Historic Injustice and Proportionality

Ghising (family life – adults – Gurkha policy) Nepal [2012] UKUT 160 (IAC)

In this case the Upper tribunal said that “the ambit of Article 8 is not circumscribed” and in reducing the importance normally attached to immigration control the historic injustice perpetrated against Gurkhas “must be taken into account when assessing proportionality” (at [120]). However, given the existing framework for granting Gurkha veterans and their family members rights of residence in the UK, the “impact” of historic injustice “is limited”.


A Nepalese national, the appellant (A), who had been studying in the UK since 2007, applied for leave to remain as the dependant relative of his father (F) who served in The Queen’s Gurkha Engineers. Upon completion of his service, F, who served Her Majesty in an “exemplary” manner for 23 years, could not settle in the UK in 1991/1992 because – unlike other Commonwealth citizens and foreigners serving in the British Army – Gurkhas faced restrictions in doing so. Following the revision of this discrepancy, A’s mother (M) – who presently needs A’s care because she is old/frail – and F were granted settlement rights and they came to the UK in 2009. Things would have been entirely different if F and M had been permitted to settle in the UK two decades earlier because they would have been able to bring their dependant children with them.

A’s sister (S) studied in the UK and returned to Nepal but acquired settlement rights through her husband who is a British citizen: she is too busy with her two infant children to care for M. A’s presence in the UK is well established: he has no one or no place to return to in Nepal. He has also passed the test required to settle in the UK. A has always been financially dependent on F who has borne his son’s expenses (for two successfully completed college courses and an MBA course which finishes in July 1013). It is custom among Nepalis for the youngest son, even after marriage, to care for his parents by living with them.

Background: SSHD and FTT

The Secretary of State for the Home Department refused A’s application as he failed to demonstrate that he would be living outside the UK in the most exceptional compassionate circumstances: A was a young man who could support himself. Thus, no leave would be granted in accordance with the Immigration Directorate Instructions. Equally, the circumstances of A’s case were such that his removal to Nepal would be justified because the interference with his private life was not disproportionate: A had failed to establish interference with his family life and he did not qualify for discretionary leave.

Repeating the above the First Tier Tribunal dismissed A’s appeal and it added that A’s ties to his parents were “emotional ties” which any 25 year old student has with his family. Moreover, having entered the UK as student A could not have had the expectation of settlement here. Instead, subsequent to his return to Nepal, visits and advanced means of communication made it possible for A to preserve his relationships with friends and family.

A appealed to the Upper Tribunal on the grounds that the FTT erred in (a) applying the law in concluding that Article 8(1) was not engaged in his case; (b) considering whether the severity of any interference with A’s family life would engage Article 8; (c) applying the relevant law by overstating the degree of severity required for Article 8 to be engaged; and (d) assessing proportionality (by failing to take into account a significant factor, the righting of an historic wrong perpetrated against the Gurkhas).

It was common ground that A failed to fall within rule 317 as he was not in “the most compassionate exceptional circumstances.”

Article 8

Capitulating to Strasbourg authority (Sen v Netherlands [2001] ECHR 888, Gül v Switzerland [1996] ECHR 5) the SSHD conceded that despite voluntary separation, A did in fact enjoy bonds with F and M which amounted to a family life. Finding that A’s case was “strikingly different” from Kugathas [2003] EWCA Civ 31, the Upper Tribunal (Mrs Justice Lang DBE and Judge Jordan, at [62]) found that in deciding whether or not family life exists “rather than applying a blanket rule with regard to adult children, each case should be analysed on its own facts”. The UT found that A, F and M and “genuinely” enjoyed “ a close knit family life” (at [72]).

The UT agreed with the submission that the FTT had applied too high a threshold to ascertain whether the interference caused by A’s removal would have consequences of such gravity as potentially to engage the operation of Article 8: the interference must be real but the “threshold of engagement (the “minimum level”) is not a specially high one” – AG (Eritrea) [2007] EWCA Civ 801, Sedley LJ at [28]; Quila & Bibi [2011] UKSC 45, Lord Wilson at [30].

Righting the Historic Wrong

A sizable part of the UT’s decision, [81]–[94], is devoted to comparing the circumstances of Gurkhas to the predicament of British Overseas Citizens (BOCs)/Citizens of the United Kingdom and Colonies (CUKCs) who were deprived of their right of abode in the UK and whose adult dependants are scattered in parts of India and East Africa: see entry here. It was A’s case that maintaining an effective immigration policy needed to be balanced against the fact that, similar to BOCs, past immigration policy in relation to Gurkhas and their families was unjust.

In making his point, A relied upon ECO (New Delhi) v KG [2011] UKUT 117 (IAC) which involved an adult dependant (who won on Article 8) of a Gurkha veteran. The argument was that the public interest in controlling immigration in a firm and fair way was not as strong as usual because preventing Gurkha veterans from settling in the UK was “an historical wrong”. But it was simultaneously acknowledged that the injustice was “not as severe as that perpetrated upon female British Overseas Citizens”.

