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European Court finds that British Gurka pension scheme is not discriminatory

British Gurkha Welfare Society and others v The United Kingdom, Application No. 44818/11

The European Court of Human Rights has ruled that while Gurkha pension entitlements are less than those of other soldiers in the British Army, it made no finding of unlawful discrimination.  The applicants were two former Gurkha soldiers and the British Gurkha Welfare Society (BGWS).

Historically, Gurkhas had a different pension scheme from other soldiers in the British Army due to the lower costs of living in Nepal, where it was assumed that retired Gurkhas would return.  However, in October 2004, the immigration rules were changed.  Gurkha soldiers who retired on or after 1st July 1997 with at least four years’ service could apply to settle in the UK. 

In March 2007, in a further change to the law, the UK government allowed Gurkhas who retired after 1st July 1997 to transfer their pension to the allowance for the British Armed Forces.  The applicants had been adversely affected by the cut-off point.  They alleged that the significantly lower pension entitlement amounted to unjustified differential treatment on grounds of nationality, race and age. 

The European Court ruled that the racial discrimination aspect was inadmissible as this argument had not been pursued at a domestic level.  It then considered whether the discrimination on basis of age and nationality had been unjustified.  The Court found that while there was differential treatment, and while ‘very weighty reasons’ were required to justify differences in treatment on grounds of nationality, the cut-off point was justified.  This was the point at which the Gurkhas’ home base was moved to the UK.  Without this cut-off point, the equalisation of pension arrangements would have increased the government’s costs from £320 million to £1.5 billion.  Also, prior to 1997 soldiers had no ties to the UK and no expectation of settling there.

As to the matter of age discrimination, the Court held that differences in treatment between older and younger Gurkha soldiers was justified on the same grounds as the nationality distinction and no finding of violation could be made.

Read UK Human Rights Blog here.

Discrimination, Pensions