Memorandum submitted by Tim Heaver
This Memorandum is written to provide background
information on aspects of the current position of Gurkha settlement
to the Home Affairs Select Committee.
1. VISA APPLICATION
PROCEDURE
The Visa Section of the British Embassy in Kathmandu
moved to the High Commission in New Delhi, leaving a Visa Application
Centre in Kathmandu, in line with the "hub and spoke"
policy.
Gurkhas and their dependant family members make
their settlement applications on form VAF4A (freely available
either on-line or from the Visa Application Centre). The visa
fee is paid at Standard Chartered Bank the day before the visa
application is made and the receipt is submitted to the Visa Application
Centre together with the completed application form and any supporting
documents. These are then checked and sent to the High Commission
in New Delhi where a specially formed "Ex-Gurkha Team"
considers each application.
There is no need for any applicant to be legally
represented at this stage. The VAF4 whilst long is relatively
straightforward. Any application from an ex-Gurkha who has served
for less than four years or who has a serious criminal record
may benefit from legal advice and representation, as may applications
from widows and adult dependant children. All other applications
from ex-Gurkhas, wives and minor children are virtually bound
to succeed. Whilst many may lack the English language skills to
complete a lengthy form in English, access to lawyers is not the
only remedy to this and many will have family members, friends
or colleagues to assist them.
After consideration of the application the Ex-Gurkha
Team pass the decision back to the Visa Application Centre in
Kathmandu for communication to the applicant. Visas or refusal
notices are then made available.
So far, the writer is not aware of any ex-Gurkha
soldier or spouse whose application has been refused. Widows and
adult dependant children have been refused but it appears that
the Ex-Gurkha Team are working methodically through the backlog
of cases, starting with ex-Gurkhas and their spouses.
2. REPRESENTATION
IN NEPAL
The writer's firm, N. C. Brothers & Co,
solicitors, maintains no presence or representation in Nepal and
currently have no intentions to do so.
The Office of the Immigration Services Commissioner
("OISC") has no authority in Nepal and conducts no regulatory
or other activities there. Consequently, it is difficult to say
that any of the independent UK-based OISC-regulated representatives
operating in Nepal at present meet any appropriate standards of
conduct. Whilst the provision of unregulated paid immigration
advice and services in the UK is a criminal offence, it is not
in Nepal.
Whilst the Solicitors Regulation Authority has
jurisdiction over solicitors of the Supreme Court of England and
Wales wherever in the world such solicitors practice, there are
obvious day-to-day problems in exercising such jurisdiction outside
the U.K.
Whilst Nepal has a flourishing if immature legal
system, local Nepalese lawyers have no substantial code of conduct
or ethics. Nepalese law is completely different to UK law and
Nepal still maintains much of a personality based system rather
than a rule based system of law. There is no requirement to observe
or treat as paramount the best interests of the client. The value
of migration to the individual Nepali is such that they are seen
as a good source of revenue by local lawyers who usually lack
expertise in UK immigration law and practice and who usually take
the opportunity to severely overcharge the individual.
There are several individuals, groups and organisations
offering immigration services, or introductions to those offering
such services, in Nepal. Whilst most are well-branded, some are
not, and the individual may not know who they are actually dealing
with. Lack of supervision and regulation must lead to questions
as to competence of the individual advisers.
The opening of a Brigade of Gurkhas Resettlement
Office ("GRO") in Kathmandu is to be applauded. Such
an Office is able to provide for the basic settlement application
which is all the ex-Gurkha really needs. Applications for widows
and adult dependants require not only a greater level of expertise
but also a will to "push the boundaries" of immigration
policy and this may well be beyond the expertise and will of the
GRO at present. The "Life in the U.K. Leaflet" handed
out by the GRO lists the categories of applications that can be
made by ex-Gurkhas and their families, but does not include adult
dependants in that list. This is potentially a problem for the
future, as family (and perhaps widow) applicants will not use
the GRO, and will not be able to pursue entry clearance appeals
through the GRO.
Unfortunately, many ex-Gurkhas view the GRO
with suspicion as part of the British Government. It is also possible
that perceived conflicts of interest may arise.
3. LEGAL AID
Messrs. Howe & Co, who maintain a presence
in Nepal, hold a legal aid franchise for immigration law and exercise
devolved powers to grant legal aid to Gurkha applicants in Nepal.
This legal aid may be of up to £500 in value per applicant,
but is usually around £250 per case. Grant of legal aid in
such cases is a matter for the firm exercising devolved powers
and the Legal Services Commission. The Legal Services Commission
gave prior express authority to Howe & Co. to assist Gurkhas
in Nepal in this way. It is understood that Howe & Co have
now closed its offices in Pokhara and Kathmandu, and may withdraw
from Nepal altogether.
