Bracketing Gurkha-Nepal Belonging

There are two ways to consider how bracketing Gurkhas to Nepal transpire in the legal arena. The first is that where assertions of belonging are connected to claims to rights and resources, it should also be said that belonging is accompanied by obligations. The second has to do with how such bracketing sheds light on the idea of deservedness by birth and nationality. I first trace obligations to the 1947 Tripartite Agreement (TPA) that arose after Indian independence and where both the British and the Indians were keen on retaining Gurkha service (Gurkhas were recruited and trained in British India territory). Trilateral agreements included consent for establishing Gurkha units both in the British and the Indian Army. These three parties also agreed on a few further points. The Maharajah of Nepal would agree to his subjects serving with the British Army as long as they were not deployed to fight against Hindus. Furthermore, the Gurkhas would be able to be withdrawn at any time if Nepal was involved in any war so that they could be recalled to defend its territory. It is for this reason that the “Government of Nepal regards retention of Nepalese nationality while its troops serve in the Brigade of Gurkhas as of considerable importance.”³⁴

The recruitment and enlistment of Gurkhas were allowed to take place in India until recruiting stations were established in Nepal, which did not happen until 1952. Gurkha salaries and terms of recruitment were to be equivalent to rates of the Indian Army. These were put in place so as to not allow the British Army any unfair advantage in enlisting the Gurkhas on more favorable terms and thus undermine the Indians. This set of agreements and consensus reflect how belonging vis-à-vis the TPA and to Nepal for the Gurkhas are closely associated with the Gurkhas’ obligation to Nepal even while they serve in the British Army. A key component of the TPA notes:

Gurkhas would serve in the British Army in a dedicated Brigade reflecting the Nepali language, culture and educational standards. This was not a Brigade in the conventional sense of a deployment of various regiments and military units in a formation headed by a Brigadier, but a specialist Gurkha unit reflecting these unique arrangements and the continuing links to Gurkha culture.³⁵

The above is a clearly stated and official endorsement that institutionally brackets the Gurkhas’ belonging to Nepal in the interest of the country, even as they serve a foreign sovereign.

There are further ways through which bracketing Gurkhas to Nepal are talked about beyond obligations. These surface in relation to tradition, culture, heritage, and family life. Defense lawyers acting on behalf of the British MOD—in a case in which seven ex-Gurkhas alleged that they were subject to both institutionalized and systemic discrimination on the grounds of their race and/or nationality—noted why bracketing Gurkhas to Nepal was pivotal.³⁶ Following the enclosed brackets where Gurkhas are to be recruited from and retired in Nepal, defense lawyers reminded the court that Gurkhas “are Nepalese citizens and continue to be so during their period of service to the Crown.”³⁷ Upon their retirement, they “will return to Nepal and resume their place in Nepalese society.”³⁸ These brackets form the basis on which Gurkhas are then expected to be able to carry out their service with the British Army, without any issues in “maintaining their distinct Nepalese identity and safeguarding their cultural, religious and ethnic heritage.”³⁹ I previously discussed similar institutional bracketing of Gurkhas to Nepal as exacted through, for example, celebrating Nepalese festivals among the Gurkhas in Hong Kong and Singapore. Such cultural bracketing is thereby meant to sustain the cohesion and cultural homogeneity of the Gurkha community vis-à-vis Nepal (Uesugi 2019a), not unlike what these lawyers have indicated as well.

In congruity with citizenry and cultural bracketing, another way to maintain these brackets relates to the long leave per three years for which Gurkhas are eligible. In this case, the minister of state for defence Mr. Soames had stated in court, “The present entitlement of Gurkha soldiers to long leave every three years will remain. This recognises the continuing importance we attach to keeping the Gurkha soldier in touch with his home culture and roots.”⁴⁰ Following from bracketing Gurkhas to their roots, Mr. Soames then said that the initial long leave period of six months would be reduced by a month as communications have improved over time.⁴¹ In addition to bracketing that is rationalized through obligations, citizenship, and culture, the next dimension of such bracketing has to do with protecting the national interests of Nepal. The Nepalese government was “happy to permit them [Gurkhas] to be recruited into a foreign army, provided that they are not treated as mercenaries and the interests of their home country are protected.”⁴² It follows that “Gurkhas must not be allowed to drain Nepal of talent. They remain Nepalese citizens and will return there upon retirement. Hence the continued importance in 2003 of making special arrangements to maintain their distinctive religious, cultural and ethnic heritage.”⁴³

The maintenance of Nepali heritage and tradition also extends to how family life in Nepal is perceived to be organized by those outside of it. By this I am referring to suppositions about the gender division of labor and family life while the Gurkha husband or father is overseas during active service with the forces. With reference to a 1997 review of the Gurkhas’ TACOS, a press release statement mentioned how that review had to take into account “the need for Gurkhas to maintain close cultural and family links with Nepal” alongside the “modern circumstances of the Brigade.”⁴⁴ The assumption that follows this reads: “Gurkhas would wish to be accompanied for lengthy periods because there was a long established tradition in Nepal’s rural economy that the wives of Gurkha soldiers would remain in Nepal to look after the family property while their husbands served abroad and remitted money home.”⁴⁵ For the next generation, that is, the Gurkhas’ children, an accompanying assumption is articulated as follows: “Any children of the family would remain with their mothers in Nepal and be educated there. That factor is of some importance, given that their adult lives will be spent in Nepal.”⁴⁶ Assumptions about family life subsequently becomes a point of contention when the issue of Gurkha adult children’s rights to settlement in the United Kingdom is broached in the eyes of the law, and as I shall attend to below. In sum, the brackets that we see here essentially have to do with circumscribing Gurkhas to Nepal through such avenues of culture, tradition, legality, and family life—determined in order to bracket their belonging to Nepal and not to the United Kingdom. As an intended outcome, then, this approach places the Gurkhas and their families at the edge of belonging to the United Kingdom, in spite of their long service to the British.

