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issued by the Registrar of the Court   ECHR 291 (2016)   15.09.2016   Legislation on Gurkha soldiers’ pensions was not discriminatory   In today’s Chamber judgment1 in the case of British Gurkha Welfare Society and Others v. the United   Kingdom (application no. 44818/11) the European Court of Human Rights held, unanimously, that   there had been:   no violation of Article 14 (prohibition of discrimination) read together with Article 1 of Protocol   No. 1 (protection of property) to the European Convention on Human Rights.   The case concerned Gurkha soldiers’ pensions. Historically, the Gurkhas had been governed by a   different pension scheme from other soldiers in the British Army, with different terms and   conditions. However, following changes to their situation, including the relocation of their home   base to the UK on 1 July 1997, the UK decided to bring their pensions into line with those of other   soldiers in the British Army. In 2007 they offered to transfer the pensions of Gurkha soldiers who   retired on or after 1 July 1997 from the Gurkha pension scheme to the regular Armed Forces Pension   Scheme. The terms of transfer allowed only the transfer of pension rights accrued after 1 July 1997   on a year-for-year basis.   The applicants, two retired Gurkha soldiers and an NGO acting on behalf of Gurkha veterans,   complained that their pension entitlements had been less favourable than those of non-Gurkha   soldiers in the British Army, and those of younger Gurkha soldiers who had more years of service   after 1 July 1997.   The Court was satisfied that Gurkha soldiers had been treated differently from other soldiers in the   British Army as concerned their entitlement to a pension and that the difference in treatment could   be regarded as less favourable.   Furthermore, in view of the changes to the Gurkhas’ situation, the Court accepted that by 2007 – the   date of the offer to transfer – Gurkha soldiers had been in a similar situation to other soldiers in the   British Army.   However, the Court considered that any difference in treatment on grounds of nationality had been   objectively and reasonably justified. In particular, the cut-off point, 1 July 1997, for different   treatment of accrued pension had not been arbitrary as it represented the transfer of the Gurkhas’   home base to the UK and therefore the point in time from which the Gurkhas had started forming   ties with the country.   Likewise, the Court considered that any difference in treatment based on age had also been   objectively and reasonably justified.   Principal facts   The applicants in this case are: the British Gurkha Welfare Society, a non-governmental   unincorporated association which acts on behalf of 399 Gurkha veterans; and two retired Gurkha   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   soldiers, namely Tikendra Dewan, a joint Nepalese and British national born in 1953, and Subarna   Adhikari, a Nepalese national born in 1960.   Nepalese Gurkha soldiers have served the Crown since 1815, initially as soldiers in the (British)   Indian Army and then following Indian Independence in 1947 when four of its regiments became an   integral part of the British Army. Only Nepali nationals are eligible for service in what is today known   as the Brigade of Gurkhas.   Gurkha soldiers are required to retire after 15 years’ service. The Gurkha Pension Scheme (“GPS”)   was established in 1949 and applied the former Indian Army Pensions Code to Gurkhas serving in the   Brigade. Pension entitlements under the GPS were index-linked to the cost of living in Nepal as it   was presumed that the Gurkhas would retire there. Pensions were immediately payable upon   retirement.   The situation of Gurkhas has significantly changed over time. Originally based in the Far East, the   Brigade’s home base moved to the United Kingdom on 1 July 1997. This led to a number of   developments, for example, in 2009, the Immigration Rules were amended to permit all Gurkha   soldiers with at least four years’ service to apply for settlement in the United Kingdom.   The British authorities thus accepted in 2004 that the situation of Gurkhas had changed and that   differences in the majority of their terms and conditions of service (including their pension   entitlement) could no longer be justified on legal and moral grounds. As a consequence, the 2007   Gurkha Offer to Transfer (“GOTT”) was formulated in order to bring Gurkhas’ pensions into line with   those of other soldiers in the British Army who are entitled to pensions under the Armed Forces   Pensions Scheme (“AFPS”). Soldiers in the British Army are entitled to serve for 22 years and, unlike   the Gurkhas, are eligible for deferred pensions; the AFPS is not index-linked with the cost of living in   the soldier’s country of origin.   