4. GURKHA ORGANISATIONS
There are several Gurkha ex-servicemen's organisations
operating in Nepal and in the U.K. These include the Gurkha Army
Ex-Servicemen's Organisation ("GAESO"), United British
Gurkhas Ex-Servicemen's Association ("UBGEA"), the Nepal
Ex-Servicemen's Association ("NESA") and the British
Gurkha Welfare Association ("BGWS"). The "official"
Brigade of Gurkhas organisation in Nepal is the Regimental Association
Nepal ("RAN").
5. SETTLEMENT
AND FUNDING
Until recently, such settlement as took place
was funded either by the settlers themselves or their families.
The settlers relied largely on their own efforts and resources,
or received assistance from family, friends and the community.
Demands on charities were rare.
With larger (although still modest) numbers
of ex-Gurkhas settling in the UK, demands for charitable resources
are increasing. The distortion of the process caused by GAESO's
actions in Nepal are leading to greater numbers of elderly Gurkhas
seeking to settle here in order to bring their families here.
In many cases, pressure from adult children is intense. Many older
ex-Gurkhas have no family or support network to move into in the
UK, and the reluctance of the caste/jat groups to get involved
removes one previously important source of help. The distortion
of choice has probably led to many ex-Gurkhas choosing to enter
the U.K. who would otherwise have not sought to do so and has
undoubtedly led to greater demands on the charitable sector than
were anticipated and has caused a strain on resources.
Ex-Gurkhas arriving in the UK with inadequate
English language skills prevent them from obtaining work here.
Whilst security training is now commercially available in Nepal,
it is of little use without the linguistic skills required to
make an ex-gurkha employable.
6. CURRENT STATUS
OF GURKHA
AND DEPENDANT
APPLICATIONS WITH
HOME OFFICE
As at 8 March 2010, all but three ex-Gurkha
applicants present in the U.K. and who applied before 2009 have
been granted settlement. The Home Office is in some disarray owing
to the failure to identify those cases where for legal reasons
no appeal against the initial refusal was possible. Here, the
problems seem to be in identifying cases as Gurkhas.
Widows. As at 8 March 2010, there are Gurkha
widow cases who applied for settlement prior to 2009 outstanding
with the Home Office.
Adult Dependants. There are perhaps dozens of
such cases outstanding at the Home Office.
A change to section 4 of the British Nationality
Act 1981 that came into effect in February 2010 means that all
Gurkha children born in Hong Kong prior to January 1983 will be
entitled to British citizenship by registration. It would assist
if the Home office could allow all such children who are present
in the UK and awaiting settlement decisions to remain in the UK
whilst their bona fide registration application is considered.
It would further assist if those adult dependants
in the UK and waiting for settlement decisions or appeals and
who hold permanent residence in Hong Kong could be permitted to
return to Hong Kong to renew their permanent residence there without
this ending their applications or appeals. This could be done
only with consent of the Home Office.
Adult dependant applications are apparently
being dealt with inconsistently within and between UKBA caseworker
teams, and by Diplomatic Posts around the world other than those
in Manila and New Delhi, who see comparatively large numbers of
such applications. UKBA appear to waiting for hearings on 2 June
2010 to determine their approach to such cases and are also seeking
legal advice as to whether and if so upon what grounds adult dependants
and widows should be permitted rights to appeal refusals made
to the Immigration and asylum Chamber of the First-Tier Tribunal.
A small number of overseas cases appear to have
been "lost" in the closure of Visa Posts under the "Hub
and Spoke" policy eg Singapore.
SUMMARY
1. The basic settlement visa application
can be completed by the applicant with assistance from family/friends.
It does not need legal representation. The Gurkha Resettlement
Office is perfectly adequate in the majority of such cases.
2. There are very few regulated or properly
qualified UK immigration advisers in Nepal.
3. The application process is distorted
by the actions of some groups, particularly GAESO, who appear
to be extorting up to £500 from each applicant for no apparent
purpose.
4. The Home Office has had problems identifying
all ex-Gurkha cases and has some policy issues to address. This
is delaying completion of application in the UK.
5. Changes in nationality law have assisted
many Gurkha children born in Hong Kong, who should be permitted
to remain in the UK whilst they acquire British citizenship. Those
in the UK should be permitted to renew Hong Kong permanent residence
without jeopardising their settlement application or appeals.
March 2010
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