Resisting Brackets of Belonging

Although I have by now made clear the contemporaneous practices of inclusion and exclusion where the acts of bracketing are concerned, I should also point out that bracketing belonging has been critiqued, if not resisted. Such resistance or push back further demonstrates how different social actors interpret inclusionary and exclusionary practices of bracketing in contrastive ways. In Limbu and others v Secretary of State for the Home Department, Entry Clearance Officer [2008], the lawyer for Gurkha claimants of rights to settle pointed out that the MOD has adopted a fairly stringent and rigid position.⁴⁷ This was in terms of what the TPA has set out or what the Nepalese government expects of its citizens even as they serve as Gurkha troops. He said:

I cannot fail to note the apparently reliable testimony of a former Colonel of the Brigade and others that Gurkhas were to be prevented by application of military discipline from marrying Chinese women when they were stationed in Hong Kong, or from leaving behind dependants who might have a right of residence in such places on redeployment or discharge. The opportunity to preserve cultural links with Nepal may certainly have been a historic assumption of the TPA but it is not for the Army to force cultural purity down the throats of Gurkhas irrespective of their wishes. Within the broad confines of the special arrangements that gave rise to the Brigade including the need to preserve Nepalese nationality during service with it, there is plenty of room for the dignity and autonomy of the individual to make informed choices.⁴⁸

Clearly, even if bracketed belonging to Nepal is encapsulated in the TPA, legal resistance is staged in the form of questioning whether indeed the Army holds the right to insist on “cultural purity” in ways that dislodges an individual’s autonomy of choice and action when it comes to where one attaches one’s sense of belonging. Either way, the larger implication of these relate back to the politics of belonging as I have discussed earlier. This is where the stakes involved, be it one being bracketed inclusively or exclusively out of a society, illustrate how both contexts are accompanied by consequences that relate to the determining of rights to settling in a country and other entitlements.

The following statement denotes unequivocally as to what would be at stake:

Far from wanting to be transported back to Nepal at public expense where opportunities for employment may be limited, these veterans who remained comparatively young men with long working lives ahead of them wanted to be given permission to remain in the United Kingdom, and in due course be able to apply for British citizenship.⁴⁹

Such unequivocation thus explains why brackets that preclude access to rights such as settlement in the United Kingdom have been questioned given the attendant consequences of further job opportunities. This is clearly of importance since Gurkhas usually retire in their early thirties if not forties, and thus a longer road lies ahead for further gainful employment, as well as the access to citizenship.

Deservedness by Birth and Nationality

While I have demonstrated how the imposition of Gurkha-Nepal belonging has taken place through legal avenues, not all actors are always in agreement with such imposition, hence my preceding discussion on resistance. That said, I now return to another point on this imposition by focusing on the issue of one’s birth and nationality. As a corollary to the obligations that Gurkhas are expected to fulfill to Nepal, bracketed belonging in legal terms does not allow overlaps in nationality, rights, and access to settlement. This is unlike bracketed belonging as experienced or practiced by interlocutors in the domains of the everyday, and the affective where they have shared with me, for instance, that they feel coexisting feelings of belonging to more than one country. The outright rejection of overlaps in nationality is exemplified in the following statement:

But the position of the ex British soldier and the ex Gurkha soldier on retirement is not analogous. While there will be a few exceptions, the former will have been born in the United Kingdom and will expect to retire in the United Kingdom. He may choose to retire to a more or less expensive country, but in that respect he would be no different from any other United Kingdom pensioner. By contrast, the Gurkha, born in Nepal and a citizen of Nepal, will retire to Nepal. It would be wholly irrational to fail to have regard to the very different circumstances that exist in Nepal and Great Britain when making provision for pensions on retirement.⁵⁰

The assumed country of retirement, traced to one’s nationality, was thus the justification provided to rationalize why the Gurkhas and British soldiers ought not to be treated as analogous. Having said this, it is also apposite to point out, on the one hand, that nationality as deservedness or as a basis for differential treatment might have appeared as disadvantageous for the Gurkhas. On the other hand, nationality is also upended as advantageous in terms of recruitment, pension, and leave matters. The solicitor, Mr. R. Singh, acting on behalf of the MOD as defendant against claims made by Gurkhas for reviewing pension arrangements noted:

The Gurkha Brigade can only exist in its present form if the Ministry of Defence applies a policy of recruitment that discriminates against all nationalities other than Nepalese. Discrimination on grounds of nationality is the founding principle indeed the raison d’être of the Gurkha Brigade. Those in the Brigade are also the beneficiaries of treatment denied to others in the British Army which discriminates against those others on grounds of nationality. Obvious examples are the ability to retire after fifteen years with an immediate pension and extended paid leave in Nepal.⁵¹

The above statement may be interpreted as a case of positive discrimination that is approbatory of Gurkhas and their Nepalese nationality, as compared to other nationalities for which enlistment into the brigade and access to these accompanying TACOS are not made available to such others.

