In a really interesting case, the High Court has held that issue estoppel prevents His Majesty’s Passport Office from refusing to issue a passport to an applicant, because of a finding made by the First-tier Tribunal that he is, in fact, British, despite the lack of evidence. That case is Islam, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 1838.

Background

Mr Moynul Islam’s paternal grandfather moved from what is now Bangladesh to the UK in 1959 and registered as a “citizen of the UK and colonies” in 1964.

Mr Islam’s father was born in Bangladesh and by virtue of the 1948 Act, was a citizen of the UK and colonies by descent. He moved to the UK in 1981 and became a British citizen by descent on 1 January 1983, by virtue of the British Nationality Act 1981.

His parents married in 1994 and Mr Islam’s mother applied for a spouse visa to join her husband in the UK. Mr Islam was born in Bangladesh in 1995 and the family requested that he be added to his mother’s spouse application.

In February 1997 the spouse application was granted. On 13 April of the same year the Home Office issued a Certificate of Entitlement (reflecting a right of abode) on Mr Islam’s mother’s passport and endorsed Mr Islam’s name and date of birth on that certificate. To be clear, the only way he could have qualified for a Certificate of Entitlement in his circumstances is if Mr Islam was a British citizen.

In August 1997, Mr Islam travelled to the UK with his mother and he has been resident here ever since.

In September 2018, the Home Office decided to deport Mr Islam due to his criminal convictions, which was obviously not possible if he was British. Mr Islam appealed the deportation order to the First-tier Tribunal, primarily on the basis that he was British.

His appeal was successful on the sole ground that the Tribunal found that he was a British citizen. The Home Office, for reasons that are still unclear, did not attempt to appeal this decision.

In January 2023, Mr Islam applied for a British passport, primarily relying on the First-tier Tribunal decision. On 9 March 2023, this application was refused on the basis that the passport office was not satisfied that he was a British citizen.

Mr Islam filed an application for judicial review on 13 June 2023.

First-tier Tribunal

It’s worth laying out the main thrust of the First-tier Tribunal’s conclusions in full:

Is the Appellant a British Citizen?

14. I am satisfied that if the appellant is able to persuade me, on the balance of probabilities, he is a British Citizen the respondent has no power to deport him (s.5 and 6 of the Immigration Act 1971).

15. It is not disputed that the Certificate of Entitlement issued to the appellant and his mother on 13 April 1997 was validly issued. I am satisfied that in accordance with s.3(9) of the Immigration Act 1971 this is evidence that he had a Right of Abode at that time. Mr Chirico submits that this is also evidence that it was accepted that the appellant was a British Citizen at that time, because, simply put, he would not have been issued with the Certificate otherwise. Mr Chirico directed my attention to s.2(1) of the Immigration Act 1971 to corroborate this submission:

‘2 Statement of right of abode in United Kingdom

(1) A person is under this Act to have the right of abode in the United Kingdom if –

(a) he is a British citizen; or

(b) he is a Commonwealth citizen who –

(i) immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and

(ii) has not ceased to be a Commonwealth citizen in the meanwhile.’

16. I am satisfied that Mr Chirico’s submission is correct in this respect. I am satisfied that the Immigration Act 1971 clearly states that a person has a Right of Abode in the UK in one of two circumstances; they are either a British Citizen or a Citizen of the Commonwealth. The appellant clearly was not a Citizen of the Commonwealth and therefore the only other conclusion that I find I can reach is that he was a British Citizen and the decision to issue a Certificate of Entitlement was an acknowledgment of this status.

17. I am satisfied that the Certificate of Entitlement did not confer status on the appellant but simply proof of his status which therefore enabled him to enter the UK. The expiration of his mother’s passport (and the consequent expiration of the Certificate of Entitlement) did not therefore affect the appellant’s status as a British Citizen.

18. I am therefore satisfied that the appellant was a British Citizen in 1997 and continues to be a British Citizen at this time. He is not therefore liable to deportation.

Effectively, it found that as Mr Islam had been issued with a Certificate of Entitlement, he must have been acknowledged as a British citizen, or it would not have been issued. By extension, the judge found that he must have thus been a British citizen, as he was issued a Certificate of Entitlement.

It’s worth pointing out that it seems that part of Mr Islam’s case is that he could have acquired British citizenship by way of registration, though it doesn’t appear as though there was any conclusive evidence of this and it did not form part of the tribunal’s conclusion.

