Information Note on the Court’s case-law 199

August-September 2016

British Gurkha Welfare Society and Others v. the United Kingdom - 44818/11

Judgment 15.9.2016 [Section I]

Article 14

Discrimination

Alleged discrimination of Gurkha Soldiers as regards their pension entitlement: no violation

Facts – Nepalese Gurkha soldiers have served the British Crown since 1815. The Gurkhas were originally based abroad, but sin ce 1 July 1997 they have been based in the United Kingdom. Historically they were discharged to Nepal and it was presumed that they would remain there during retirement. In 2004 a change was made to the United Kingdom Immigration Rules permitting Gurkhas w ho retired on or after 1 July 1997 to apply for settlement in the United Kingdom. This was later extended to all former Gurkhas who had served in the British Army for at least four years. In 2007 an offer was made to Gurkhas who retired after 1 July 1997 t o transfer their accrued rights to a pension after that date from the Gurkha Pension Scheme to the Armed Forces Pension Scheme applying to Non-Gurkha soldiers on a year-for-year basis. Years served preceding that date were transferred under an actuarial ca lculation amounting to approximately 27% of a pensionable year of a Non-Gurkha soldier. Gurkhas retiring before this date did not qualify for this transfer.

In their application to the European Court the applicants complained under Article 14 in conjunctio n with Article 1 of Protocol No. 1 that the significantly lower pension entitlement of Gurkha soldiers attached to the British Army who had retired or served most of their time before 1 July 1997 amounted to discriminatory treatment on grounds of nationali ty.

Law – Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1: The Court was satisfied that the Gurkha soldiers were in a relatively similar situation to other soldiers in the British Army and that they could be regarded as having been treated less favourably than them in respect of their pension entitlement. It reiterated that where an alleged difference in treatment was on grounds of nationality, very weighty reasons had to be put forward before it could be regarded as compatible with the Convention. However, it also had to be mindful of the wide margin of appreciation usually allowed to the State under the Convention when it came to general measures of economic or social strategy.

The amendments to the Immigration Rules reflected the significant change in the position of the Gurkhas over time and as a result of this change the domestic authorities considered that the difference in their pension entitlement could no longer be justified on legal or moral grounds. A number of options for the transfer were considered but rejected for financial reasons. Consequently, the authorities opted to allow only the transfer of pension rights accrued after 1 July 1997 on a year-for-year basis, and, in doing so, made an exception to their general policy of not enhancing pension schemes retrospectively. For those Gurkhas who retired after 1 July 1997, any pension entitlement accrued prior to that date was accrued at a time when they had no ties to the United Kingdom and no expectation of settling th ere following their discharge from the Army. Although the majority of Gurkhas falling into this category did subsequently settle in the United Kingdom it had to be borne in mind that the purpose of an armed forces pension scheme was not to enable the soldi er to live without other sources of income following retirement from the Army. Most retired soldiers continued to be economically active once they left the armed forces. In fact, the evidence submitted by the Government indicated that many of those Gurkhas who retired after 1 July 1997 and who remained in the United Kingdom had gone on to find other gainful employment there.

The Court did not consider that the selection of 1 July 1997 as a cut-off point had been arbitrary. It represented the date of transfe r of the Gurkhas’ home base to the United Kingdom and was therefore the date from which the Gurkhas started to form ties with that country. Those who retired before that date had no ties to the UK and the Gurkha pension scheme continued to be the best sche me to meet their needs since the payments under that scheme were more than adequate to provide for their retirement in Nepal. For the above reasons, the Court concluded that any difference in treatment was thus objectively and reasonably justified.

Conclu sion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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