Deservedness based on nationality can thus take on these two forms of either discrimination (from the point of view of Gurkha claimants who canvass for equitable pension arrangements) or advantage (in terms of how only Nepalese can be recruited and benefit from the attendant TACOS). In either form, tracing access and rights to one’s nationality, and bracketing these as simultaneously discriminatory or favorable, highlights how belonging and the stakes involved become politicized and made apropos in the legal domain. Mr. Singh furthers his argument:

So it is that the challenge before the Court, in conformity with those that have come before, proceeds from the premise that any benefit accruing to the Gurkhas from their different treatment (including the very existence of the Brigade) should be secure, but perceived disadvantages should be remedied. The claimants appear to regard discrimination on grounds of nationality as justified when it provides benefits but not when it gives rise to disadvantage. It is difficult to see why that should be so, when all of the differences, whether now of only historical interest or those continuing to have effect, flow from the unique position of the Gurkha Brigade in the British Army born of its long history of different and special treatment.⁵²

As shown in the above statement, it is clear that the exercise of bracketed belonging based on nationality avails itself as twofold. This depends on which vantage point one claims in arguing on this basis. The trope of Gurkhas claimants is that of discrimination based on their Nepalese nationality. For defendants who exercise rejection of the Gurkhas’ claims, the trope utilized, albeit still based on the factor of nationality, has to do with positive discrimination that has been argued to work advantageously for the Gurkhas. Such an interpretation adds not only to my position that belonging and not-belonging dovetail. Bracketed belonging and, in this case, traced to nationality, comes with both inclusionary and exclusionary mechanisms. These are contingent on which position is being taken up in the legal process. As said above, it can be approached as a matter of “disadvantage” or “benefits.”

Bracketing Gurkha-UK Connections

If the acts of bracketing Gurkhas to Nepal as deliberated on in the previous section place these migrant warriors in close proximity—both literally and figuratively—with Nepal, the same domains of interest can be identified in terms of how Gurkha-UK connections are established through itemizing the different forms of belonging to the United Kingdom. To begin with, while new immigration rules (IR) for Gurkha veterans were enacted in October 2004 in support of their rights to settlement in the United Kingdom, there were also veterans who were denied entry to settle as they were not discharged after 1 July 1997 as per the requirement of rule 276F (ii).⁵³ In order to table appeals to reverse such denial in the court, efforts have been made by claimants and their solicitors in working through the different aspects through which belonging to the United Kingdom is argued, this time, with reference to policy discretion. In Limbu and others v Secretary of State for the Home Department, Entry Clearance Officer and Entry Officer, reference was made to the Diplomatic Service Procedures (DSP): Entry Clearance Volume 1 General Instructions in outlining chapter 29.4, which laid out terms for discretionary considerations. Such considerations were meant as a response to settlement applicants who do not meet the requirements of the October 2004 new IR. The chapter contains the following provision: “Discretion may be exercised to waive these requirements [of 2004] in cases where there are strong reasons why settlement in the United Kingdom is appropriate.”⁵⁴ It is instructive to quote at length the following factors that discretionary consideration covers in Chapter 29.4:

• Strength of ties with the UK—have they spent a significant amount of time living in the UK, such as a three year tour of duty pre-discharge or three years living in the UK after discharge?
• Do they have any close family living in the UK? What proportion of their close family are in the UK as opposed to living in Nepal?
• Do they have children being educated in the UK?
• Do they have a chronic/long-term medical condition where treatment in the UK would significantly improve quality of life?

• If one or more factors listed above are present, ECOs may exercise discretion and grant entry clearance for settlement in the UK.
• Close family means immediate family, such as brothers, sisters, children, parents or grandparents.
• The requirements for an applicant to have completed at least four years service as a Gurkha with the British Army and to have been discharged on completion of their engagement should not be waived.⁵⁵

The above factors clearly serve as brackets of belonging for Gurkhas to the United Kingdom. These factors are codified as a set of indicators that provide the basis for an exercise of discretion for claims to settlement in the United Kingdom. Such a basis covers the range from one’s demonstrated connection to the United Kingdom (based on years of service), close familial relations not extending beyond their grandparents’ generation as an indicator of the need to reside in the United Kingdom, to their own children having received education, and indications of a need for health support and/or treatment that would wield significant impact on one’s quality of life. These factors together illustrate how possible indicators of the Gurkha-UK links and thereby rights to belong may be taken into account for legal provision of settlement for select veterans that would in turn circumvent IR rules updated in 2004.

What is interesting is the comparison between the list of factors for discretion laid out above, with what other factors that claimants themselves raise, in order to argue for rights to settling in the United Kingdom. In other words, while the components of Chapter 29.4 are legal items that are utilized to measure or gauge the strength of belonging for Gurkhas to the United Kingdom, the Gurkhas themselves have also drawn up their own list of criteria. For them, their own list serves as a key barometer to support their claims to entry and settlement as their way of bracketing belonging and thereby rights, to the United Kingdom. This other list of factors includes being wounded in action and being the recipient of awards for bravery, among other things—which all point toward risking one’s life and sacrificing one’s safety for the crown.⁵⁶ The assumption here, for these claimants, is that such sacrifice ought to translate into belonging and thus rights to entry and settlement in the United Kingdom.

