14
September

Gurkha pension hearing

The long and much-awaited hearing date for our case at ECHR is set for 13 to 15 September 2016 and judgement will be available online on 15 September 2016 at 1000 hours on the court website. As the ECHR have discretion whether to have hearing it appears they have decided none needed. We therefore, can expect the decision. This will be final subject to reference to Grand Chamber.

The summary has highlighted on the ECHR website is as follows:

British Gurkha Welfare Society and Others v. the United Kingdom (no. 44818/11)

The applicants in this case are: the British Gurkha Welfare Society, a non-governmental unincorporated association which acts on behalf of 399 Gurkha veterans; and two retired Gurkha soldiers, namely Tikendra Dewan, a joint Nepalese and British national born in 1953, and Subarna Adhikari, a Nepalese national born in 1960. The case concerns Gurkha soldiers’ pensions.

Nepalese Gurkha soldiers have served the Crown since 1815, initially as soldiers in the (British) Indian Army and then following Indian Independence in 1947 when four of its regiments became an integral part of the British Army. Only Nepali nationals are eligible for service in what is today known as the Brigade of Gurkhas. Gurkha soldiers are required to retire after 15 years’ service. The Gurkha Pension Scheme (“GPS”) was established in 1949 and applied the former Indian Army Pensions Code to Gurkhas serving in the Brigade. Pension entitlements under the GPS were index-linked to the cost of living in Nepal as it was presumed that the Gurkhas would retire there. Pensions were immediately payable upon retirement. The situation of Gurkhas has significantly changed over time.

Originally based in the Far East, the Brigade’s home base moved to the United Kingdom on 1 July 1997. This led to a number of developments, for example, most recently in 2009, the Immigration Rules were amended to permit all Gurkha soldiers with at least four years’ service to apply for settlement in the United Kingdom. The British authorities thus accepted in 2004 that the situation of Gurkhas had changed and that differences in the majority of their terms and conditions of service (including their pension entitlement) could no longer be justified on legal and moral grounds. As a consequence, the 2007 Gurkha Offer to Transfer (“GOTT”) was formulated in order to bring Gurkhas’ pensions into line with those of other soldiers in the British Army who are entitled to pensions under the Armed Forces Pensions Scheme (“AFPS”). Soldiers in the British Army are entitled to serve for 22 years and, unlike the Gurkhas, are eligible for deferred pensions; the AFPS is not index-linked with the cost of living in the soldier’s country of origin. The GOTT enabled Gurkha soldiers who retire on or after 1 July 1997 to transfer from the GPS to the AFPS depending on when they first enlisted in the British Army. The terms of transfer allowed only the transfer of pension rights accrued after 1 July 1997 on a year-for-year basis.

In March 2008 the applicants brought proceedings before the British courts and were granted permission to pursue a judicial review application in the High Court. They notably challenged the legality of: the decision that Gurkhas who retired prior to 1 July 1997 were not entitled to transfer their pension rights under the GPS into the AFPS; and the decision that, for those Gurkhas who retired after 1 July 1997, service before that date did not rank on a year-for-year basis. They alleged in particular that they were discriminated against in their entitlement to an army pension on the basis of their age and/or nationality. In particular, they argued that they were treated differently both from younger Gurkha soldiers who had (more) years of service after 1 July 1997 and from regular British Army soldiers. Their application was dismissed by the High Court in January 2010.

As concerned the age discrimination challenge the High Court found that the difference in treatment did not occur due to the difference in age but due to the dates at which service had been rendered. As concerned the discrimination-on-grounds-of-nationality challenge the High Court considered that the difference in pension agreements reflected the different historical position of the Gurkhas and that, in any case, the choice of 1 July 1997 as the cut-off point for different treatment of accrued pension was a rational and reasonable one.

The applicants’ appeal was subsequently also dismissed and, ultimately, in December 2010 the Supreme Court refused to grant the applicants permission to appeal. Relying on Article 14 (prohibition of discrimination) taken in conjunction with Article 1 of Protocol No. 1 (protection of property), the applicants maintain that their pension entitlements were less favourable than those of non-Gurkha soldiers in the British Army, as their service prior to 1 July 1997 was valued at as little as 23 per cent of the service of other soldiers serving at the same time. They allege that this amounted to a difference in treatment based on nationality, race and age.

Let us all pray that truth and indeed justice will prevail.

Salams

Tikendra

   

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