Immigration (Discharged Gurkhas) Bill [HL]

My Lords, I have the difficult job of responding to the Second Reading debate of the Bill put forward by the noble Lord, Lord Lee, on a subject which, it is fair to reflect, has generated understandable emotion and passion and a central plea to the Government to review their current position. I have been tremendously impressed by all who have contributed to the debate. They know much more about the Gurkhas than I do. Most of them have an association of some longevity with the military prowess of the Gurkhas and all of them have spoken with compassion, understanding and some considerable knowledge of the history of the Gurkha regiments and their loyal commitment to the armed service of our nation. I welcome the opportunity to speak on the Bill. I recognise the sensitivity of the issues that it raises and I am grateful for the opportunity to discuss them. I shall make it plain at the outset, as has the noble Baroness, Lady Hanham, that this is not a Bill which the Government can support. That is not to say that I and the Government do not value the tremendous commitment, loyalty, bravery and courage of the Gurkhas who have served our nation over some 200 years. Immigration is one of the most important issues raised by the British public. The public want to see an immigration system which is effective and above all fair: attracting the right legal migrants to help our economy; taking tough action against those who come or stay illegally; and setting out a clear contract of rights and responsibilities for all. That is how people wish us to conduct our immigration system. As stated in the Home Office strategy, we want to ensure that migration benefits the United Kingdom. In doing so, we will take account of the economic benefits and the impact on services and communities. I am sure that the House would expect us to do no less. We, as a Government, will also ensure that we continue to act with compassion to control migration and settlement with sensitivity for particular individuals or groups of individuals where it is right to do so. That reflection frames our approach to this subject. The Government’s position on Gurkhas has generated considerable debate and media interest—there is no doubt of that—and that debate has continued for some time. The public wish to know that the Gurkhas, after having served in the British Army for many years, are being treated fairly and honourably by our country. During the Indian rebellion of 1857, Gurkhas fought on the British side, and became part of the British Indian Army on its formation. A number of noble Lords have referred to that important time. Gurkhas saw active service in many theatres of conflict between 1857 and 1914. They fought on the British side in both the First and the Second World Wars. There is no doubt therefore that the Gurkhas have contributed significantly to the security of the United Kingdom and we should acknowledge and reward, and continue to do so, their loyal service in the British Army in an appropriate and fair manner. From the noble Lord, Lord Bilimoria, in particular, we have had a very moving address to the House on the history of loyalty and commitment from the Gurkha regiments to the British Army and the British people. I pay tribute to the noble Lord for the way in which he set out his arguments and brought to your Lordships’ House his intimate knowledge, understanding and involvement from a family perspective of the Gurkha regiments. I return to the issue of fairness. I believe that the current arrangements are fair and that the Government have been reasonable in their treatment of former Gurkhas. They have kept faith with the terms on which they were engaged prior to July 1997. A number of noble Lords have congratulated the Government on their moves since that date. The noble Lord’s Bill seeks to amend the immigration rule which relates to former Gurkhas who apply to settle here on the basis of their past service of at least four years in the British Army. Specifically, the noble Lord seeks to remove the requirement for a former Gurkha to have been discharged from service on or after 1 July 1997 in order for him to be eligible for settlement in the United Kingdom. The noble Lord also seeks to remove the requirement for the discharge to have occurred within the two years of the date of settlement application by a Gurkha. The Government entirely understand the noble Lord’s wish to do the best for the Gurkhas, but it is essential that the House understands that the 1 July 1997 cut-off is not an arbitrary date in the settlement rules for former Gurkhas. I also ask the House to understand the need to put the Gurkha issue into the context of our wider immigration policy, as I have argued. From 1947 to 30 June 1997, Gurkhas serving in the Army were based and served almost exclusively in the Far East. They were invariably recruited in Nepal, served in the Far East and retired in Nepal. Their headquarters was in Malaya and then in Hong Kong, which was then a British dependent territory. They were discharged in Nepal after completing that service, with the expectation that they would resume their lives there. Those who completed their full engagement received an immediate entitlement to a pension there, usually when they were around 32 to 35 years-old. That gave them a good standard of life compared with other Nepalese citizens. It is important to add that Gurkhas have always served in distinct units, with their own command structure and use of their native language. That was so that they could retain their Nepalese links and return to Nepal after discharge to utilise the skills they had acquired in the Army. That has never been so for other foreign and Commonwealth soldiers, who in addition were recruited and discharged in the United Kingdom and always served alongside British soldiers. From 1971, Gurkhas began to spend tours of duty in the United Kingdom of up to two years. Then, on 1 July 1997, the Brigade of Gurkhas became UK-based, with headquarters here, following the United Kingdom’s withdrawal from Hong Kong. This is extremely significant as it is only from this time that membership of the Brigade of Gurkhas would be likely to lead to an extended period of residence in the United Kingdom or to the development of the type of close physical or family ties to the UK which would normally justify a grant of settlement to applicants under the relevant immigration rules. On the immigration rules and immigration policy in general, the grant of settlement in the United Kingdom