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The fight for Gurkha justice is not over

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Eurocentrism is making it harder for Gurkha children to settle in the UK

After the Gurkha Justice Campaign led by Joanna Lumley won Gurkhas the right to settle in the UK, their adult children now face a more insidious injustice. When applying to reunite their families in the UK, they are subject to a Eurocentric interpretation of their right to family life under the European Convention on Human Rights (ECHR).

By the time all Gurkhas who had served in the British army were rightfully allowed to settle in 2008, many of their children were already over 18. The Immigration Rules require adult children “to demonstrate the most exceptional compassionate circumstances” before they are granted leave to settle with their families in the UK. Adult children of Gurkhas often fail this narrow test, and appeal to the courts on the grounds that the rejection of their settlement application is a violation of their right to family life.

The situation was somewhat improved by the Court of Appeal in R (Gurung and others) v Secretary of State for the Home Department in 2013. The court recognised the historical injustice the Gurkhas had faced since they were not allowed to settle in the UK until only recently. The judges held that there would be a “strong reason” to allow an adult child to join his family in the UK if, but for this historical injustice, the adult child would have been granted settlement as a minor child.

Yet, injustice remains in a more pernicious form.

In order to prove that there has been a violation of the right to family life, family life must be proven to exist in the first place. In Gurung, two adult children were held not to have family life because they did not show the “requisite degree of emotional dependence”. The characterisation of family as an emotional tie can be considered unique to Western culture. Therefore, by having to meet a Eurocentric test for family life, the Gurkhas are automatically placed at a disadvantage.

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Although the Court of Appeal said that the test for family life is “highly fact-sensitive”, the facts into which courts are likely to inquire are specific to Western family life. For example, in order to show emotional dependency, courts tend to be concerned as to whether there are displays of affection between the Gurkha father and child. Displays of emotion between parent and child are far less common in Asian families than in Western ones. It is well-documented that Asian parents are more likely to communicate affection in distinctively unemotional ways, such as by providing “instrumental support”.

But the lack of overt emotional support should not make their family life any less legitimate.

This issue affects not only the Gurkhas, but any individual identifying as Asian who may need to vindicate their right to family life in a British court. In the recent case of Carvalho Pinto v Portugal (2017), the European Court of Human Rights in Strasbourg emphasised that domestic courts should not base their judicial reasoning on ageist and sexist assumptions. It follows that courts should not base their rulings on assumptions about culture either.

To a large extent, it is fair that the laws of a country are not culture-dependent. One would hope, for example, that criminal law did not excuse an individual simply because his illegal behaviour was acceptable in his own culture. The law must be applied equally. In order for it to be applied equally, the law must not unfairly disadvantage particular cultures. We must ask for the law to be appreciative of our differences.

In Singh v Secretary of State for the Home Department (2015), the Court of Appeal held that:

“The love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life.”

In other words, emotional dependency is not sufficient to prove family life. The court should have stated that it should not be necessary either.

To establish the existence of family life, Strasbourg case law suggests that courts should not only inquire into the existence of dependency (emotional or otherwise), but also the existence of obligations between father and child, such as maintenance, the rights to inheritance, and matters of disposition. Even then, courts must realise that these concepts manifest differently in other cultures.

For example, Asian cultures tend to emphasise the value of filial piety. As such, in Asian jurisdictions such as Singapore, not only do parents have a legal obligation to provide for their children, but aged parents can also sue their children for lack of maintenance. Given the immense cultural differences in what family life looks like, it may be helpful for courts to have regard to expert evidence on Nepalese family life when deciding a case involving Gurkha adult children.

More generally, the problem of Eurocentricism in law demonstrates the importance of increasing diversity in the judiciary, a topic recently brought into the spotlight by Lady Hale. This will hopefully lead to judicial perspectives that are more inclusive of other walks of life.

In order for there to be a proper inquiry into whether an individual’s right to family life has been violated, courts and legal practitioners must not be afraid to wade into the specifics of a very different culture. Law must be willing to acknowledge family life where it exists, even when it can look unfamiliar.

