Wednesday, 1 October 2008

Nepalese "Gurkhas": veterans win high court legal battle for right to settle in UK

Famous British actress Joanna Lumley with Gurkha VC veterans Lachhiman Gurong (left) and Tul Bahador Pun, outside the High Court in London.

Gurkha veterans who were refused the right to settle in the United Kingdom because they retired from the regiment before 1997 were treated unlawfully and the policy used to reject them was misleading, a high court judge said yesterday.
In a ruling highly critical of the Ministry of Defence, Mr Justice Blake said its advice to the Home Office on whether to grant settlement to the Gurkhas was confusing, resulting in "irrational and unlawful" restrictions being applied.
He ruled that the decision to refuse visas to five Gurkha veterans should be quashed and that the Home Office pay 80% of their costs. The five former soldiers and a regimental widow sought a judicial review of the refusal to grant them entry on the grounds that they had "no strong ties" to the UK.
The policy that led to the refusals needed "urgent revisiting" said the judge, setting a deadline of three months. The Home Office, he added, should "take political responsibility for the outcome where it is answerable to the electorate".
Yesterday's ruling was a striking victory for the Gurkhas and it could open the door to more than 2,000 veterans who have had their visas rejected under the policy.
As the judge retired to his chambers, more than 100 Gurkhas packed into the public gallery shouted "Ayo Gurkhali", the Gurkha rallying cry meaning "Forward Gurkhas". Outside the courtroom, as a bagpiper played, hundreds more chanted and clapped and some cried.
The actor Joanna Lumley, whose father served with the Brigade of Gurkhas for 30 years, said the judgment had given the government the "chance to right great wrongs and wipe out a national stain" and vowed the campaign would continue until the policy was rewritten.
In his ruling, Blake cited the military covenant - which provides UK armed forces and their families with proper care, in return for asking them to risk making "the ultimate sacrifice for their country". He said: "Rewarding long and distinguished service by the grant of residence in this country for whom the service was performed would be a vindication and an enhancement of this covenant."
The law failed to take into account years served, whether injuries were inflicted and whether medals of valour - including the Victoria Cross - were won.
The government argued that since the Gurkhas' regimental headquarters were in Hong Kong until 1997, the soldiers did not develop close enough ties to the UK.
Another "inconsistency" was the failure of Gurkha veterans of the Falklands war to obtain visas. The judge contrasted this with the government's treatment of Falkland islanders. It seemed "curious" for the Home Office to conclude that the islanders had sufficient connections with the UK to be allowed residence "but those who risked their lives and limb to bring them their freedom did not".
Last year, a government review allowed Gurkhas to apply to settle under a policy known as the Armed Forces Concession, which gives a soldier serving with the British army the right to settle in Britain after four years of service anywhere in the world. For Gurkhas alone, the policy drew a line in the sand at July 1, 1997.
The Gurkhas were not, however, discriminated against on grounds of race, a claim that the judge ruled to be "wholly unfounded".
Martin Howe, the human rights lawyer representing the Gurkhas, called the ruling "a tremendous and historic victory".
"It is a victory for common sense; a victory for fairness; and a victory for the British sense of what is 'right'," he said. "My clients, and the thousands of Gurkhas standing behind them, ask for nothing more from this country than the unfettered right to live amongst the British people - a people they have protected and loved throughout years of long and loyal service to the crown."
In a statement, the home secretary, Jacqui Smith said: "In light of the court's ruling we will revise and publish new guidance. We will honour our commitment to the Gurkhas by reviewing all cases by the end of the years.

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