Moynul Islam, R (on the application of) v The Secretary of State for the Home Department

Issue estoppel can apply in public law where a judicial tribunal has finally determined an issue between the same parties and that issue was necessary to its decision. The doctrine is flexible, but its public-policy objectives of finality and certainty mean that compelling circumstances are required before it is displaced. Relevant exceptions may include genuinely new evidence, material changes in fact or law, or fraud. A previous finding remains capable of creating an estoppel even if the later court considers it legally wrong, subject to the interests of justice. A passport refusal based on reopening an estopped nationality issue is unlawful.

The claimant, born in Bangladesh and resident in the United Kingdom since 1997, challenged HM Passport Office’s refusal of his application for a British passport. In earlier deportation proceedings, the First-tier Tribunal had found that he was a British citizen and allowed his appeal. The Secretary of State had not appealed that decision.

The claimant argued that the earlier finding created an issue estoppel, or was a relevant consideration which the passport decision-maker irrationally ignored. He also alleged unlawful interference with his Article 8 rights. The central issue was whether the First-tier Tribunal’s finding could be reopened when deciding the later passport application.

1. Issue estoppel. The First-tier Tribunal’s decision was a judicial adjudication between the same parties, following a contested hearing and remaining unappealed. Its finding that the claimant was a British citizen was an essential link in the reasoning which led to the conclusion that he could not be deported. The issue was therefore precisely the same issue which the Secretary of State sought to reopen.
2. Issue estoppel applies in public law. Unlike cause of action estoppel, it may yield in special circumstances where its application would cause injustice. Possible circumstances include material newly discovered evidence satisfying, ordinarily, the Ladd v Marshall criteria, a material change in facts or law, or fraud. The categories are not closed, but the countervailing circumstances must be compelling.
3. The Secretary of State’s inability to locate registration records did not amount to exceptional new evidence. The relevant arguments and evidence could have been advanced before the First-tier Tribunal, and any alleged error could have been challenged by appeal. The First-tier Tribunal’s reasoning was not so perverse or legally defective that justice required the estoppel to be displaced.
4. The passport refusal relied only on the proposition that the claimant was not British. Since that issue was estopped, the refusal was unlawful. Ground 2 consequently fell away as an alternative ground.
5. The refusal also unlawfully interfered, at least to some degree, with the claimant’s Article 8 rights, having regard to the effects of lacking documentary evidence of his citizenship on his family and domestic arrangements. A declaration concerning the Article 8 rights of his partner and daughter was neither necessary nor appropriate.
6. The decisions of 9 March 2023 and, insofar as it constituted a further refusal, 31 May 2023 were quashed. A declaration was made that the passport application had been unlawfully refused. The court declined to make a freestanding declaration of citizenship because the issue had already been determined by the First-tier Tribunal. By consent, the Secretary of State was required to issue a British passport following a fresh application within 28 days. The Article 8 damages issue was transferred to the County Court and stayed for three months.

The judgment itself was a first-instance judicial review in the Administrative Court. It records that the First-tier Tribunal (Immigration and Asylum Chamber) allowed the claimant’s earlier deportation appeal on 30 December 2019, and that the Secretary of State did not appeal.