The daughter of a British Army Gurkha veteran faces being separated from her father after losing the latest round in her four-year legal battle to live with him in the UK.
The case could have far-reaching consequences for the families of Gurkhas who have settled in this country following a high-profile campaign on their behalf, in recognition of the wartime sacrifices they had performed for Britain.
In 2009 the actress and TV presenter Joanna Lumley helped Gurkhas who retired before 1997 win the right to settle in the UK, leading to an estimated 8,000 former soldiers and their families moving to the UK.
But in the latest case a senior immigration tribunal judge has overturned a previous ruling which would have allowed the daughter of a former Gurkha who served in the British Army for 15 years, before retiring in 1993 with exemplary military conduct, to live in Britain with him.
Deputy Upper Tribunal Judge Kelly said that judges had made mistakes in the case by failing to properly address the question of whether Poonan Shrestha, 30, was financially dependent on her father, Bhishma Bhusan Shrestha, who now lives in London.
Miss Shrestha had originally applied to come to the UK with her father and her younger
brother. While her brother’s application was granted her own was refused because she had been married.
In court Miss Shrestha claimed her marriage had lasted only a matter of months and that “she had never ceased to be emotionally and financially dependent upon her father”.
She also claimed that her marriage and brief cohabitation with her husband had not interrupted the family life she had enjoyed with her father from childhood to the present day.
But Miss Shrestha must now have the case heard for a third time after Judge Kelly ruled that a the previous hearing had failed to establish whether she was in fact financially dependent on her father.
He stated in his ruling: “Without such findings, it was not possible to say whether the appellant could overcome the first hurdle in the Razgar analysis (establishing the existence of family life) prior to considering the issue of proportionality. It follows that this appeal must be allowed on both grounds and the decision of the First-tier Tribunal must be set aside.”
Judge Kelly also ruled that the earlier hearing had failed to establish how long Ms Shrestha had lived away from her father
He said that for her to appeal to live in Britain to be successful she must “establish the existence of family life with the former member of the Brigade of Gurkhas, whose right of settlement in the United Kingdom has thus belatedly been recognised”.
Judge Kelly went on to state that if that right can be established then the court must consider that what he described as the “historic injustice arising from the inability of a former member of the Brigade of Gurkhas to settle in the United Kingdom” is likely to “weigh heavily in favour of an adult family member of such a person in assessing the proportionality of excluding that person from settlement in the United Kingdom”.
Miss Shrestha’s barrister James Khalid said: “At present, Poonam is in Nepal and remains dependent on her parents for financial and emotional support, she is unemployed and feels aggrieved that she is being denied her entitlement to live in the UK with her family. There is nobody in Nepal who is able to provide for her financially or emotionally.
“Her parents and sibling are all living in the UK. Miss Shrestha’s parents and sibling miss her every day and are also aggrieved by the refusal to allow her into the country. The parents say that they will maintain and accommodate her without recourse to public funds and that she is expected to find work when she comes to the UK.”
Many of the Gurkhas who won the right to move to Britain live in the traditionally military town of Aldershot, where it is estimated that one in 10 of the town’s 90,000 residents come from Nepal – many as a direct result of the campaign Lumley helped lead. However, many are elderly and found themselves living in poor accommodation.
Following the success of her campaign Lumley said: “We should remember that there would be no Great Britain, no National Health Service and no welfare state were it not for the blood spilt by Gurkhas and others to protect this country in much darker and more dangerous times than those we face now.
“All other foreign and Commonwealth soldiers had the right to settle in Britain, regardless of the cost to this country: but only the pre-1997 retired Gurkhas were denied this right.”