The GOTT enabled Gurkha soldiers who retire on or after 1 July 1997 to transfer from the GPS to the   AFPS depending on when they first enlisted in the British Army. The terms of transfer allowed only   the transfer of pension rights accrued after 1 July 1997 on a year-for-year basis.   In March 2008 the applicants brought proceedings before the British courts and were granted   permission to pursue a judicial review application in the High Court. They notably challenged the   legality of: the decision that Gurkhas who retired prior to 1 July 1997 were not entitled to transfer   their pension rights under the GPS into the AFPS; and the decision that, for those Gurkhas who   retired after 1 July 1997, service before that date did not rank on a year-for-year basis. They alleged   in particular that they were discriminated against in their entitlement to an army pension on the   basis of their age and/or nationality. In particular, they argued that they were treated differently   both from younger Gurkha soldiers who had (more) years of service after 1 July 1997 and from   regular British Army soldiers. Their application was dismissed by the High Court in January 2010. As   concerned the age discrimination challenge the High Court found that the difference in treatment   did not occur due to the difference in age but due to the dates at which service had been rendered.   As concerned the discrimination-on-grounds-of-nationality challenge the High Court considered that   the difference in pension agreements reflected the different historical position of the Gurkhas and   that, in any case, the choice of 1 July 1997 as the cut-off point for different treatment of accrued   pension was a rational and reasonable one. The applicants’ appeal was subsequently also dismissed   and, ultimately, in December 2010 the Supreme Court refused to grant the applicants permission to   appeal.   Complaints, procedure and composition of the Court   Relying on Article 14 (prohibition of discrimination) taken in conjunction with Article 1 of Protocol   No. 1 (protection of property) to the European Convention, the applicants maintained that their   pension entitlements had been less favourable than those of non-Gurkha soldiers in the British   Army, as their service prior to 1 July 1997 had been valued at as little as 23 per cent of the service of   other soldiers serving at the same time. They alleged that that had amounted to a difference in   treatment based on nationality, race and age.   The application was lodged with the European Court of Human Rights on 10 June 2011.   Judgment was given by a Chamber of seven judges, composed as follows:   Mirjana Lazarova Trajkovska (“the Former Yugoslav Republic of Macedonia”), President,   Ledi Bianku (Albania),   Linos-Alexandre Sicilianos (Greece),   Paul Mahoney (the United Kingdom),   Aleš Pejchal (the Czech Republic),   Robert Spano (Iceland),   Pauliine Koskelo (Finland),   and also Abel Campos, Section Registrar.   Decision of the Court   The Court reiterated that there was no guarantee, as such, under the European Convention to a   pension of a particular amount. If, however, a Contracting State did decide to create a pension   scheme, it had to do so in a manner that did not involve discrimination within the meaning of   Article 14 of the Convention. In order for an issue to arise under Article 14 there had to be a   difference in the treatment of persons in analogous, or relevantly similar, situations. Such a   difference in treatment was discriminatory if it had no objective and reasonable justification.   Complaint concerning race discrimination   The applicants, by their own admission, had not pursued their claim on grounds of race before the   domestic courts. That part of their complaint therefore had to be rejected as inadmissible for failure   to exhaust domestic remedies.   Complaint concerning discrimination on grounds of nationality   First, the Court found that Gurkha soldiers had undoubtedly been treated differently from other   soldiers in the British Army as concerned their entitlement to a pension since, prior to 1997, they   had been governed by a different pension scheme from other soldiers in the British Army, with   different terms and conditions. In addition, for those eligible for transfer to the AFPS, only accrued   rights to a pension for years of service after 1 July 1997 had been transferred on a year-for-year   basis, while accrued rights in respect of years of service prior to that date had been transferred at   actuarial value (approximately 23 to 36 percent of the value of a year’s service of a non-Gurkha   soldier of equivalent rank).   