Juxtaposing these two sets of factors as (consideration of) indicators of the Gurkhas’ belonging and rights to settlement in the United Kingdom therefore pertinently indicate that different social actors, including individuals, the state, and the law, are all involved in the exercise of bracketing belonging. Such bracketing is either exacted to the United Kingdom or Nepal—by adhering to a list of practices and criteria, or what has been termed as “qualifying conditions.”⁵⁷ Where claimants may mount their own set of conditions, these conditions need first to be legally accepted before any provision of rights or claims may be considered and/or processed. To put it clearly, “Gurkhas were never able to claim indefinite residence in the United Kingdom on the basis of their military service however long and gallant it may have been.”⁵⁸ Such qualifying conditions then arise as ambivalent areas that the law may not sufficiently be able to admit or quantify as criteria for granting ex-Gurkhas settlement in the United Kingdom. For example, while it was suggested that four years or more of service in the Brigade of Gurkhas prior to July 1997 “could not be sufficient to justify the favourable exercise of discretion”⁵⁹ for settlement in the United Kingdom, the court further inquired if (a) service amounting to a decade in the Brigade prior to 1997 would suffice; (b) injuries incurred during active service within these years of service would count; (c) Gurkha service in the Falklands was relevant; and (d) decorations for gallant service including the Victoria Cross would constitute a sufficient and relevant factor.⁶⁰ We are subsequently told in this case that the example of the Victoria Cross was not one of abstraction. The court heard that a Hon Lt. Pun was awarded this highest honor for war-time gallantry; a highest accolade that a sovereign can bestow. While he was initially refused admission, his case was subsequently personally reviewed by the Secretary of State, through which Hon Lt. Pun was then admitted for settlement.⁶¹

Despite the case of the Hon Lt. Pun, it remains unclear as to whether the above identified factors that cover the range from years of service to distinctions in battle would justifiably substantiate the “discretionary grant of settlement.”⁶² It was also pointed out that the Asylum and Immigration Tribunal (AIT) would not have been able to determine the issue that was not in accordance with IR, with reference to the Nationality Immigration and Asylum Act of 2002. It would be “impossible for an Immigration Judge to determine whether the decision had been in accordance with the law where the ‘law’ was so unclear as to permit conflicting decisions … in accordance with the policy by either granting or refusing entry clearance in an identical case.”⁶³ These legal dilemmas clearly exemplify how identifying brackets of belonging in this case of right to settlement enrolls a number of factors and structural actors including the AIT, IR vis-à-vis qualifying conditions, or criteria before the right to settlement may be legally meted out. Quandaries such as these require striking a “delicate balance between rigidity and flexibility” in order to form “such sensitive policies.”⁶⁴ Further clarifications of what constitute qualifying conditions or criteria for arguing rights to belonging and hence resources are forwarded as follows: “If factors such as ten years service are to be recognised as weighty along with injury in service, decorations for bravery, service in the Falklands conflict or similar matters, this should be identified by further specific examples so the parameters of the qualifying class can be identified” (my emphasis).⁶⁵ The “parameters of the qualifying class” here are representative of the very criteria that outline renewed brackets of belonging as aspired to or intended as legitimizing factors. In turn, these factors would translate into rights and entitlements—like those that the ex-Gurkhas are arguing for. However, brackets of belonging, as they are to be determined by the law and other social actors, do not change or are admitted easily. As recognized in the court, the “elements of a rational future policy” are yet to be ascertained. Therefore, a “fresh look seems particularly appropriate in the light of the evidence about the attitude of the Government of Nepal.”⁶⁶ The “fresh look” here points to careful legal considerations for new brackets of belonging, which would be in alignment with the Nepalese government’s stance. This has been recorded as never having “expressed opposition to retrospective settlement of Gurkhas in 2004 or before.”⁶⁷ If these newer brackets of belonging are to be legally passed, then it might be said that the “honouring of a historic debt” in recognition of the Gurkhas’ contributions to the United Kingdom would be realized.⁶⁸

Paying such a debt may also be interpreted in terms of what would qualify as exemplary of British national belonging. Ware (2010), for example, has talked about how such national belonging may be contingent on the patriotism of the soldier: “With a strong national identity the traditional rules are clear: one must be ready to kill and die for one’s country, or give up one’s children, in exchange for protection from the state” (2010, 323). Seen in this way, then, raising newer conditions would also shed light on the transactional aspects of negotiating belonging between ex-Gurkhas and the UK government. In principle, the transactional or reciprocal optics put forward via these conditions has to do with how if Gurkhas have sacrificed and fought gallantly for the crown, they should in turn be privileged with belonging and thereby rights in this military-transactional relationship. Those who have served the interests of empires have in certain instances been led to an expectation of reciprocity contingent on their service and loyalty; examples being the Nepalese Gurkhas as well as Surinamese from former Dutch Guyana who acquired Netherlands citizenship (Cohen 2022). The question lies in how this transactional relationship is going to be negotiated legally given the stakes involved for both parties. For migrant warriors such as the Gurkhas, the right to citizenship and abode may mean a better livelihood and more economic opportunities when compared to that lacking in Nepal. As for those who are older, the option to migrate to the United Kingdom would mean better living conditions and facilities relative to Nepal. For the British government, the conferment of citizenship unto the Gurkhas would imply a recalibration of patterns of resource distribution (cf. Uesugi 2019a). Deservingness to belong (Blachnicka-Ciacek et al. 2021) thereby includes the transactional and the reciprocal in the legal negotiation of belonging and rights.