Judicial Review

Mr Islam’s claim here was quite straightforward: by refusing to issue him with a passport despite the First-tier Tribunal’s finding that he was a British citizen, the Home Secretary acted unlawfully.

The Home Secretary, on the other hand, denied that there was issue or cause of action estoppel and at best, this was a case of fact estoppel. If this argument was accepted by the court, it would essentially mean that while there may be a finding of fact in the First-tier Tribunal’s decision that might be difficult to challenge, the central issue in the present case had not been decided there and so the Home Secretary would not be prevented from challenging it now.

Separately, the Home Secretary did not believe that Mr Islam is British, as he was born abroad and his father was British by descent, so the lack of reference to the First-tier Tribunal decision is not irrational.

Auerbach J went into a really helpful in-depth look at the caselaw surrounding estoppel and it’s worth bringing up some highlights.

55. In Virgin Atlantic Airways Limited v Zodiac Seats UK Limited [2013] UKSC 46; [2014] 1 AC 460, at [17] and following Lord Sumption JSC (with whose reasoning on this aspect of the appeal all of the other Justices agreed) considered the “portmanteau term” of res judicata, which “is used to describe a number of different legal principles with different juridical origins.” The first was cause of action estoppel. We can pass over the second and third. He continued:

“Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 St Tr 355. “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P 181, 197-198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones.”

And later:

61. In R (on the application of Balhav Singh) v Secretary of State for the Home Department, JR/05767/19, 27 January 2021, Fordham J, deciding an application for judicial review in the Upper Tribunal (Immigration and Asylum Chamber) said, at [33]:

“In my judgment, the commentary of Lord Carnwath in DN (Rwanda) persuasively gathers together relevant passages from relevant authorities, accompanied by observations which constitute a reliable guide for the purposes of the present case. Mr Malik identified no reasoned basis for departing from that analysis, and cited no authority supporting taking such a course. The two essential points for the purposes of the present case, in my judgment come to this. (1) There is a strong role of public policy which establishes that the issue of a determination relating to the legal right of a public authority to take action should be given finality. (2) A court or tribunal in subsequent proceedings in the public law arena may disapply that rule of public policy in the interests of justice, as where material relevant to the correct determination of a point involved in earlier proceedings has become available to a party and could not by reasonable diligence have been adduced in the earlier proceedings.”

The decision

The court held that the finding of the First-tier Tribunal did, in fact, engage issue estoppel, which meant that the Home Secretary was not able to challenge the findings made by that tribunal in the current judicial review proceedings. Although they were factual findings, the reason this is a case of issue estoppel and not just fact estoppel was because the same issue was in play in both cases; namely, is Mr Islam British?

Because the First-tier Tribunal had concluded “yes”, and the Home Secretary had failed to challenge that finding, it was too late now:

100. Overall, notwithstanding these points about the reasoning, I cannot say that the FtT’s conclusion on the citizenship point was plainly perverse or manifestly premised on some error of law. In any event, the Claimant’s contention that he could not be deported because he was a British citizen, and the specific scenario advanced as to how that could have come about by registration, was at the centre of the first of the two ways that the Article 8 challenge was argued before the FtT. The Defendant’s representative had the opportunity to engage with that argument, and to advance the case that it was more likely that there had been a mistake. Further, to repeat, had the Defendant considered the FtT’s decision to be deficient in its reasoning or otherwise wrong, an appeal to the Upper Tribunal could have been pursued. In all those circumstances I do not consider that justice demands that the estoppel should not bite.

The court granted a declaration to the effect that the passport office unlawfully refused Mr Islam’s application for a passport, given that there was an unchallenged finding that he was a British citizen by the First-tier Tribunal.

Conclusion

This was a slightly odd case as based on the facts of the case, the only way Mr Islam could have been a British citizen is if he was registered as such as a child. Going purely off the High Court decision, it doesn’t sound like there was any particularly persuasive evidence of this at any point. Presumably, if he held a registration certificate, this matter would have never reached this stage of litigation. In my view, at least, it seems more like the First-tier Tribunal made a mistake as to his citizenship, in its reliance of the Certificate of Entitlement, and that the Home Office had made a mistake in issuing it.

However, if the Home Office felt this was an error, the time to challenge it was when it received the First-tier Tribunal’s decision, not four years after the fact when Mr Islam quite rightly applied for a British passport.

This decision will perhaps be of limited use to practitioners as it’s relatively rare to have to re-litigate the same issue after a conclusive finding but it’s certainly helpful to know that it’s there for when we need it.