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  
2
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  
3
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  
2007 – 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  
15 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.  
4
Press contacts  
echrpress@echr.coe.int | 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