Overall, if newer qualifying conditions or criteria would be legally accepted into brackets of belonging, then such new brackets or parameters of belonging would ipso facto translate into rights that the Gurkhas are championing for. The processes of arguing and pushing for legal bracketing to belonging by that means also unveil and bring to the fore what is at stake if such brackets are not expanded or rethought in terms of policy and the law. Amounting to an observation that “the legality of discretionary policies … seem in part internally contradictory” and where it is vital that “ECOs [Entry Clearance Officer] know precisely what discretion is being afforded to them, and for the AIT to know when the ECOs are acting in accordance with the law and when they are not,”⁶⁹ this goes to show the politics of belonging not only in the sense of what is at stake. More pertinently, legal structures in connection with immigration policies need to in concert determine where the brackets of belonging may be found and instituted in the case of the Gurkhas. In the words of Nick Clegg, the Liberal Democrat leader who had supported ex-Gurkhas for the right of abode in the United Kingdom: “If someone is prepared to die for this country, they must be allowed to live in it.”⁷⁰ In other words, national belonging and national identity also have to take into consideration, if and how armed forces such as the Gurkhas ought to be rewarded and respected in return or exchange for their sacrifice if not risk-taking (Qureshi and Zeitlyn 2013)—these considerations forming the gist of public opinion on Gurkha veterans’ rights to abode and other issues.⁷¹

When Brackets of Belonging Shift

Brackets of belonging can shift owing to immigrant policy changes that allow Gurkhas and their families to reside in the United Kingdom. This however does not automatically translate into further rights as well, as seen in Gurung and others v The Secretary of State for Defence [2008].⁷² In this particular case, Gurkhas who were claimants had complained that the new pension transfer arrangements that were enacted in 2007 were “irrational, and discriminate against them by comparison with other Gurkhas on the grounds of age.”⁷³ This was taken to contradict their rights based on Article 14 ECHR as well as Article 1 of Protocol 1 to the ECHR.⁷⁴ Specifically, and to demonstrate how shifted brackets may not necessarily lead to the provision of rights where pensions are concerned vis-à-vis living in the United Kingdom, it was stated that although an option was created for the Gurkhas to retire after having served four years in the Brigade, they do not “lose their Nepalese citizenship on doing so and can return there at any age if they wish.”⁷⁵ Furthermore, that “does not mean that there was an obligation or intention to provide a pension which would enable retirement to take place to the UK, still less to do so in any way which avoided the need to find another source of income.”⁷⁶ Where the GOTT is concerned, it was stated as well that there was “no internal contradiction in the GOTT, or a giving with one hand but a taking away with another.”⁷⁷ It was clearly indicated that the “aim of the GOTT was not to allow the Gurkha to retire in the United Kingdom on an Immediate Pension at thirty-three years old free from further labour, nor to allow other servicemen now to do so under the AFPS.”⁷⁸ It was subsequently proclaimed that the Gurkha claimants had misinterpreted the GOTT of having the “aim … to enable Gurkhas to ‘retire’ in the UK, at some unstated age.”⁷⁹ These examples revolving around the GOTT therefore point toward how brackets that shift can still mean that access to further pension amounts in order to retire in the United Kingdom continues to be foreclosed.

Another issue regarding the GOTT has to do with citizenship ties. The court returned to the 1997 Hong Kong handover moment where the United Kingdom had by then become the new home base for the Gurkhas. Therefore, the “HMFIR change which also affected qualifying dependents, and changes to MAS would all strengthen [the Gurkhas’] ties to the UK, and weaken those to Nepal.” In these contexts, legal discourse has it that “ties of citizenship and other ties remain.”⁸⁰ This assertion of Nepalese citizenship, despite all the various changes listed, importantly implies that irrespective of shifts in policy related to MAS or ILR, Gurkhas remain as Nepalis by citizenship, and are not British citizens. Even in the presence of shifts in bracketing (in this case, greater Gurkha affinity felt for the United Kingdom through all the policy and political changes), it does not necessarily translate into further or equivalent rights as compared to UK citizens. Similarly, even if Gurkhas were to be granted rights to settling in the United Kingdom, this is not automatically pegged to betterment in terms of pension issues:

If Gurkha veterans are to be allowed to come in as a matter of discretion because of evidence of compelling links through very long or very gallant service, that does not mean that their pensions based on historic terms of service must be uplifted. Perhaps they will choose to remain where they are and their money may go further.⁸¹

In this instance, there are many items and issues that Gurkha veterans have raised over the years and based on their argument that they belong (in terms of contributions, service and sacrifice to the crown). Their claims as put forward in the UK courts may be interpreted as well as attempts in pushing the needle toward their rights to recognition and others, labeled in court as a “moral debt” or “historic debt” owed to them by the United Kingdom.⁸² Even if not all of these issues may achieve legal success, or if such debts are not repaid in a manner of speaking, the very acts of registering their claims and appeals through the institution of the law and in line with immigration policies show how the brackets of belonging are made malleable. Such bracketing thereby shifts according to broader sociolegal structures and modes of boundary governance.

Redrawing brackets of Gurkha belonging to the United Kingdom by those in favor vis-à-vis the fulfillment of military service and sacrifice does not necessarily mean that Gurkha soldiers and British soldiers are thus to be regarded as analogous.⁸³ In a nutshell, the key inquiry here, when brackets shift, is captured in the following statement: “What the Government of Nepal wanted and indeed has obtained is that during service in the Brigade of Gurkhas, the soldiers remained Nepalese citizens and the links of allegiance to Nepal were not broken. The issue before the court is how should they be treated after they served?” (emphasis in original).⁸⁴ When these brackets shift due to larger immigration policies later on, such as that enacted from 2004 with regard to the eligibility of Gurkha veterans and their families for settlement and citizenship, this becomes a turning point. Newer brackets of belonging delineated arising from sacrifice and contributions of these Gurkhas and their families would mean that rights to settlement and citizenship are now made available to them. In January 2005, the secretary of state for defence announced a review of the Gurkha TACOS:

