The Upper Tribunal has dismissed an appeal by the daughter-in-law and grandchildren of a former Gurkha. The tribunal held that the historic injustice suffered by Gurkha veterans did not make the refusal of entry clearance disproportionate on the facts of their case.
It confirmed that where a Gurkha historic injustice argument is raised, it is not enough to establish that the Article 8 right to family life under the European Convention on Human Rights is engaged. The appellant must also show a causal connection between the historic injustice and their present circumstances. This case is Gurung & Others (Gurkhas; historic injustice; Article 8) Nepal [2026] UKUT 191 (IAC).
Background
Gurkhas are soldiers from Nepal who have served in the British Army for over 200 years. The three appellants in this case were the daughter-in-law and two grandchildren of a former Gurkha, Ram Bahadur Gurung and his wife, Bahaiku Gurung.
Ram Bahadur Gurung served in the Brigade of Gurkhas between 1948 and 1963. He died in 1984. Bahaiku Gurung later moved to the United Kingdom in 2012, having been granted leave as the widow of a former Gurkha. Ram Bahadur Gurung and Bahaiku Gurung had a daughter and a son.
The daughter and son joined their mother, Bahaiku, in the UK in 2023. They made an application for leave to settle in the UK on the grounds that they were children of a former Gurkha, which was initially refused but succeeded on appeal.
The son’s wife and children remained in Nepal after he moved to the UK in 2023. The son’s wife and children are the appellants; they made an application for leave to enter the UK in April 2024, which was refused.
The First-tier Tribunal accepted that the appellants shared a family life with their family members in the UK which engaged Article 8. That finding was not challenged. The issue before the Upper Tribunal was whether the historic injustice meant that refusal of entry clearance was a disproportionate interference with the appellants’ family life.
The historic injustice
The historic injustice refers to the less favourable treatment of Gurkha veterans compared with other Commonwealth citizens serving in the British Army. Gurkhas discharged before 1 July 1997 were denied an opportunity to settle in the UK until later policy changes began to address that position.
The Upper Tribunal reviewed the line of authority on historic injustice, including Entry Clearance Officer v NH (India) [2007] EWCA Civ 1330 and AP (India) v Secretary of State for the Home Department [2015] EWCA Civ 89.
The authorities establish that historic injustice can be a powerful factor in the Article 8 proportionality assessment, but only where there is a sufficient causal connection between the injustice and the appellant’s circumstances.
The correct approach
The Upper Tribunal set out the correct approach when considering cases involving historic injustice.
First, the tribunal must decide whether the right to family life under Article 8 is established. Where the case concerns adult children or adult relatives, the ‘additional elements of dependency’ test is required. This means dependence involving more than normal emotional ties. This test was recently clarified in IA v Secretary of State for the Home Department [2025] EWCA Civ 1516.
Second, if Article 8 is engaged, the tribunal must consider whether interference is justified. The tribunal must assess whether there is a causal connection between the historic injustice and the appellant’s circumstances. The Upper Tribunal rejected the submission that once Article 8 was established, the historic injustice should normally require the appeal to be allowed.
The key question is whether, ‘but for’ the historic injustice, the appellant would have settled in the UK already. The tribunal noted that while causation should not be applied ‘unduly rigorously’ (following AP (India)), a speculative possibility is not enough to establish a causal connection.
Third, the tribunal must carry out the proportionality assessment. Where causation is established, and the Secretary of State relies only on the public interest in maintaining effective immigration control, the balance will normally fall in favour of the appellant.
The Upper Tribunal rejected the argument that historic injustice should be treated as an ongoing injustice affecting all Gurkha families even after the Gurkha veteran or family members have settled in the UK. That approach, the Upper Tribunal held, would treat the convention as a mechanism for turning back the clock.
Applying the test
The decisive issue was causation. The First-tier Tribunal had found that the appellants were too remote from the historic injustice – describing them as, at best, ‘tertiary victims’. They were at least two steps removed from the original victim – Ram Bahadur Gurung, the former Gurkha. The Upper Tribunal held that this was a finding open to the judge on the evidence.
The factual point was stark. Had the former Gurkha settled in the UK on discharge in 1963, or had the injustice been remedied before his death in 1984, it was extremely unlikely that his son would have remained in Nepal, married the first appellant, and had the two children with her. This was found too remote and speculative to establish causation.
The First-tier Tribunal had been entitled to give the historic injustice little weight in the proportionality assessment. The appeal was therefore dismissed.
Comment
This is an important limiting decision in Gurkha historic injustice appeals.
The Upper Tribunal confirms that historic injustice is not a free-standing answer to the public interest in immigration control. Its weight depends on a sufficiently close causal connection between the historic injustice and the appellant’s circumstances.
In practice, the focus of appeals where family life is established shifts to fact-sensitive questions of causation. The further removed an appellant is from the original Gurkha veteran — whether by generation, marriage or the passage of time — the harder it may become to show that they would realistically have been in the UK but for the historic injustice.
The decision is particularly significant for adult relatives whose family life was formed long after the Gurkha veteran’s discharge or death. The Upper Tribunal’s reasoning suggests that where an appellant’s case depends on a speculative chain of later events — such as marriages, births or decisions to remain in Nepal — the historic injustice may carry limited weight even where right to family life under Article 8 is clearly established.
The judgment also reinforces the distinction between Article 8 and proportionality. Establishing dependency may bring a case within Article 8(1), but it does not answer the separate question of whether the historic injustice caused the present separation of the family.
The practical effect of the decision is likely to narrow the range of successful Gurkha historic injustice appeals involving more remote family members.