Gurkha children lose immigration High Court test case


Four adult children from Gurkha families have lost a test case for the right to live with parents in the UK.

A High Court judge upheld Home Office decisions refusing the four, who are in their 20s and 30s, indefinite leave to stay in the country.

They said a policy barring over-18s not already settled getting leave – except in exceptional circumstances – did not reflect the “devotion” of Gurkhas.

Rejecting this, Mr Justice Eady said their situation was not exceptional.

Lawyers for the four applicants – Gurkha’s daughter Sharmila Gurung, 27, and Gurkhas’ sons Rijen Pun, 32, Moti Gurung, 27, and Tika Rai, 27 – said the policy as “uncertain, unclear and unlawful”.

‘Great contributions’
The legal team argued government policy that barred over-18s not already settled from getting leave, except in exceptional circumstances, failed to reflect the “devotion and commitment of the Gurkhas and their families to the UK and the British Army”.

The Nepalese fighters have been part of the British Army for nearly 200 years.

But Mr Justice Eady said the policy determining who should be allowed to settle in the UK covered the families of all foreign and Commonwealth service personnel.

The judge, sitting in London, ruled that “the great contributions” made by Gurkhas to British interests over generations “should not be allowed to distort the interpretation of legislative provisions or guidance directives” which were not specific to them.

He said the policy had “an important part to play in immigration control”, and the people it affected could only settle if their cases were considered “exceptional”.

Government policy change
Rejecting accusations that the policy was flawed, the judge also dismissed complaints that immigration decision makers acted irrationally when they held in all four cases that there were no exceptional circumstances to justify granting indefinite leave.

The background to the cases involved a 2004 change in government policy that allowed former servicemen from abroad who had served with Her Majesty’s Forces and been discharged in the UK to settle in the country.

In 2009, arrangements were made also to allow those who had retired before July 1997 to remain in the UK, together with their families.

However, a current Home Office policy refuses indefinite leave to over-18s not already present and settled in the UK, who do not qualify under specific immigration rules, and have not previously been granted leave to enter or remain “as part of the family unit”.


BBC © 2012


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