretionary admission.
ii. The criteria used for discretionary admission were the same as those used for non Gurkha Commonwealth soldiers and so there was no differential treatment between the two groups.
iii. In immigration terms it is rational to base a policy on physical or family links with the UK itself as opposed to the wider reaches of its dependent territories or overseas interests.
iv. The policy is a genuine discretionary one not trammelled by a mandatory requirement to fulfil one or more of the specified examples, whatever the individual decisions rejecting the claims may at first blush have indicated. The essence of the policy is whether "there are strong reasons why settlement in the UK is appropriate". This is a judgment formed by the individual ECO using the factors as a guide. If one or more of the identified factors existed discretion should be exercised favourably, but it could be so exercised if other unspecified considerations led to the same conclusion.
v. It would be legitimate to note the MOD's concerns about over-generosity in retrospective application of the policy possibly endangering the future of the Brigade or the Gurkha TACOS and particularly their pensions.
"the legal basis must be accessible and foreseeable. A rule's effects are foreseeable if it is formulated with sufficient precision to enable any individual– if need be with appropriate advice- to regulate his conduct…..the law must indicate the scope of any such discretion with sufficient clarity to give the individual adequate protection against arbitrary interference".
i. Retrospectivity was precisely recognised as being appropriate in this policy, because Gurkha veterans had never before been offered any chance to settle and some measures were needed to correct this historic injustice whether they were in the same situation as Commonwealth veterans or not.
ii. The fact that the same terms applied to Commonwealth and Gurkha veterans undermines rather than supports the policy. The court has already concluded that there were sufficient differences in the two groups before 1997 to preclude a legal requirement for identical treatment, but it is as unlawful and irrational to treat two differently situated groups the same as it is to treat two similarly situated groups differently. In particular, where Gurkhas were not allowed stay for long tours pre-1997 or develop family links here while Commonwealth soldiers could, it is irrational to make this a requirement for both groups.
iii. This is not an ordinary case of immigration policy based on physical presence in the United Kingdom. Long military service was performed for the Crown at the instigation of Her Majesty's government of the UK, rather than of a dependant territory alone. It is a connection with this country wherever it is performed. If service overseas on behalf of the government of the UK can count for periods of qualifying residence for citizenship, it is difficult to see why such service in principle could not even be a reason to grant settlement in the UK. The fact that enlistment or discharge took place in Nepal may be a material difference from Commonwealth soldiers but is not a reason to deny discretionary settlement at all, as subsequent practice has made clear. Further given that Gurkhas tend to serve much longer why should not 10 years service when HQ was based overseas not been seen as broadly comparable to four years service when HQ was based in the UK? Both groups may spend considerable time away from base, and there was no element of minimum number of days presence in the UK for Commonwealth soldiers to obtain settlement as of right under the AFC.
iv. If the policy is intended to be as broad as is claimed and to truly embrace the Home Secretary's reasons on announcement then further guidance by way of examples apart from physical presence in the UK, is needed to be spelt out , so that a clear answer could be given to the questions posed at .
v. The MOD's concerns as to the impact on military effectiveness were doubtless legitimate but the dismissal by the court of the challenge to the first limb frees the Secretary of State to do what he or she thought fit in discharge of the moral debt without compromising bright lines adopted in the field of pensions, and pension contributions. If Gurkha veterans are to be allowed to come in as a matter of discretion because of evidence of compelling links through very long or very gallant service, that does not mean that their pensions based on historic terms of service must be uplifted. Perhaps they will choose to remain where they are and their money may go further. Rather than the decisions of the Court of Appeal in Purja and Ouseley J. in Gurung supporting the resistance to this part of the challenge, they undermine a potential justification.
vi. Finally, it should be noted that the one reason identified by the MOD in the exchange of correspondence between the Defence and Home Secretary immediately before the adoption of the policy has turned out to be plain wrong. The Government of Nepal never expressed opposition to retrospective settlement of Gurkhas in 2004 or before. The evidence indicates that they wanted Gurkha grievances addressed and as equal treatment as possible. A potentially substantial reason for caution in this area has proved to be unfounded and should play no role in the ambit of the policy. The really important issue about nationality during service has been recognised and addressed.
"Soldiers will be called upon to make personal sacrifices – including the ultimate sacrifice – in the service of the Nation. In putting the needs of the Nation and the Army before their own, they forego some of the rights enjoyed by those outside the Armed Forces. In return, British Soldiers must be able to always expect fair treatment, to be valued and respected as individuals, and that they (and their families) will be sustained and rewarded by commensurate terms and conditions of service".
Rewarding long and distinguished service by the grant of residence in the country for which the service was performed would, in my judgment, be a vindication and an enhancement of this covenant.