Gurkha Success
Adult Dependant Children of Ex-Gurkhas – Ground breaking British Court of Appeal Decision
Jitendra Rai v Secretary of State for the Home Department [2017] EWCA Civ 320
The Court of Appeal in London, on Friday, 28 April 2017, handed down a ground breaking new judgment on a case brought by the son of a retired British Army Gurkha, Jitendra Rai. The British Court stressed that Gurkhas who have served in the British Army and their families are in a very special position and must be treated with the utmost respect in consideration of their claims.
The Court found , "...that there is no requirement of "exceptionality"" for the children of Gurhkas. This removes a huge hurdle to Gurkhas who wish to have their children with them in the UK.
The Court highlighted the historical injustice to the pre-1997 retired Gurkhas who were not allowed to settle in the UK until after Howe + Co's victorious court case in 2008. Their children would have been allowed to live in England, if the parents had been allowed to settle in Britain before 2008. Recognising this historical injustice, the Court of Appeal stated that adult dependant children of Gurkhas only now need to show normal love and affection of a parent and a little more else in order to be granted Entry Clearance visas for the UK. There is no requirement for exceptionality, which is the wrong test that the British visa officers have been applying to Gurkha adult-children cases.
The Court gave new important guidance where the Gurkha has come to the UK and already separated from his dependant child who remains in Nepal. The British Home Office had previously relied on such separation to reject applications. The Court of Appeal said the Home Office had to look at the question why there had been family separation. If this was for practical reasons (because the Gurkha wanted to take up settlement and obtain UK medical treatment for example) then such reasons should not be counted against Gurkha's dependant child.
Martin Howe, Senior Partner at Howe +Co, said:
"This is a ground breaking judgment from the Court of Appeal which expands upon the previous successes that Howe + Co has had in taking leading cases on the legal rights of Gurkhas, their wives, their children and their adult children to settle in the UK. This new case has opened the door wider to adult dependants of Gurkha veterans.
Howe & Co are very proud of the hard work we have done to win settlement rights for Gurkhas and their families in the UK. We are honoured to represent thousands of Gurkhas and their families in their initial applications and in appeal cases against the British government in the British courts. We will continue to fight for Gurkhas and their families and stop the Home Office from unfairly blocking their applications. We are ready to help any Gurkha or adult dependant child who wants specialist and detailed legal advice from Britain's leading Gurkha law firm."
Martin Howe, David Howe, Patrick Howe and Prakash Rana on 020 8840 4688