England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE MUNBY)

		Royal Courts of Justice Strand London WC2A 2LL Monday 27 May 2002

1. LORD PHILLIPS, MR: I will ask Lord Justice Robert Walker to give the first judgment.
2. LORD JUSTICE ROBERT WALKER: This is an appeal from an order of Munby J made in the Administrative Court on 21 December 2001. The judge dismissed an application by Mrs Shamsun Nahar, the appellant in this court, for judicial review of a decision to refuse permission to appeal made on 1 March 2001 by a Social Security Commissioner, Mr Edward Jacobs. The case was perceived as raising issues as to how the principles of estoppel, or comparable principles of legitimate expectation of consistent treatment, apply in relation to decision-making procedures in different parts of central government. The judge described the case as raising a point of considerable importance and he granted permission to appeal. But, on examination, the facts do not bear that out. The undisputed background facts are set out in the judge's judgment. For present purposes they can be summarised quite briefly.
3. The appellant was born in 1930 in what is now Bangladesh and she is a citizen of Bangladesh. She is illiterate. She claims to have been married in Bangladesh in on 9 March 1952 to Mr Abdul Kadir. Mr Kadir died in Bangladesh on 6 May 1995 and the appellant now claims to be his lawful widow.
4. The appellant was unable to rely on any record of her marriage being entered on an official register. Her case has been that her marriage was celebrated in accordance with Muslim law and practice, and that it was evidenced by a formal document which the judge called the marriage deed. This document was written in Bengali and dated with the Muslim equivalent of 9 March 1952. It carried various authenticating signatures and stamps. However, Mr Graeme Marrs, a document examination officer, employed by what was then the Department of Social Security Pensions, and Overseas Benefits Directorate, has, in a witness statement made on 13 November 1997, cast serious doubt on the authenticity of the marriage deed.
5. Mr Kadir came to this country in 1957. In 1961 he married a woman whom the judge refer to as "BB". On that occasion he described himself as a bachelor. On the appellant's case this marriage was bigamous and void. In 1962 Mr Kadir applied for British citizenship, describing the appellant as his wife on the application form. He was registered as a citizen. The applicant's case is that between between 1965 and 1967 Mr Kadir fathered three children, two born to BB and one (whom the judge referred to as M) to the appellant. Mr Kadir and BB were divorced in 1976. The appellant was, throughout Mr Kadir's lifetime, resident in Bangladesh where, for some years, all three children lived with her. Mr Kadir lived in Bangladesh for the last three years of his life.
6. After Mr Kadir's death and whilst still living in Bangladesh, the appellant took steps which brought her into contact with two arms of this country's Government. She claimed, as Mr Kadir's widow and thus a British citizen by marriage, to be entitled to enter the United Kingdom with her son. She also claimed to be entitled to a widow's pension. Her two applications produced inconsistent rulings as to her status as Mr Kadir's widow. That inconsistency is the central issue in the appeal. The rather protracted course of the applications must be described in some detail.
7. The two applications were first made at about the same time, at the beginning of 1993. The application for entitlement to enter the United Kingdom was considered in Bangladesh by the Entry Clearance Officer, Dhaka (the "ECO"), who interviewed the appellant and her son on 25 November 1993. They both agreed to DNA testing and the son agreed to an age estimate test. Later there was another DNA test as between M and one of his putative half-brothers. The appellant gave reasons for the absence of a marriage certificate, which the ECO regarded as inconsistent with those she had previously given by a letter written on her behalf. After the results of the tests were received, the ECO reconsidered the matter and refused the applications under section 2 of the Immigration Act 1971. That decision was reviewed but was upheld on 17 April 1994.
8. The appellant and her son appealed from this decision but the appeal was not heard until mid-1997. Meanwhile the other application to the Pensions and Overseas Benefits Directorate had made some slow progress. Both applications were being conducted by English solicitors instructed on the appellant's behalf, apparently by Mr Karim (or Mark) Kadir, BB's younger son, who was again resident in this country. Her formal claim for a widow's pension was submitted in August 1995.
9. The appellant was interviewed at the British High Commission at Dhaka on 17 January 1996. Her claim was refused by an adjudication officer on 8 November 1996. The adjudication officer had a report from the Pensions Liaison Officer at Dhaka, which drew from the same file as the ECO had been using. So, at that stage, decisions were being taken on much the same material. The adjudication officer's decision was made under section 20 of the Social Security Administration Act 1982 and section 49 of the Social Security Contributions and Benefits Act 1992. The ground of the decision was that it had not been established, and could not be presumed, that there was a valid marriage between the appellant and Mr Kadir and that it had not been proved that she was his widow.
10. The appellant was not notified of the adjudication officer's decision until March 1997. She promptly appealed to the Social Security Appeal Tribunal. Before that appeal was heard, her immigration appeal was heard by an adjudicator, Mrs R M Mannion, on 25 June 1997. At that hearing there was produced for the first time what was said to be the original marriage deed. The appellant and her son were not of course present, but oral evidence was given by two witnesses, Karim and Mr Kadir's brother. The latter produced the marriage deed and gave evidence that it must have survived destruction in the civil unrest and violence of the "liberation war" and had been found after Mr Kadir's death. The Home Office presenting officer did not challenge the authenticity of the marriage deed or the veracity of these two witnesses. The adjudicator found on the balance of probabilities that the appellant was Mr Kadir's widow and she allowed the appeals.