The UT appraised the Court of Appeal’s judgments which have attempted to cure the injustices inflicted upon BOCs/CUKCs and their family members. Lang J began with ECO (Mumbai) v NH (India) [2007] EWCA Civ 1330 and noted that refusing entry clearance to an adult child of a Kenyan CUKC breached Article 8 because but for an acknowledged historic injustice, the mother would have been able to bring her youngest son to the UK long years ago.

Secondly, in JB (India) v ECO [2009] EWCA Civ 234 the Court interpreted its existing jurisprudence as meaning that “where there is an interference with family life sufficient to engage Article 8(1), recognition that the family has been the victim of an “historic injustice” may well be relevant, in some cases highly relevant, when the proportionality of that interference is considered under Article 8(2)” (at [20]).

Furthermore in Patel, Modha & Odedra v ECO [2010] EWCA Civ 17, whilst lamenting that it could not “reverse the passage of time” the Court nevertheless set out to “compensate” for the historical wrong: it concluded that murky history coupled with admitted injustices were relevant to the application of Article 8(2). Against the historical backdrop established in NH (India), Sedley LJ (as he then was, at [15]) explained that in assessing proportionality for adult children, past injustice was decisive and influential because the effect of the injustice reversed the usual balance of Article 8 issues.

But Gurkhas discharged after 1 July 1997 were eligible for consideration under Part 7 of the Immigration Rules. Equally, Gurkhas who could demonstrate that settlement was appropriate because of existing ties to the UK may have qualified under a discretionary policy which permitted them to settle in the UK (even if they had been discharged prior to 1 July 1997 and/or more than 2 years prior to the date of application). Notably, following Blake J’s criticisms of the government in Limbu [2008] EWHC 2261 in May 2009, Gurkhas with more than 4 years service who had been discharged before 1 July 1997 were, under the terms of a discretionary policy, made eligible to settle in the UK. However, the terms of the policy allow the spouse and minor children of eligible Gurkhas to settle and adult children can only settle on a discretionary basis.

The Upper Tribunal’s Decision

Applying the approach developed by the Court of Appeal in relation to BOCs – that historic injustice and its consequences are to be taken into account when assessing proportionality under Article 8(2) – the villainy inflicted upon Gurkhas was admitted but the UT considered it 

94. [I]mportant to bear in mind that there are significant differences between the position of Gurkhas and that of  British Overseas Citizens.  Gurkhas were citizens of Nepal, not the UK.  They were not entitled as of right to live in the UK.  Moreover, the exclusion of British Overseas Citizens has been formally recognised as racially and sexually discriminatory, unlike the policy excluding Gurkhas.  We therefore agree with the conclusion … in KG that the ‘historical wrong’ perpetrated upon Gurkhas was not as severe as that perpetrated upon British Overseas Citizens.  In our view, it carries substantially less weight.

Therefore, the UT remade the FTT’s decision by deciding that although A’s removal to Nepal would “severely interfere with his family life” and that of his parents, it was “justified and proportionate” because the government had made exceptional provisions for righting the historic injustice in connection with Gurkha veterans and their family members (at [113] – [116]).

Moreover, the government’s scheme to address the historic wrong perpetrated against the Gurkhas was flexible enough to “avoid conspicuous unfairness” (at [119]). Recalling the late Lord Bingham’s Huang [2007] UKHL 11 observation that “a line has to be drawn somewhere” the UT thought that there was a strong public interest in deciding Gurkha veterans’ cases consistently and fairly within the existing scheme operated for this purpose; thus, there was no breach of A’s right to a family life (at [121] & [122]). In sum, dismissing A’s appeal the UT determined that

1. A review of the jurisprudence discloses that there is no general proposition that Article 8 of the European Convention on Human Rights can never be engaged when the family life it is sought to establish is between adult siblings living together. Rather than applying a blanket rule with regard to adult children, each case should be analysed on its own facts, to decide whether or not family life exists, within the meaning of Article 8(1).  Whilst some generalisations are possible, each case is fact-sensitive.

2. The historic injustice and its consequences suffered by former members of the Brigade of Gurkhas are to be taken into account when assessing proportionality under Article 8(2) but the ‘historical wrong’ was not as severe as that perpetrated upon British Overseas Citizens and carries substantially less weight.  Because of the exceptional position of Gurkha veterans, and their families, the Secretary of State has made special provision for their entry to the UK outside the Immigration Rules as an acknowledgment that it is in the public interest to remedy the injustice.

3. Given that the Gurkhas are Nepali nationals, it is not inherently unfair or in breach of their human rights to distinguish between Gurkha veterans, their wives and minor children on the one hand, who will generally be given leave to remain, and adult children on the other, who will only be given leave to remain in exceptional circumstances. The scheme that the Secretary of State has developed is capable of addressing the historical wrong and contains within it a flexibility that, in most cases, will avoid conspicuous unfairness.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Court of Appeal, East African Asians, Gurkhas, Immigration Rules, Proportionality, Settlement and tagged , , , , . Bookmark the permalink.

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