The fight for Gurkha justice is not over

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By Risa Tan on

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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