Offspring of Gurkha veterans win landmark legal challenge

Two sons of British Army Gurkha veterans have won a landmark legal challenge against Home Office policy on UK entry rights.

The ruling, in Sharmilla & Ors, R (on the application of) v Secretary of State for the Home Department [2013] EWCA Civ 8, will make it easier for adult dependant children of Gurkha veterans to come to the UK to live with their fathers.

Previously, the courts have held that the Gurkhas were subject to a “historic injustice”, as they had no right to live in the UK, whereas other foreign and Commonwealth soldiers (FCO) did have settlement rights. The situation changed first in 2004 and then in 2008, following a high-profile campaign waged by the Gurkha Justice Campaign with actress Joanna Lumley.

In 2004, those who had served after July 1997 were given rights to settle in the UK with their wife and children. In 2008, this was extended to veterans who served before 1997.

However, the right to settle did not extend to adult dependant children, which meant those veterans who came here often had to say goodbye for good to their family. On top of this, the Home Office charged £2,000 for a visa application from Nepal, “the fourth poorest country on the planet”, which often required adult children to sell land for an application that was usually not granted, according to Martin Howe, senior partner of Howe & Co, and a founding member of the Gurkha Justice Campaign.

“We challenged the refusal of adult children on the basis there had been a historic injustice to the Gurkhas, since, if they had been any other FCO serving soldiers, they would have had a discretionary right to settle here,” says Howe, who acted for the two adult children.

“Therefore, but for the fact they were discriminated against pre-1997, they would have settled. The lower courts said it was fair immigration policy that adult children were not seen as part of the family. [This week], the Master of the Rolls disagreed.”

There will now be a presumption of a settlement right where an adult child can: establish “family life” within the meaning of Art 8(1) of the European Convention on Human Rights, and “dependency” (for example, they rely on their father for income, or are living in the family home, or are emotionally dependant); and show that, but for the “historic injustice” of being unable to settle, the father would have settled and the child would then have been a minor.