R (Nahar) v Secretary of State for Work and Pensions; R (on the application of Nahar) v Social Security Commissioners
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY |
| Judgment Date | 21 December 2001 |
| Neutral Citation | [2001] EWHC 1049 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2000/2001 |
| Date | 21 December 2001 |
[2001] EWHC 1049 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
MR JUSTICE MUNBY
QUEEN'S BENCH DIVISION
The Hon Mr Justice Munby
CO/2000/2001
Mr Roger André (instructed by Messrs Farringdons) appeared on behalf of the claimant Shamsun Nahar
Mr Tim Ward (instructed by the Office of the Solicitor, Department of Work and Pensions) appeared on behalf of the Secretary of State for Work and Pensions (formerly Social Security) and the Social Security Commissioners
December 2001
This application for judicial review brought with permission granted by Maurice Kay J on 3 July 2001 raises a point of law which is of very considerable importance to government and on which there appears to be surprisingly little authority. It engages some fundamental constitutional questions: What is the Crown? What is the Government? In what capacity does a Minister of the Crown act? What is the relationship of a Minister of the Crown both to the Crown and to another Minister of the Crown?
In relation to all these matters I have been greatly assisted by Mr Roger André who appeared before me on behalf of the claimant, Shamsun Nahar, and Mr Tim Ward who appeared on behalf of the Secretary of State for Work and Pensions (formerly Social Security) and the Social Security Commissioners.
The facts
The facts so far as I need to examine them at all are uncontroversial and shortly stated.
The claimant was born in what is now Bangladesh on 15 December 1930 and is thus now just 71 years old. She asserts, and has at all material times asserted, that on 9 March 1952 in Bangladesh she married one Abdul Kadir, the marriage being in accordance with Muslim tradition and practice. It is that assertion which has given rise to all the litigation which I must shortly describe. There is no marriage certificate as such but the claimant relies upon a document which purports to be a marriage deed written in Bengali and dated 25 Falgun 1359 BC, corresponding to 9 March 1952 AD, and which I shall refer to as the marriage deed.
Mr Kadir came to this country in 1957. On 8 August 1961, describing himself as a bachelor, he married in this country a woman who I shall refer to as BB. On 26 July 1962 Mr Kadir applied for citizenship: in his application form he described the claimant as his wife. On the faith of that application he was registered as a citizen on 29 August 1962. On 31 March 1965 Mr Kadir had a son by BB. On 27 June 1967 he had another son again by BB. On 10 December 1967 he had a son by the claimant. This son, who I shall refer to as M, was born in Bangladesh. From 1968 to 1985 all three children lived with the claimant in Bangladesh. In 1976, so it is said, Mr Kadir divorced BB. He died in Bangladesh on 6 May 1985.
The litigation
On 11 January 1993 solicitors acting on behalf of the claimant wrote to the Department of Social Security as it then was asserting her claim to be entitled to a pension as Mr Kadir's widow. Very shortly after that, on 2 February 1993 the claimant and M applied for entitlement to enter this country as respectively the wife and son of Mr Kadir. They were refused entry by the Entry Clearance Officer at Dhaka.
On 4 August 1995 the claimant's solicitors made a formal claim on her behalf to the Benefits Directorate for a widow's pension. On 13 November 1995 the department asked the claimant to supply certain information. She was interviewed at the British High Commission in Bangladesh on 17 January 1996 by the pensions liaison officer. Her claim was refused by an Adjudication Officer on 8 November 1996, though the decision was not in fact issued until 7 March 1997. An appeal to the Social Security Appeal Tribunal was made by letter dated 19 March 1997. On 22 October 1997 the Tribunal adjourned the hearing after the claimant's representative produced the marriage deed.
In the meantime the appeal by the claimant and M against the decision of the Entry Clearance Officer had been allowed by an Adjudicator, Mrs R N Mannion, on 22 July 1997. This followed a hearing on 25 June 1997 at which the Entry Clearance Officer was represented by Mr P Deller, a Home Office presenting officer. The marriage deed was before the Adjudicator. In the course of her written determination and reasons the Adjudicator said this:
"[H]aving seen the original marriage deed relating to the marriage of the [claimant] and the late Abdul Kadir, [Mr Deller] accepted the document as genuine."