Gurkhas have spent an increasing proportion of their time in UK since withdrawal from Hong Kong in 1997, and successive amendments to the conditions under which they serve have recognised their changing role, status and personal aspirations. The most recent of these was their inclusion in the new HM forces immigration rule, which took effect from 25 October 2004. This has potentially far-reaching effects on the way we recruit and manage the brigade and care for its serving members, families and veterans. In addition, some public criticism and unease continues about the remaining differences between Gurkhas’ terms and conditions and those of the wider Army. We are, therefore, anxious to ensure that such differences are absolutely justifiable as well as fully understood and accepted by our Gurkha soldiers and want to ensure that the MOD’s position, both legally and morally, is beyond reproach.⁸⁵ (my emphases)

The above statement clearly reflects how brackets of belonging have begun to shift in parallel with amendments to the Gurkhas’ TACOS after 1997. The shift is registered first from the point of view of Gurkhas, where their role, status, and personal aspirations have altered and more importantly, have been duly recognized. The UK government, and the MOD in particular, have also had to rethink their perspective on how the Brigade of Gurkhas was now to be managed. Increasingly, such governance both in terms of the military and migration policymaking now extends to not only Gurkhas in active service, but those who have retired, including their families. This nod toward the wider Gurkha diaspora thereby manifest how these different actors form part and parcel of the processes of shifting brackets. It is their varied interests and aspirations that will be affected as a result of changes in legislation and immigration policies.

Following the above statement of the Secretary of State, the MOD in December 2006 later published the outcome of the wider TACOS review. Given the newer context whereby changes were made both to the IR and to Married Accompanied Service (MAS), the MOD review team noted that such changes were accompanied by further amendments to the “traditional assumption that British Gurkhas would retire in Nepal.” Moreover, the future ahead now points toward a scenario where “Gurkhas could be expected to increasingly to regard the United Kingdom, rather than Nepal, as their family base.” Said in a different manner, Gurkhas, prior to 1 July 1997, were “not in an analogous position to the rest of the British Army.” This is because they were mainly based overseas, primarily in Hong Kong and elsewhere. Thus they “had little or no opportunity to develop the close physical ties needed to satisfy the immigration regulations.” Such a situation was then altered after 1 July when the Gurkhas became UK based.⁸⁶ This statement is telling for two reasons. The first is how 1 July becomes the defining and precise moment of change in bracketing, for which Gurkhas before and after this important date are assumed to lean on either Asia or the United Kingdom as home respectively.⁸⁷ The second and more crucial reason has to do with how an exemplification of “close physical ties” form a paramount factor or key criterion in order for Gurkhas to “satisfy immigration regulations.” Demonstrating these ties could thereby facilitate rights to residence in the United Kingdom.

Additionally, it was also becoming clearer to the MOD that “the remaining differences between Gurkha terms and conditions of service and those applied to the rest of the Army were increasingly open to legal challenge.”⁸⁸ There is at this point both immigratory and legal recognition of the Gurkhas and their families, owing to new brackets of belonging that can now be translated into these rights. When the UK prime minister noted that the Gurkhas have “served this country with great skill, courage and dignity… . They have made an enormous contribution not just to our armed forces but to the life of this country and it is important their commitment and sacrifice is recognised,”⁸⁹ the home secretary David Blunkett added:

Throughout their history, the men of the Gurkha Brigade have shown unquestioning loyalty to the Queen and the people of the United Kingdom … I am very keen to ensure that we recognise their role in the history of our country and the part they have played in protecting us. This is why we have put together the best possible package to enable discharged Gurkhas to apply for settlement and citizenship. I hope that the decision I have made today will make our gratitude clear.⁹⁰

While I have earlier indicated that qualifying conditions (not unlike those pronounced above) as put forward by Gurkha claimants did not shift brackets of belonging, these conditions are in this particular instance now admitted into brackets of belonging as denoted by the prime minister and the home secretary. Such rights to discharge in the United Kingdom and access to citizenship are encapsulated as follows:

Since April 2007 discharge has been able to take place in the United Kingdom… . Gurkhas can now also count military service anywhere in the world towards the period of qualifying residence deemed to be in the United Kingdom, for the purposes of naturalisation, although citizenship can only be granted once they have left the Brigade of Gurkhas. These changes were made without objection from the Government of Nepal, just as earlier they had no objection to indefinite leave to remain being granted to Gurkhas.⁹¹

Given changing regulations that were promulgated since April 2007, rules and thereby brackets of belonging have shifted and thus renewed criteria or qualifying conditions for naturalization and citizenship, as well as location of discharge, differing from the previous context of Nepal. These changes would, in Laksamba et al.’s (2013) view, reflect the temporal character of inequality and fairness. For Laksamba and his coauthors, it is not only a matter of dealing with the past, but that “righting things for the present and future should take precedence” (2013, 58). Changes such as these therefore reflect not only the mutable nature of bracketed belonging. They highlight the very temporal transience of brackets that (would continue to) alter in close relation with wider shifts in the legal and immigratory domains of governance. In sum, it can be argued that if brackets of belonging are intimately associated with attendant rights and resources in the case of the Gurkhas, then it remains exigent for brackets of belonging to exist interdependently and compatibly with law and policy in the context of the United Kingdom.