Not all Gurkha soldiers would have been financially “better off” if they had been treated as though   they had always been in the AFPS, since pension payments under the GPS were payable upon   retirement after 15 years’ service. Nevertheless, the Court was satisfied that Gurkha soldiers could   be regarded as having been treated less favourably in respect of their pension entitlement than   other soldiers in the British Army. The authorities had indeed acknowledged that the pension benefit   profile of a Gurkha soldier was less advantageous, paying sums too small at a time when they did not   need them and an inadequate pension once they reached retirement age. Notably, during the 2004   review conducted by the Secretary of State for the Defence it was conceded that Gurkhas had   “clearly” been wronged under the GPS in the changed context of a likely second career in the UK;   and, an actuarial report submitted by the Government expressly accepted that Gurkha soldiers of   officer rank or above (roughly four percent of the total) would have been in a significantly better   financial position had they been able to transfer all years of service to the AFPS on a year-for-year   basis.   Furthermore, in view of the significant developments in the Gurkhas’ situation, their home base   having been moved to the UK and all Gurkhas with at least four years’ service who retired after 1   July 1997 having been permitted to apply for settlement in the country, the Court accepted that by   – the date of the GOTT – Gurkha soldiers had been in a “relevantly similar situation” to other   soldiers in the British Army.   However, the Court considered that any difference in treatment had been objectively and   reasonably justified. The selection of 1 July 1997 as a cut-off point had not been arbitrary. That date   represented the transfer of the Gurkhas’ home base to the UK and therefore the point in time from   which the Gurkhas had started forming ties with the country.   Those who had retired before that date had no ties to the UK and, at the date of the GOTT (2007),   had no right to settle there. The Court therefore found no cause to doubt the conclusion of the 2004   review that the GPS continued to be the best scheme to meet the needs of these Gurkhas, since the   payments under that scheme, which were available immediately upon retirement, were more than   adequate to provide for their retirement in Nepal.   As concerned those who retired after 1 July 1997, any pension entitlement accrued prior to that   date had been accrued at a time when they had no ties to the UK and had no expectation of settling   there following their discharge from the Army. In any case, the purpose of an armed forces pension   scheme (either under the AFPS or the GPS) was not to enable the soldier to live without other   sources of incoming following retirement from the Army. Given that most Gurkhas retired after   years, and the majority of other soldiers in the British Army retired before they had served for 22   years, it was fully expected that they would have other sources of income once they had left the   armed forces.   Finally, the Court found no support for the applicants’ argument that pensions should not be index-   linked to their expected country of retirement. Firstly, it was difficult to draw any genuine   comparison between the position of pensioners living in different countries on account of the range   of economic and social variables applying from country to country; and, secondly, pensions were a   form of deferred salary, and many employers regularly adjusted salaries to reflect the cost of living   in the city or country of employment.   Consequently, there had been no violation of Article 14 taken in conjunction with Article 1 of   Protocol No. 1.   Complaint concerning age discrimination   Any difference in treatment of Gurkhas on account of age stemmed from the decision to value only   service after 1 July 1997 on a year-for-year basis. Any such difference in treatment therefore had to   be regarded as objectively and reasonably justified for the same reasons given in relation to the   applicants’ complaint concerning discrimination on grounds of nationality. It followed that there had   been no violation of Article 14 read together with Article 1 of Protocol No. 1 as concerned the age   discrimination complaint either.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. To receive   the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter   @ECHRpress.   Press contacts   [email protected] | tel.: +33 3 90 21 42 08   Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)   Denis Lambert (tel: + 33 3 90 21 41 09)   Inci Ertekin (tel: + 33 3 90 21 55 30)   George Stafford (tel: + 33 3 90 21 41 71)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member   States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   5