Mosaraf Hossain & Ors v The Home Office

Issue estoppel applies to factual findings made by the First-tier Tribunal in immigration proceedings, including findings that an individual did not obtain a TOEIC result fraudulently. The narrow exception recognised in Arnold v National Westminster Bank Plc is not engaged merely because later Upper Tribunal decisions alter the approach to generic evidence or make a different outcome possible. A party seeking to rely on new evidence must show that it could not reasonably have been obtained earlier and that it would have materially influenced the result. Takhar v Gracefield Developments Ltd does not remove those requirements where the later proceedings seek to relitigate an issue already decided. Abuse of process requires a previous determination for the Henderson v Henderson form of abuse, and otherwise requires conduct sufficiently objectionable to justify striking out the case.

Three linked High Court claims sought damages and declaratory relief arising from immigration decisions based on allegations that the claimants had cheated in TOEIC tests. Two claimants, C6 and C11, successfully appealed to the First-tier Tribunal, which found that fraud had not been established. The Home Office did not appeal. The third claimant, C2, obtained leave to remain before his scheduled rehearing, so no tribunal decision was made on whether he had cheated.

The Home Office sought to rely on later Upper Tribunal decisions, including DK and RK (ETS: SSHD evidence: proof) India and Varkey and Joseph (ETS – Hidden rooms), and on later expert evidence. The issues were whether issue estoppel or abuse of process prevented reliance on the fraud allegations.

1. C6 and C11: issue estoppel. The First-tier Tribunal decisions finally determined that the Home Office had not proved that C6 or C11 obtained their TOEIC results by fraud. The Home Office was therefore precluded from advancing that allegation unless a recognised exception applied.
2. Later tribunal guidance. DK and RK involved both factual findings about generic TOEIC evidence and guidance intended to be followed by the First-tier Tribunal. The subsequent Court of Appeal authorities confirmed its significance within the immigration tribunal system. It did not, however, prescribe the result in any individual case.
3. No Arnold exception. The later decisions did not produce the clear, binary change in law contemplated by Arnold. The Upper Tribunal’s factual findings would not be admissible at trial in the High Court under the rule in Hollington v Hewthorn & Co. Even if the later guidance were considered, it only made a different outcome possible and required a fact-sensitive assessment.
4. The Home Office had been able to appeal the First-tier Tribunal decisions but chose not to do so. That failure, the passage of many years, and the resulting evidential prejudice weighed strongly against reopening the findings. No special circumstances sufficient to displace finality were established.
5. New evidence. The expert concessions relied on could have been obtained with reasonable diligence earlier. They were only a small part of the later Upper Tribunal reasoning and were not shown likely to have had an important influence on the outcome. The same applied to C6’s earlier test scores, which the Home Office could have obtained before the First-tier Tribunal hearing. Takhar concerned setting aside a judgment for fraud, not relitigating an issue already decided, and did not assist the Home Office.
6. C2: abuse of process. C2’s appeal was never determined. The grant of leave to remain, made pursuant to the Parliamentary Statement, did not amount to a settlement or concession that he had not cheated. The Henderson v Henderson form of abuse therefore did not apply. Nor was the conduct otherwise sufficiently objectionable to meet the high threshold for striking out.
7. The Home Office was prevented from relying on the fraud allegations against C6 and C11. C2 failed to establish abuse of process. The parties were directed to consider which pleading passages should be struck out and consequential matters, including costs.

First-instance decision. The judgment records earlier First-tier Tribunal decisions concerning C6 and C11, both of which allowed their appeals and were not appealed by the Home Office. C2’s appeal ended without determination after leave to remain was granted.