11. The ECO obtained permission to appeal to the Immigration Appeal Tribunal. On 30 March 1998 the Tribunal allowed the appeal, but we do not know on what grounds. It ordered a new hearing by a different adjudicator. In the meantime, however, the pension appeal process had been continuing. The appellant's solicitors put forward the marriage deed as evidence in that appeal. In consequence an appeal hearing on 22 October 1997 was adjourned to enable the document to be examined, resulting in the witness statement dated 13 November 1997, which I have already mentioned. It concluded that it was highly unlikely that the marriage deed was issued in 1952. The document examiner based this conclusion mainly on the document's state of preservation, the paper used, the watermark of that paper, the unexpectedly low oxidisation of the inks and the use of red ballpoint ink (which was not commercially available in 1952). He also relied on spelling mistakes in English language stamps on the document.
12. The Newcastle Overseas Social Security Appeal Tribunal dismissed the pension appeal in a written statement of facts and reasons dated 27 February 1998. This shows that the appellant was represented by a solicitor and the Department by a presenting officer. The presenting officer relied on the results of DNA testing (which showed that M and Karim were probably not half-siblings) and on the document examiner's report. The appellant's solicitor relied on the evidence given to the immigration adjudicator and on the oral evidence of two witnesses whom she called at the pension appeal hearing. One was Karim, who gave evidence as to how he had been brought up by the appellant which, the solicitor submitted, would not have been allowed to happen in the appellant's village unless there had been a marriage. The other witness was Mr Nazruc Islam, who gave evidence that the appellant and Mr Kadir had lived together as man and wife in the same house as the witness in 1978 and 1979.
13. The Tribunal concluded that the marriage deed was a forgery and that the DNA evidence was persuasive. It reached the same conclusion as the Social Security Adjudication Officer and dismissed the appeal. From that decision an appeal lay to a Social Security Commissioner, but only on a point of law and only with permission. An application for permission to appeal was belatedly made by a new firm of solicitors instructed on behalf of the appellant, but permission was refused by the Tribunal on 15 March 1999.
14. It is now necessary to go back in time to the fresh hearing before an immigration adjudicator which had been ordered by the Immigration Appeal Tribunal. This hearing took place before Mr M A Clements on 7 December 1998, more than nine months after the decision of the Social Security Appeal Tribunal. The appellant was represented by counsel, instructed by a firm with a different name but apparently the same principal as the firm which at some stage took over the pension appeal. The ECO was represented by a presenting officer.
15. At the hearing there was again oral evidence from Mr Kadir's brother and from Karim. The brother gave detailed evidence, consistent with the contents of the marriage deed, about a wedding in 1952 between Mr Kadir and the appellant. He claimed to have seen the witnesses sign the marriage deed. He also gave evidence of the marriage deed having been found by a relative and handed to him on a visit to Bangladesh in 1996. The adjudicator found the two witnesses to be credible. He concluded that the marriage had been proved and that M was Mr Kadir's son. He therefore allowed their appeals by a written determination which was sent to the parties on 1 February 1999.
16. The adjudicator's decision contained a full summary of the submissions made to him. Counsel for the appellants is recorded as having said, in response to the submission that the marriage deed had appeared fortuitously and was unreliable, that the marriage deed had never been questioned as a forgery. In that counsel was plainly incorrect. Just over a year before the second immigration adjudicator's hearing, the document examiner at the Pensions and Overseas Benefits Directorate had expressed a definite opinion that the document was not authentic. His opinion had been accepted by the Newcastle Overseas Social Security Appeal Tribunal.
17. At the time of that Tribunal's decision, the appellant had different legal advisers, but her solicitor at the second immigration hearing, Mr Manoj Choudhury, must then, or soon afterwards, have been considering her application for permission to appeal from that decision. This court was not given any satisfactory explanation of what happened. It is regrettable, to say the least, that the immigration adjudicator was misinformed about the serious doubt which had been cast on the marriage deed. The presenting officer evidently did not have any material on which to challenge this misinformation.
18. The ECO again applied to the Immigration Appeal Tribunal for permission to appeal, but this was refused. At that point the ECO and the Home Office decided, as the judge put it, to admit defeat. The ECO certified the appellant's entitlement to enter the United Kingdom. She arrived here on 25 October 1999 and is now settled in this country.
19. After the Newcastle Tribunal had refused permission to appeal, the appellant renewed the application to a Social Security Commissioner. The application took a long time to come on, at first because of a stay until the Immigration Appeal Tribunal had for the second time considered the matter, and then because the file was lost and had to be reconstructed. Eventually there was an oral hearing on 27 February 2001. On 1 March 2001 the Commissioner gave a written decision refusing permission to appeal. He concluded that the Tribunal was entitled to reach the conclusion that it reached, that it took account of the right considerations and that there was no denial of natural justice. He had prefaced these conclusions with the observation:

"There is obvious dissatisfaction when different bodies have come to opposite conclusions about the claimant's marital status."

20. On 18 May 2001 the appellant applied for judicial review of the Commissioner's decision on a variety of grounds. On 3 July 2001 Maurice Kay J gave her permission to apply on three grounds. The judge commented:

"Those three grounds, described by the claimant in her statement of grounds as abuse of process, legitimate expectation and unfairness, all go to the same essential contention, which is that the Secretary of State for Work and Pensions, as he now is, and the Social Security Appeal Tribunal were, or should be held, bound by the earlier findings of the two Adjudicators."

21. That way of putting it is not correct because only one of the immigration adjudicators' decision had ante-dated the Tribunal decision and it had been set aside on appeal. Both had been made before the matter came before the Social Security Commissioner and he referred to both in his decision. It does not appear that estoppel per rem judicatam, as such, was deployed before him, although reference was made to natural justice.
22. At the full judicial review hearing the judge gave permission for the grounds to be supplemented by including a particularised claim as a breach of Article 8 of the European Convention on Human Rights. However, he dismissed the application on every ground.
23. Before the judge, Mr Roger André, appearing for the appellant, put the doctrine of issue estoppel in the forefront of his case. He has done the same in this court. But reliance on that doctrine is misconceived because, at the time of the second hearing before an immigration adjudicator, the Social Security Appeal Tribunal had already made its decision and published its reasons. If there was to be any estoppel per rem judicatam, it would have operated not in favour of the appellant but against her.
24. Mr André suggested that the effect of the second adjudicator's decision was somehow to reinstate with retrospective effect the first adjudicator's decision. Quite apart from the fact that the second adjudicator was seriously misled about the marriage deed, that is, in my judgment, an impossible submission, whatever the grounds on which the first decision had been set aside. The second hearing was a hearing de novo, as both sides agreed at the time. Mr André also submitted that the presenting officer's failure to challenge the marriage deed at the first immigration hearing, itself created an estoppel which continued despite the setting aside of the decision. Again, I can see no basis for that submission.
25. There cannot, therefore, be any estoppel per rem judicatam operating in favour of the appellant. In the circumstances I do not think it would be appropriate for this court to express any view on the reasoning and conclusions in Munby J's judgment, beyond noting that it seems to be in line with the views expressed in Mr Justice K R Handley's 3rd (1996) edition of Spencer Bower, Turner and Handley, Res Judicata, pages 116 - 117. Nor is it necessary or appropriate to express any view on the respondent's notice, on which the court has not heard argument.
26. The judge briefly considered and rejected the other grounds relied on in support of the application (legitimate expectation, unfairness and Article 8). He took the view that, in the absence of any estoppel, none of those grounds could assist the appellant. On the facts of this case, as I have recounted them, I agree. The first immigration adjudicator's decision had been set aside and the second made after the decision of the Social Security Appeal Tribunal and after Mr Clements had been told wrongly that the marriage deed had never been challenged as a forgery. Even if there were some satisfactory explanation of why the adjudicator was misinformed in this way, the appellant could not have any legitimate expectation of an earlier decision of a competent tribunal being trumped by the later decision of a tribunal which was has not told the truth. Nor was there any unfairness in the Social Security Commissioner's full and careful decision. Article 8 takes the point no further.
27. For those reasons, I would dismiss this appeal.
28. LORD JUSTICE CLARKE: I agree.
29. LORD PHILLIPS, MR: I also agree.
Order: Appeal dismissed. Taxation of appellant's Community Service Funding.