On 13 November 1997 the Principal Adjudication Office of the Department of Social Security submitted the marriage deed for examination by Mr Graeme Marrs, a document examination officer in the Pensions & Overseas Benefits Directorate of the Department of Social Security. Mr Marrs produced a report the same day in which he expressed the opinion, giving reasons for his conclusion, that it was "highly unlikely" the marriage deed was issued in 1952.
On 27 February 1998 the Social Security Appeal Tribunal refused the claimant's appeal, having "found on the balance of probabilities that it had not been established that a valid marriage had been contracted between the [claimant] and Abdul Kadir". The Tribunal's full reasons were issued on 1 June 1998. Referring to the expert's opinion the Tribunal described the marriage deed as "suspect". The Tribunal mentioned that the claimant's solicitor had "referred to the decision of the adjudicator of 22 July 1997" and went on to record the presenting officer's riposte that that decision had been "based on the supposed validity of the marriage certificate". The Tribunal concluded on the balance of probabilities that the marriage deed was a forgery.
In the meantime, the Entry Clearance Officer had made an application to the Immigration Appeal Tribunal seeking leave to appeal against the Adjudicator's determination. On 30 March 1998 the Tribunal allowed the appeal and remitted the matter back for a new hearing. That hearing took place on 7 December 1998 before another Adjudicator, Mr M A Clements. The Entry Clearance Officer was again represented by a Home Office presenting officer, on this occasion Mr Saunders. The claimant and M were represented by counsel, Mr Syed. The Adjudicator, like Mrs Mannion before him, was shown the marriage deed. He seems not to have been told about Mr Marrs's opinion, though Mr Saunders in the course of his submissions described the marriage deed as "unreliable". Mr Syed asserted, apparently without contradiction, that the marriage deed "has never been questioned as a forgery". On 1 February 1999 the Adjudicator gave his written determination and reasons: like Mrs Mannion before him, he again allowed the appeals by the claimant and M and upheld the claimant's claim to have been the wife of Mr Kadir.
The Entry Clearance Officer again applied to the Immigration Appeal Tribunal for leave to appeal. On 6 May 1999 the Tribunal (Mr R G Care) dismissed the application and refused the Entry Clearance Officer leave to appeal. At that point the Entry Clearance Officer and the Home Office admitted defeat. The claimant's entitlement to enter the United Kingdom was certified by the Entry Clearance Officer. The claimant arrived in the United Kingdom, where she is now settled, on 25 October 1999.
In the meantime, on 3 September 1998 the claimant had applied to the Chairman of the Social Security Appeal Tribunal for leave to appeal. The grounds of appeal made no reference to the Adjudicator's decision on 22 July 1997. The application was refused on 15 March 1999. On 28 April 1999 the claimant applied to a Social Security Commissioner for leave to appeal against the decision of the Tribunal. Amongst the grounds of appeal complaint was made of the fact that, so it was said, the Tribunal had erred in law in ignoring or not giving adequate consideration to the determinations of the Adjudicators on 22 July 1997 and 1 February 1999.
The claimant's solicitors asked the Commissioner to stay the proceedings until the Immigration Appeal Tribunal had reached a decision —which it did, as I have said, on 6 May 1999. However, it appears from a letter from the Court Service dated 31 May 2000 that the file was then lost and had to be re-constructed. Be that as it may, in the event the application for leave to appeal came before a Social Security Commissioner, Mr Commissioner Jacobs, for oral hearing on 27 February 2001. On 1 March 2001 he refused the claimant leave to appeal against the decision of the Social Security Appeal Tribunal on 27 February 1998.
The Commissioner considered the decisions of the two Adjudicators. Of Mrs Mannion's decision he commented:
"It was obviously influenced by the way the case was argued by the presenting officer for the Entry Clearance Officer".
He observed, correctly, that the hearing before Mr Clements had taken place after the hearing before the Social Security Appeal Tribunal, "So it cannot be faulted for not considering it." In answer to the claimant's argument that there had been a denial of natural justice he said:
"[The claimant's solicitor] argued that the tribunal failed to accept or consider the decision of the immigration adjudicator. The first adjudication was in evidence. It was only persuasive, not conclusive. Also, it was so expressly dependent on the way the case was presented on behalf of the Entry Clearance Officer that the tribunal obviously had to make its own assessment of the evidence."
The judicial review proceedings
On 18 May 2001 the claimant applied for judicial review of Mr Commissioner Jacobs' decision on 1 March...
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