Bracketing Family Life for the Gurkhas

Aside from sociolegal bracketing stipulated between the United Kingdom and Nepal, UK policies and immigration rules have also been meted out in regard to bracketing the family unit for Gurkhas and their adult children. The discussion in this section therefore extends my earlier analysis of how bhanja and bhanji relate to where home is and their sense of belonging in a different manner; now illuminating both affective ties as well as legal and practical considerations where rights to settlement in the United Kingdom are concerned. Arising from the October 2004 IR that permitted Gurkha soldiers with at least four years of service and who had retired from the British Army either on or after 1 July 1997 the grant of settlement in the United Kingdom, the Diplomatic Service Procedures (DSP) was issued at the same time. The DSP Chapter 29 provided a set of operational instructions to Entry Clearance Officers and also outlined policy guidelines with regard to Gurkha dependents who were over the age of eighteen.⁹² Although Chapter 29 ceased effect as of February 2009, a further policy, SET 12, was published based on the same set of terms. The key points to bear in mind from para 29.14 of the DSP are as follows:⁹³

It is not the intention to split a family unit solely because the dependant is 18 years of age or over. Applications for settlement from dependants who are 18 years of age or over will be considered and discretion to grant settlement outside the rules may be exercised in individual cases. Dependants over the age of 18 need to make separate individual applications and pay the appropriate fee. In assessing whether the settlement in the UK is appropriate the ECO should consider the following factors:

• one parent or a relative of the applicant is present and settled; or being admitted for, or being granted, settlement in the UK under the HM Forces Rule;
• the applicant has previously been granted limited leave as a dependant of a member of HM Forces;
• the applicant has been, and wishes to continue, pursuing a full-time course of studies in the UK;
• refusal of the application would mean that the applicant would be living alone outside the UK and is financially dependent on the parent or relative present and settled; or being granted settlement in the UK under the HM Forces Rule;
• the applicant would find it very difficult to function because of illness or disability without the help and support of their parent or close relative in the UK.

If one or more of the factors listed above are present, the ECO may exercise discretion to grant entry clearance for settlement in the UK.⁹⁴

The above guidelines, subject to discretion and therefore which are “not necessarily determinative,”⁹⁵ form brackets of family belonging that thereby ought to translate into the right to settlement in the United Kingdom for adult children of the Gurkhas. Bracketing the family unit is not so much just about kin relations. It is rather about permitting Gurkha families settlement in the United Kingdom adjudicated on a needs basis and arising from forms of demonstrable dependency as justification. Only when these criteria are deemed to have sufficiently been met are adult children granted settlement rights. The standout point about such family policymaking lies in how affective and emotional aspects of familial relations become recruited as one of the key criteria for determining if a particular child therefore holds the right to settlement. In principle, this right to settlement in the United Kingdom has been announced by the UK government below:

The government had made it clear that it wished to acknowledge the role played by the Gurkhas in the history of the UK and had expressed the intention of putting together the best possible package to enable discharged Gurkhas to apply for settlement and citizenship. These statements were made with the Military Covenant in mind and the policy was designed to ensure that ex-Gurkha soldiers would be able to enjoy their right to remain in the UK with their family members including dependants over the age of 18.⁹⁶

Court cases that I have analyzed pertaining to Gurkha adult children and their claim if not follow-up appeal for the right to settlement in the United Kingdom reflect how the DSP was contested and argued in two salient ways. The first has to do with terms of the difference between IR and policies. The second pertains to how a family unit is to be conceived, with ramifications for rights of settlement and dependency. It should also be noted that the purpose of the DSP is “not to facilitate the settlement in the UK of adult dependant children” and that it “recognises that such children may be granted leave to enter under rule 317(i)(f) and if article 8 requires it.” Adult children are therefore “not granted leave to enter unless there are exceptional circumstances.”⁹⁷

Where the difference between IR and policies is concerned, it has been stressed in Entry Clearance Officer v UR and others [2010] and Entry Clearance Officer v KG [2011] that IR have been elevated to a status that may be read as akin to the law. Therefore, IR “must be construed more strictly than was the case in the past.”⁹⁸ In contrast, policies are “by their nature”⁹⁹ “meant to be applied flexibly” and thus mean that there is some room for the “sensible exercise of discretion.”¹⁰⁰ This would mean that the wording in policies do not have to be “construed with all the strictness of a statute.”¹⁰¹ Such definitional contrast between IR and policies have been invoked in cases where adult children of Gurkha have filed claims and follow-up appeals in pursuit of their right to settlement in the United Kingdom. I raise two examples here. The first is taken from Entry Clearance Officer v UR and others [2010], which comprises three conjoined cases.¹⁰² There were three appellants who had put up appeals against an ECO who had refused their 2009 applications as overage dependent children of a retired Gurkha who was granted the ILR in 2006. The ECO acted on the basis of these three appellants who were actually not living alone. They were siblings who were living together in Nepal. This contradicted how the ECO had interpreted the DSP fourth bullet point about applicants who ought “to be living alone outside the UK.” Immigrant Judge Gillespie who presided this case allowed the appeals and for entry clearance to be granted. This was given that the appellants were indeed “living alone outside the UK,” even if they were technically living together in Nepal. Specifically, the three of them were living in a house that was rented by their father, and in which they shared with three other male cousins. A favorable exercise of discretion was adopted by Gillespie to support the appeals.

Another important point of contention raised in this case example had to do with another of the criteria in order for Gurkha children to obtain the rights to settlement in the United Kingdom. This had to do with an “unusual degree of emotional dependency” between adult children and their Gurkha parent that had to be established before the former could be granted permission to “settle with a parent in this [United Kingdom] country.”¹⁰³ Such emotional dependency as a key point was the one that led to the rejection of Roshan Ghising’s appeal for settlement—the case that I outlined at the outset. Ghising’s appeal was turned down as he was not able to demonstrate deep (enough) emotional ties with his parents. Besides, Roshan Ghising had also made evident that he was able to live independently and was able to support himself.¹⁰⁴ For the three appellants here then, it was argued against them that financial dependency would not suffice as a condition to allow their settlement in the United Kingdom, for they would have to demonstrate emotional dependency as well. Senior Immigration Judge McKee who presided over this appeal case of the ECO arrived at a decision to accept the ECO’s position. He passed his judgment for the three appellants to apply again to the ECO in order for a “fresh decision to be made” regarding their application for residence rights in the United Kingdom.¹⁰⁵