is normally linked to an extended period of residence here or to the presence of a close family tie. In October 2004, following a very detailed Home Office and Ministry of Defence policy review, the immigration rules were amended. That change meant that, from 25 October that year, Gurkhas who had completed at least four years’ service in the British Army and who had been discharged in Nepal on or after 1 July 1997 have been able to apply for settlement here within two years of the date of discharge. Since April 2007, Gurkhas have had the option of discharge in Nepal or in the United Kingdom; their dependants are also able to apply for settlement in line with them. Those arrangements recognise that the pattern of service in the British Army for Gurkhas has changed over the past decade. In addition, Gurkhas who retired before 1 July 1997 can apply for settlement under discretionary arrangements where there are strong reasons why settlement here is appropriate, such as a significant period of residence in this country or the presence of a close family tie. Following the rule change, there was, as noble Lords have acknowledged today, a two-year transition period, which extended the policy to those Gurkhas who had arrived in the UK after discharge and had remained without permission. Those arrangements have enabled many former Gurkhas to regularise their position in the UK and discretion may continue to be exercised in granting settlement to former Gurkhas on a case-by-case basis. I should add, to further inform the House, that a consolidated appeal is due to be heard before the Asylum and Immigration Tribunal on 21 July relating to the issues underlying the Bill. A number of Gurkhas have appealed against refusals of entry clearance or indefinite leave to enter or remain and settle in the UK. A number of judicial reviews are outstanding. We argue that those cases will provide an opportunity for the fairness of the policy to be tested and it seems to us eminently reasonable and sensible to await the outcomes of those landmark cases. Noble Lords made a number of points in the debate and it is right that I should try to respond to some of them. The noble Lord, Lord Lee, questioned the issue of the insufficiency of ties to the United Kingdom and he argued that perhaps only 10,000 of the 25,000 Gurkhas might wish to settle here. The Government fully recognise the service contributed by former members of the Gurkha regiments, but the terms of their service and their pension entitlement have, we argue, been fully honoured by us. We think that the 1997 cut-off is reasonable and fair—noble Lords have credited us for that improvement on former government policy. We believe that it provides consistency with wider immigration policy where, as I have argued throughout, the settlement is normally linked to a period of extended residence in the UK under the Immigration Rules or to the presence of family ties. Any decision to do away with the 1997 cut-off would have to take into account the impact across government departments of the arrival of potentially as many as 40,000 former Gurkhas and their dependants, not least the extensive implications for our already stretched housing sector. The noble Lord, Lord Sheikh, referred to a particular case relating to Ministry of Defence pensions. He acknowledged that, earlier this week in the High Court, Mr Justice Ouseley ruled that the Government’s application of the July 1997 cut-off date to pension enhancements for service in the Gurkhas after July 1997, after which there had been an expectation of retiring in the United Kingdom, was reasonable, rational and lawful. That is the approach that the Government want to proceed with. We think that Gurkhas, past and present, have benefited from decent terms and conditions, something that is perhaps evidenced by the intense competition that traditionally accompanies annual recruitment for the brigade. It is not uncommon to have 20,000 applicants competing for approximately 200 places. We think that we have the balance about right. I also want to respond to the important point made by the noble Viscount, Lord Slim, about putting at risk the military covenant, an issue also raised by the noble Lord, Lord Bilimoria. We regard the maintenance of the covenant between the Government, the Armed Forces and the British public as essential not only to those who serve but to the future health and integrity of our Armed Forces. No one should question that important commitment made by the British Government. I cannot accept that the Government’s position on Gurkha pensions or settlement rights suggests in any way that the covenant is being compromised or jeopardised, as may have been suggested this morning. As has been acknowledged during the debate, there have been substantial improvements to the pay, conditions and pension entitlements of serving Gurkhas, bringing them into line with their Commonwealth and British counterparts in the Armed Forces generally. We have rightly been congratulated on that. As I explained, the July 1997 cut-off applied to those seeking settlement within the Immigration Rules. We believe that it is fair and rational. As we have made plain, and as the noble Baroness, Lady Hanham, recognised, there is scope for those Gurkhas who retired prior to 1 July 1997 to apply for settlement in the United Kingdom under the discretionary arrangements. The noble Lord, Lord Sheikh, gave us some details on numbers for that. However, it must be an evidence-based application. I am grateful to everyone who has contributed to the debate. As I explained at the outset, the Government are not minded to support the Bill. We owe the Gurkhas a debt of gratitude. We believe that they have been treated fairly in the application of the 1 July 1997 cut-off. No doubt the issue will continue to be raised and to exercise legislators. It is not an easy one to resolve—the noble Baroness, Lady Hanham, reflected on that, as did the noble Lord, Lord Sheikh. It is not simple or straightforward. We must retain the integrity and consistency of our application of immigration policy. I have a great deal of respect for the noble Lord, Lord Lee of Trafford, who argued his case well, and for all noble Lords who have contributed to the debate with understandable passion and commitment and with a sense of reverence for the Gurkhas. The Government do not demur from any of that. I am grateful to all noble Lords who have contributed and for the opportunity to set out the Government’s case but, all those things being said, I have to oppose the Bill.