Former Gurkha soldiers win court challenge to UK immigration policy

[JURIST] London's High Court of Justice on Tuesday struck down [judgment text, PDF] an immigration policy that has prevented thousands of retired Nepalese members of the British Army from remaining in the UK. Earlier this month, five former members of the Brigade of Gurkhas [official website; BBC backgrounder] and one Gurkha widow argued [JURIST report] that they were precluded from settling within the UK by a discretionary policy laid out for immigration officers in Diplomatic Service Procedures: Entry Clearance Volume 1 General Instructions [Chapter 29.4 text]. Declaring that the discretionary instructions are "unlawful and need urgent revisiting," Justice Blake ruled:

Transparency and clarity are significant requirements of instructions to immigration and entry clearance officers that are published to the world at large, generate expectations of fair treatment and bind appellate bodies in the performance of their statutory functions. The policy under challenge in this case either irrationally excluded material and potentially decisive considerations that the context and the stated purpose of the policy indicate should have been included; alternatively, it was so ambiguous as to the expression of its scope as to mislead applicants, entry clearance officers and immigration judges alike as to what was a sufficient reason to substantiate a discretionary claim to settlement here.
Blake left details of a "rational future policy" to be determined by the Home Office [official website], calling for the individual decisions in the case to be revisited within the next three months. He added:
[R]ewarding long and distinguished service by the grant of residence in the country for which the service was performed would, in my judgment, be a vindication and an enhancement of [the Military Covenant].
After the ruling, Home Secretary Jacqui Smith promised [Reuters report] that the guidelines will be revised and all Gurkha cases will be reviewed by the end of the year. BBC News has more. The Independent has additional coverage.

In 2007, a Ministerial Announcement [press release; explanatory memorandum, PDF] provided that all Gurkhas retiring on or after July 1, 1997 would be offered "the choice of discharge in Nepal or in UK." Gurkhas who retired from service prior to July 1997 - the year that the Gurkha base was moved from Hong Kong to the UK - are currently required to apply for visas, which are commonly denied because the applicants are not considered to have adequate ties to the UK.


 

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