Risa Tan is a law student at the University of Oxford. She is the co-chair for the Oxford SU’s campaign for racial awareness and equality.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

13 Comments

Anonymous

You kind of defeated your own objective with this article. The fact that you recognise the law should not be culturally-dependent reflects this as why should the law bend to cultural nuances like it arguably already does when it comes to certain Middle Eastern cultures at the cost of native citizens in areas such as crime or housing? Furthermore, why is Eurocentrism an issue when the UK is a European country? Would you expect the laws in the Middle East or stricter parts of Asia to bend for a British citizen? This is especially considering the countries which actively discriminate against those who don’t follow the state religion and/or are foreigners?

Anonymous

A) Because the Gurkhas served in the British army and have an established right to settle so don’t make this about immigration in general
B) if they don’t have a right to settle, they have a right to private and family life under Article 8 of the ECHR which has to be applied equally and in order for it to be applied equally it needs to not disadvantage people by virtue of culture
C) wow really racist assumption about middle Eastern cultures…

Anonymous

WE OWE FAR MORE TO THESE BRAVE WARRIORS AND THEIR FAMILIES THAN WE DO TO MANY OTHERS WHO LIVE HERE BUT WISH TO BLOW US UP.

BRING THEM ALL OVER AND LET THEM STAY!

Ciaran Goggins

Of course, none of the Umma died in the trenches…

Anonymous

So basically you want brown people law apply to brown people, and not white people law to apply to brown people?

Anonymous

What utter shit.

Anonymous

Said a Home Office spokesman.

Trumpenkrieg

>Read up to ‘Eurocentrism’
>Stopped reading

Not Amused

This really highlights the shallowness of the argument that Leave voters are de facto racist. A good portion of the people who are sneered at for voting leave would very happily allow the Gurkha to have full immigration rights (as I am sure would many Remain voters).

The author is right to focus on Europe. It is right to see the EU as a protectionist club. It has been, but we are leaving.

It was always too simplistic, and thus unworthy of lawyers to simply suggested that anyone wishing to control (or change) immigration policy is racist. Of course such policies can be abused; but any actual racism would be immediately exposed and rightly condemned. It is now perhaps time for a slightly more mature debate. Rights of British citizenship are a valuable commodity, desired the world over. Those born to those rights should be conscious of their privilege. Unfortunately, we can’t share those rights with everyone. So with whom can we or should we share those rights?

I’d support extending rights to these adult Gurkha children. But that’s the easy part – giving things away is easy and popular. We are also going to have to deny rights to some others. Who is brave enough to do that? When the time comes, will we support our politicians tough choices? Or will we be lazy and cheap and decry them all as racist?

Anonymous

It’s fine to limit immigration of course but just not on unjustifiable grounds like lack of family life where there clearly is family life?

Anonymous

I cannot believe that you are actually a lawyer. In interpreting the ECHR this obviously has nothing to do with the EU. In addition, this is an appeal to the ECHR under British immigration law – if the British wanted to change their laws on this (um, I dunno, to let Gurkas who had served in the armed forces into the country in the first place!?), then this would not be something that the EU could overrule.

You are also fooling yourself if you think that British immigration policy will change *if* we leave the EU – I saw some foolish Brexit voters complaining on TV that they aren’t getting any response from politicians who told them that it would be easier to get south Asian chefs into the country to serve in their restaurants. Quelle surprise! You must also be somewhat lacking in the critical thought processes to think that the UK can ever be free of the EU, or for that matter of any foreign jurisdiction we wish to trade with (look at the Bombardier and Boeing debacle, for example). You aren’t still one of those flag waving Brexiteers who truly believes the UK is going to do great trade deals with the USA, or India, are you!? On the Indian front, news just in, India’s biggest trading partner is… (no, wait for it)… the European Union.

Apart from that, the whole Eurocentric argument is fundamentally flawed, by the simple argument that the ECHR is a product of Eurocentrism, and without it these offspring would not have a hope of making any appeal at all. If their parents ended-up in Japan, Thailand or Srilanka what legal clauses would the offspring be able to invoke to gain immigration rights? Probably none.

Dumkopf!

Anonymous

I had no idea rights could be european…always thought they were universal. you learn something new every day it seems.

Col. T. Bradley, Attorney at Law, retired US Marine.

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