In London’s High Court today four adult children from Gurkha families have lost a test case for the right to remain and live with their parents in the UK.
A High Court judge upheld Home Office refusal decisions against the group, who are in their 20s and 30s, denying indefinite leave to remain (ILR) in the country.
Had the Gurkha children been granted ILR they could have later applied for UK Naturalisation or full citizenship.
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”.
The legal team argued on appeal that 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, who have been loyal servants of the British Army for nearly 200 years, have been supported by actress Joanna Lumley in their battle to gain rights to live in the UK.
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”.
Immigration 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”.
Cynthia Barker, of Immigration Advisers Bison Management, has dealt with thousands of dependant visa applications and appeals. She said:
‘Processing delays, as well as refusals, are increasingly being experienced by migrants applying for visa extensions, indefinite leave to remain and naturalisation or British Citizenship.
‘Immigration and visa appeals are becoming the only course of action left for many.’
If your visa or other entry clearance for the United Kingdom (UK) has been refused, you may wish to make an appeal to the Immigration and Asylum Tribunal (IAT) First Tier Tribunal. Formerly known as the Asylum and Immigration Tribunal (AIT).
The UK Border Agency (UKBA) recently announced that a clause in the Crime and Courts Bill will take away the full right of appeal for those applying to enter the UK as a family visitor.
If you need any immigration advice or help with Sponsorship or Work Permits, Visa, ILR, UK Naturalisation, Settlement, Citizenship, dependant visa or an appeal against a refusal please email: