R (on the application of Gurung) v Ministry of Defence
| Jurisdiction | England & Wales |
| Judgment Date | 02 July 2008 |
| Neutral Citation | [2008] EWHC 1496 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2737/2007, CO/2734/2007 & CO2706/2007 |
| Date | 02 July 2008 |
[2008] EWHC 1496 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/2737/2007, CO/2734/2007 & CO2706/2007
Mr John Davies, QC and Mr Simon Forshaw (instructed by Bolt Burdon Kemp) for the Claimants
Mr Rabinder Singh, QC and Mr Sam Grodzinski (instructed by The Treasury Solicitors) for the Defendant
Hearing dates: 3 rd and 4 th June 2008
Ouseley J :
This is the second in what promises to be a longer line of cases challenging the lawfulness of the Terms and Conditions of Service and the pension arrangements of the Gurkha soldier retired from the British Army. These Claimants are all retired Gurkhas with long service who complain that the new pension transfer arrangements enacted in 2007 are irrational, and discriminate against them by comparison with other Gurkhas on the grounds of age, contrary to their rights under Article 14 ECHR and Article 1 of Protocol 1 to the ECHR.
Gurkhas have been soldiers of renown in the armed forces of the Crown for nearly 200 years, mostly in the British Indian Army. On the independence of India, a Tripartite Agreement was reached between the UK, India and Nepal over the future of Gurkhas serving in the British Indian Army. 6 regiments stayed in the Indian Army and 4 regiments transferred to the British Army forming the Brigade of Gurkhas, and a significant part of the Army's infantry capability. It is recruited exclusively from Nepalese citizens who remain citizens of Nepal throughout their military service. Historically, it was based in the Far East, and from 1991 to 1997 in Hong Kong. The process of handing Hong Kong back to China led to the gradual withdrawal of Gurkhas from Hong Kong to a home base now in the UK. That process was completed on 1st July 1997, although one battalion continues to be stationed in Brunei. That date of 1st July 1997 is pivotal to the arguments here.
The Terms and Conditions of Service (“TACOS”) under which Gurkhas served differed from those of the rest of the British Army, reflecting their Nepalese citizenship, continuing links with Nepal as desired by the Nepalese Government, and the expectation that they would retire in Nepal. Their pay was set by reference to Indian Army pay, and was significantly lower than the rest of the British Army pay. As from 1st July 1997, Gurkhas received what was called the Universal Addition (“UA”) which, save for periods of service in Nepal, meant that they received pay at a rate equivalent to that of their comrades in the rest of the British Army. The UA was non-pensionable. Gurkha pensions however under the Gurkha Pension Scheme (“GPS”) established by Royal Warrant in 1949 continued to differ markedly from the Armed Forces Pension Scheme (“AFPS”) both before and after AFPS 1975 was replaced by AFPS 2005.
In Purja v Ministry of Defence [2003] EWHC 445 (Admin) Sullivan J held, on the application of 7 retired British Army Gurkhas, that the differences in pension and in certain components of pay when on service in Nepal did not give rise to any discrimination contrary to Article 14 ECHR. Sullivan J also held that the differences between Gurkha TACOS and rest of the British Army TACOS over the availability of Married Accompanied Service (“MAS”) did not give rise to such discrimination either. But he had reservations about aspects of that which led to a full review of MAS by the MoD. His judgment was upheld in the Court of Appeal in October 2003, [2003] EWCA Civ 1345, [2004] 1WLR 289. It was plain from the terms in which the appeal was dismissed that the justification for the differences in pay and pension was becoming increasingly problematic. The Gurkha TACOS and GPS were designed to maintain the links between Gurkhas and Nepal and therefore were suitable for soldiers recruited in and discharged in Nepal, who lived in Nepal after retirement, having been based in the Far East rather than in the UK for their service career. The move to a home base in the UK, and the UA, was changing the service life of the British Army Gurkha, and of those family members who accompanied them now to the UK.
With effect from 25th October 2004, and of crucial importance to the claim here, the Immigration Rules (“IR”) HC 395 in respect of HM Forces were changed so that Gurkhas who had served at least 4 years in the British Army and who had been discharged in Nepal on or after 1st July 1997 were enabled, subject to certain procedural requirements, to apply for Indefinite Leave to Enter or Remain (“ILE/R”) as the case might be, in the UK; paragraphs 276E to 276K, (“HMFIR”). Although the grant of ILE/R is expressed as a discretionary power exercisable by the Secretary of State for the Home Department, in practice it has been granted to those applying. This in its train created the probability that the wife and children of a Gurkha with ILE/R would also obtain leave in line with that granted to the Gurkha. The HMFIR change was on its terms retrospective. About 90% of the 2230 eligible Gurkhas discharged after 1st July 1997 have taken advantage of that provision, along with their qualifying dependants.
In January 2005, the Secretary of State for Defence announced a review of the Gurkha TACOS. Mr Hoon said:
“As the House will be aware, our policy is to keep the Brigade of Gurkhas' terms and conditions of service under review, to ensure that they are fair and that any differences from the wider Army are reasonable and justifiable. We are also aware of our historic relationship and understandings with the Governments of Nepal and India, which have enabled Gurkhas to serve in the British Army since 1947.
Gurkha soldiers have spent an increasing proportion of their time in UK since withdrawal from Hong Kong in 1997, and successive amendments to the conditions under which they serve have recognised their changing role, status and personal aspirations. The most recent of these was their inclusion in the new HM forces immigration rule, which took effect from 25 October 2004. This has potentially far-reaching effects on the way we recruit and manage the brigade and care for its serving members, families and veterans. In addition, some public criticism and unease continues about the remaining differences between Gurkhas' terms and conditions and those of the wider Army. We are, therefore, anxious to ensure that such differences are absolutely justifiable as well as fully understood and accepted by our Gurkha soldiers and want to ensure that the MOD's position, both legally and morally, is beyond reproach.
I have therefore directed that the MOD should carry out a wide-ranging review of all Gurkha terms and conditions of service. This will be an extensive piece of work and we will endeavour to take account of the views of all those with a legitimate interest. This new review will build on earlier findings, including work to date on the review of Gurkha married accompanied service (MAS), but its scope will be much wider and it is aiming to complete in late autumn 2005.”
Before publication of the results of that review, the results were announced of the earlier review into the differences between British Gurkhas and the rest of the British Army in the availability of Married Accompanied Service, an increasingly troublesome issue as the Brigade of Gurkhas was now based in the UK. With effect from 1 st April 2006 MAS was allowed to those who had served 3 years in the Brigade, so that serving Gurkhas were entitled to be joined in the UK by wives and children. At this stage I note that with effect from 6 th April 2005, the AFPS 1975 had been closed to new entrants and had been replaced by the AFPS 2005.
In December 2006, the MoD published the results of the wider TACOS review. The context of the Review was the new Immigration Rules and the changes to MAS which:
“changed the traditional assumption that British Gurkhas would retire in Nepal, and pointed to a future in which Gurkhas could be expected increasingly to regard the UK, rather than Nepal, as their family base. In addition it was clear that the remaining differences between Gurkha terms and conditions of service and those applied to the rest of the Army were increasingly open to legal challenge”
Its overall conclusions were:
“The Review Team concluded that, the affordability issues notwithstanding, the major differences in Gurkha terms and conditions of service could no longer be justified on legal or moral grounds and recommended that they be modernised by bringing them largely into line with those available to the wider Army. However the Review Team also concluded that some differences should be retained on the grounds of maintaining the Brigade's military capability and to satisfy the Government of Nepal.”
Although many aspects of service were reviewed, crucial to this case is what was said about pensions. Chapter 10 of the Report said that pension arrangements, together with the length of service provisions of the Brigade of Gurkhas, represented the most significant differences between the Gurkha TACOS and the rest of the British Army TACOS: these were “complex and unprecedented” but the changes (to which I have referred above) made “radical reconsideration inevitable”. The previous assumption of retirement in Nepal, which was the general basis for the decision in Purja that these differences had been lawful, had been replaced by an entitlement to live in the UK after retirement and to...
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