Gurkha soldiers suffered no violation of Convention rights over pensions dispute

Gurkha soldiers who complained that their pension entitlements had been less favourable than those of non-Gurkha soldiers in the British Army and those of younger Gurkha soldiers who had more years of service after 1 July 1997 suffered no violation of article 14 (prohibition of discrimination) read together with Article 1 of Protocol No. 1 (protection of property) to theEuropean Convention on Human Rights, Strasbourg has unanimously ruled.

The applicants in this case were: 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.

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 UK on 1 July 1997. This led to a number of developments, for example, in 2009, the Immigration Rules were amended to permit all Gurkha soldiers with at least four years’ service to apply for settlement in the UK.

The 2007 Gurkha Offer to Transfer (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.

Relying on Article 14 (prohibition of discrimination) taken in conjunction with Article 1 of Protocol No. 1 (protection of property) to the Convention, the applicants maintained that their pension entitlements had been less favourable than those of non-Gurkha soldiers in the British Army, as their service prior to 1 July 1997 had been valued at as little as 23 per cent of the service of other soldiers serving at the same time. They alleged that that had amounted to a difference in treatment based on nationality, race and age.

The applicants, by their own admission, had not pursued their claim on grounds of race before the domestic courts. That part of their complaint, therefore, had to be rejected as inadmissible for failure to exhaust domestic remedies.

First, the Court considered that any difference in treatment had been objectively and reasonably justified. The selection of 1 July 1997 as a cut-off point had not been arbitrary. That date represented the transfer of the Gurkhas’ home base to the UK and therefore the point in time from which the Gurkhas had started forming ties with the country.

Those who had retired before that date had no ties to the UK and, at the date of the GOTT (2007), had no right to settle there. The Court therefore found no cause to doubt the conclusion of the 2004 review that the GPS continued to be the best scheme to meet the needs of these Gurkhas, since the payments under that scheme, which were available immediately upon retirement, were more than adequate to provide for their retirement in Nepal.

As concerned those who retired after 1 July 1997, any pension entitlement accrued prior to that date had been accrued at a time when they had no ties to the UK and had no expectation of settling there following their discharge from the Army. In any case, the purpose of an armed forces pension scheme (either under the AFPS or the GPS) was not to enable the soldier to live without other sources of incoming following retirement from the Army. Given that most Gurkhas retired after 15 years, and the majority of other soldiers in the British Army retired before they had served for 22 years, it was fully expected that they would have other sources of income once they had left the armed forces.

Finally, the Court found no support for the applicants’ argument that pensions should not be index-linked to their expected country of retirement. Firstly, it was difficult to draw any genuine comparison between the position of pensioners living in different countries on account of the range of economic and social variables applying from country to country; and, secondly, pensions were a form of deferred salary, and many employers regularly adjusted salaries to reflect the cost of living in the city or country of employment.

Consequently, there had been no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1.

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