The second case example that I raise here to exemplify the legal contention of terminology between IR and policies relates to that of Entry Clearance Officer v KG [2011].¹⁰⁶ Fairly similar to the above case where the three appellants were technically not living alone outside of the United Kingdom given that they shared their house in Nepal with other relatives, the present case also saw the appellant, a Miss KG who was living at her father’s house. Moreover, the house was shared with her uncle and his children. In her situation then, she did not meet the criterion listed in the fourth bullet point concerning living alone. If so, she could then have been categorized as a “stranded sibling” in need of support—which is deemed to be something to eschew based on this fourth bullet point. In other words, Miss KG had both “support and companionship” from her uncle and cousins.¹⁰⁷ Borrowing from a separate case, the issue of living alone had also been debated as such. The “fact that there may be two siblings in Nepal did not change the fact that both of them would be separated from their family members in the UK; they would remain stranded dependants as much as a single stranded dependant.”¹⁰⁸

That said however, this case proceeded with further illustration of evidence and from oral testimonies provided by both Miss KG and her father. The evidence collectively denoted both emotional and financial dependency of the former on the latter and other family members. Miss KG is said to suffer from mental retardation and chronic seizure disorder. Through the copious bundles of medical prescriptions and doctors’ notes accumulated over the years, it was confirmed that there is a “continuous need for medication.”¹⁰⁹ Furthermore, not only did Miss KG rely on her uncle in Nepal, she was also supported financially by her father. He had continuously sent “generous remittances” to Nepal “amounting to £1,000 a year for her upkeep and for her medication.”¹¹⁰ Judge McKee who had also presided over this case, noted that Miss KG’s father had first wanted to “establish himself in this country” and to be gainfully employed before arranging for Miss KG to be brought over to the United Kingdom. On the basis of these evidences, McKee noted that “there is family life between the appellant and her parent, going beyond the normal emotional ties … and that the refusal of entry clearance interferes with that family life in a manner sufficiently grave to engage the operation of Article 8.”¹¹¹ Article 8 of the ECHR—which was invoked in Miss KG’s case—has to do with the situation where if “human rights are argued, they should be determined in advance of any argument based on discretion: if the claimant’s human rights entitle him to enter or remain in the United Kingdom, any discretionary power to allow him to do so is otiose.”¹¹² The core premise of Article 8 concerns the right to both one’s private and family life, as well as home and correspondence. In the case of Miss KG, McKee had argued that “her mental state renders her dependent on her parents in a way that a normal adult would not be.”¹¹³ Contingent on having met the criteria of the DSP, and along with Article 8 of the ECHR, McKee allowed Miss KG’s appeal for entry clearance into the United Kingdom.

The above two cases are illustrative of how the bracketing of a family unit transpires in order for adult Gurkha children to be awarded the right to join their Gurkha parents in the United Kingdom to live there. Not only do we learn about the conditions or criteria for how such settlement claims and/or appeals are to be made on the basis of residential arrangements (living alone), financial and emotional ties and dependency, as well as ability (health), the notional tussle of terminology between IR and policies further complicates the matter.¹¹⁴ Such a tussle sheds light on how such familial belonging and its contours may be resisted, debated, and interpreted in different manners in court that hold import in the consequences of residence for Gurkha adult children and their families in the United Kingdom. The complexity of what a family unit and family life entails is aptly encapsulated in Lord Bingham’s speech.¹¹⁵ His 2007 speech featured at a House of Lords hearing that also intertwined with the core values that Article 8 exists in order to protect:

Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this groups seriously inhibits their ability to live full and fulfilling lives. Matters such as age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural conditions in the country of origin and many other factors may all be relevant.¹¹⁶

There is ostensibly a balance point to be mediated if not achieved in weighing both the universality of human rights (as encapsulated in Article 8 for example) as well as the particularity of cultural norms (as reflected in Nepalese customs, for example).¹¹⁷ Adopting cognizance of the particular—and in this case Nepalese customs—also reflect importantly on the sustained transnational links that continue to formulate Gurkha/Nepalese identities in the UK process of the legal bracketing of family units and familial lives.

Taken from a broader viewpoint then, this process reiterates a concomitant bracketing that is taking place between Gurkha families residing in the United Kingdom, with Nepal, as a part of legal processes that determine if they (Gurkha adult children) are to be awarded the rights to settlement in the United Kingdom as a family. At the level of the individual, Roshan Ghising’s case (albeit rejected) included a demonstration of his close connection to the United Kingdom based on the following circumstances—he had arrived in the United Kingdom in 2007 from Nepal to study. By the end of 2010 he had completed two courses in Business Management at colleges in London. At the time of his hearing, he had enrolled since January 2012 for an MBA course at the University of East London, which was to conclude in June 2013. Finally, he has “founded a life here [United Kingdom] … and has friends and a social network,” and where he has also passed both the requisite English test as well as the Life in the UK test, on top of his driving test.¹¹⁸ In view of the above complexity and entanglements of various factors, then, bracketed belonging in terms of family units interweave both the sociolegal as well as the affective and emotional. It reveals at the same time the porosity not only of definitions of familial belonging, but those relating to policies such as the DSP where the exercise of discretion is concerned. While the law and immigratory rules and policies delineate how familial belonging ought to be verified, this process also determines where home and family life may be for Gurkha veterans and their families. In the process, there is continuity through legal provision that permits Gurkha diasporic presences across different parts of the United Kingdom as I shall further illuminate below.