Nahar, R (on the application of) v Social Security Commissioners & Anor

Inconsistent decisions by separate public bodies do not, without more, create an estoppel in favour of a claimant. Where a competent tribunal has already decided an issue before a later de novo hearing elsewhere, issue estoppel cannot be used to make the later decision prevail. A decision set aside on appeal cannot be retrospectively reinstated, and a failure to challenge evidence at the earlier hearing does not create an estoppel surviving that setting aside. In the absence of estoppel, legitimate expectation, unfairness and Article 8 provided no assistance on the facts.

Shamsun Nahar claimed to be the widow of Abdul Kadir and sought both entry to the United Kingdom and a widow’s pension. The immigration authorities and the social security authorities reached inconsistent conclusions about the validity of the alleged marriage. An immigration adjudicator initially allowed the immigration appeal, but that decision was set aside. The social security appeal tribunal dismissed the pension appeal. At a later de novo immigration hearing, the adjudicator allowed the appeal after being wrongly told that the marriage deed had never been challenged as a forgery.

The Social Security Commissioner refused permission to appeal, and Munby J dismissed the application for judicial review. The central issue before the Court of Appeal was whether issue estoppel, legitimate expectation, unfairness or Article 8 required the social security decision to give way to the later immigration decision.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Robert Walker gave the first judgment. The Master of the Rolls and Lord Justice Clarke agreed.

1. Issue estoppel. Reliance on issue estoppel per rem judicatam was misconceived. When the second immigration adjudication took place, the Social Security Appeal Tribunal had already decided the relevant issue and published its reasons. Any estoppel would therefore have operated against the appellant by reference to the earlier social security decision, rather than in her favour by reference to the later immigration decision.
2. Effect of the rehearing. The second immigration adjudication was a hearing de novo. It could not retrospectively reinstate the first adjudicator’s decision, which had been set aside on appeal. The presenting officer’s failure to challenge the marriage deed at the first hearing could not create an estoppel that survived the setting aside of that decision.
3. Other grounds. In the absence of estoppel, the grounds of legitimate expectation, unfairness and Article 8 could not assist. There could be no legitimate expectation that an earlier decision of a competent tribunal would be displaced by a later decision made after the adjudicator had been wrongly informed that the marriage deed had never been challenged. The Social Security Commissioner had given a full and careful decision, so there was no unfairness in the process. Article 8 took the matter no further.
4. The court declined to express a view on the wider reasoning in Munby J’s judgment or on the respondents’ notice, which had not been argued. The appeal was dismissed, with taxation of the appellant’s Community Service Funding.

• Court of Appeal (Civil Division), [2002] EWCA Civ 859: dismissed the appeal.
• Administrative Court: Munby J dismissed the application for judicial review on 21 December 2001.
• Social Security Commissioner: refused permission to appeal on 1 March 2001.
• Newcastle Overseas Social Security Appeal Tribunal: dismissed the pension appeal on 27 February 1998 and refused permission to appeal on 15 March 1999.