The Upper Tribunal has set out how tribunals should approach "historic injustice" in Article 8 appeals by relatives of Gurkha veterans refused entry clearance, in a decision issued on 8 April 2026.
Key facts
- Who: Family members of former Gurkhas who appeal an entry clearance refusal on Article 8 (family life) grounds and rely on the "historic injustice"
- From: 8 April 2026 (judgment date)
- Source: Maya Gurung & Ors v Entry Clearance Officer [2026] UKUT 191 (IAC)
The Upper Tribunal (Immigration and Asylum Chamber), sitting at Field House with the President, Mr Justice Lavender, and Upper Tribunal Judge Bulpitt, heard the appeal on 13 January 2026. The decision is [2026] UKUT 191 (IAC), issued on 8 April 2026.
Background
The appellants were a daughter-in-law and two grandchildren of a Gurkha veteran who served between 1948 and 1963 and died in 1984. His widow moved to the United Kingdom in 2012 and has dementia. In 2023 the First-tier Tribunal allowed appeals by the veteran's adult son and daughter, who then moved to the UK and care for her in Hampshire.
The appellants stayed in Nepal and applied for entry clearance on 4 April 2024. The Entry Clearance Officer refused the applications. On appeal, First-tier Tribunal Judge Neave found that they did not meet the Immigration Rules but did share a family life with the widow and the son in the UK, engaging Article 8(1) of the European Convention on Human Rights. The judge nonetheless held that refusal was proportionate, even taking the historic injustice into account. Those findings on the Rules and on family life were not challenged. It was not suggested the appeal could succeed without the historic injustice.
The question
The appellants challenged the proportionality finding. The issue was what effect the historic injustice suffered by Gurkha veterans has on that assessment.
The decision and reasoning
For cases where it is argued that an historic injustice makes interference with an appellant's Article 8 family life rights disproportionate, the Tribunal set out a three-step approach:
1. Decide whether there is a family life engaging Article 8(1), applying the "additional elements of dependency" test confirmed in IA. 2. If so, ask whether there is a causal connection between the historic injustice and the appellant's circumstances: whether, "but for" the injustice, the appellant would already have settled in the UK. 3. Decide the public interest question through a proportionality assessment, balancing the public interest against the family's interest in developing their family life.
Where there is a causal connection and the Secretary of State relies solely on the public interest in maintaining effective immigration control, the balance will normally fall in the appellant's favour.
In reaching this, the Tribunal reviewed earlier authority. In Gurung [2013] EWCA Civ 8, the Court of Appeal held that the historic injustice is an important factor but not necessarily determinative. In Ghising [2013] UKUT 567 (IAC), the Upper Tribunal said that where the "but for" link is established, this will ordinarily decide proportionality in the appellant's favour, though a bad immigration record or criminal history may change that.
What this means for families of Gurkha veterans
- In appeals where historic injustice is argued to make a refusal disproportionate, the Tribunal should work through family life, then causation, then proportionality.
- The "but for" link is a separate step from family life: it asks whether the family would already have settled in the UK but for the historic injustice.
- Where that link is shown and the Secretary of State relies only on maintaining effective immigration control, the balance will normally favour the appellant.
- The historic injustice is not necessarily decisive. Earlier cases give a bad immigration record or criminal history as examples of factors that may outweigh it.
Sources
- Maya Gurung & Ors v Entry Clearance Officer [2026] UKUT 191 (IAC), Upper Tribunal (Immigration and Asylum Chamber), 8 April 2026