Mosaraf Hossain & Ors v The Home Office

After an issue-estoppel ruling, a defence must not directly or indirectly allege that a claimant committed the estopped misconduct. It may describe the evidence available to the defendant at the relevant time, and how that evidence appeared, where relevant to reasonableness, lawfulness or causation.

Under the common-law rule in Hollington v Hewthorn, findings made by another decision-maker cannot be used in later proceedings as evidence of the facts found. The same applies where guidance is predicated on those findings. The rule does not exclude the underlying evidence or expert concessions before the earlier tribunal. Each passage must be read in context, distinguishing neutral evidential pleading from an allegation or implication of participation, knowledge or fraud.

The judgment determined the Home Office’s paper applications dated 6 July 2026 to amend its Defences in claims by Mosaraf Hossain (C2), Naveed Khan (C6) and Ashiqur Rahman (C11). It followed the Main Judgment of 10 June 2026, [2026] EWHC 1413 (KB), which held that issue estoppel prevented allegations that C6 and C11 had obtained TOEIC results by fraud, while C2 had not established abuse of process.

The applications raised objections that draft amendments either repeated those allegations or relied on factual findings made by Upper Tribunal Presidential Panels, including DK and RK and Varkey. The central questions were which passages could remain, whether Hollington v Hewthorn barred reliance on prior findings, and how the Defences should be redrafted.

Disposition. The applications were not determined by a piecemeal order. Some amendments were permissible, others were impermissible in their existing form, and the Defendant was directed to file and serve revised draft Amended Defences for approval.

1. Issue estoppel. In relation to C6 and C11, the earlier issue-estoppel ruling barred any direct or indirect pleading that they had obtained their TOEIC results by fraud. That included putting the allegation to proof, or alleging awareness of or participation in fraud. A passage could nevertheless describe the evidence available to the Defendant and its apparent significance at the material time when relevant to reasonableness, lawfulness or causation. The court assessed the wording in context: narrative explanations and neutral references to what a claimant claimed, or to how evidence appeared, were capable of being permissible.
2. Prior findings. The rule in Hollington v Hewthorn prevented reliance on factual findings made by the Upper Tribunal in DK & RK [2022] UKUT 112 IAC and Varkey as evidence that the facts found were true in these proceedings. The result was the same where the pleaded reliance was put in terms of guidance, because the guidance was based on the underlying findings. The rule did not prevent reliance on the evidence placed before those tribunals, including expert concessions. Whether later material was relevant to the claims, or was available to the Defendant at the relevant time, was left for another stage.
3. C2 and case management. The court dealt with C2’s objections on their substance rather than requiring a further strike-out application, since the parties had addressed the issues and a further application would cause delay and additional costs. The Defendant must submit revised drafts reflecting both judgments. The Claimants may make written objections limited to those rulings, the Defendant may respond, and approval will be decided on the papers. The Claimants may then amend in response if advised. Costs were reserved.

High Court (King’s Bench Division): The judgment records the earlier Main Judgment of 10 June 2026, [2026] EWHC 1413 (KB) , and determines consequential applications to amend the Defences. No appeal is described.