Kiani v The Secretary of State for the Home Department

Where national security justifies withholding material in proceedings concerning rights protected by EU law, article 47 of the Charter does not invariably require disclosure of the essence of the grounds. Procedural fairness is context-specific.

The court must balance effective judicial protection against national security, consider all material circumstances and limit interference with the protected right to what is strictly necessary. Independent judicial scrutiny and representation by a special advocate may provide sufficient safeguards. A claimant retains the choice whether to continue or withdraw once the tribunal has found that the closed procedure permits a fair trial.

An immigration officer brought employment tribunal claims alleging race and religious discrimination and unfair dismissal after his security clearance was withdrawn and he was dismissed. The respondent relied on national security material which was withheld from him under rule 54 of the Employment Tribunals Rules of Procedure 2004. A special advocate received the closed material but could not take instructions upon it.

The Employment Tribunal held that the closed material procedure was compatible with article 6 of the Convention and refused to revoke or vary its orders. The Employment Appeal Tribunal dismissed the officer’s appeal in UKEAT/0009/14/DM.

The issues before the Court of Appeal were whether EU law invariably required disclosure of the essence of the grounds, whether the tribunal had performed the necessary balancing exercise, and whether the tribunal rather than the claimant had to decide whether the claim should continue.

1. Appeal dismissed. Article 47 of the Charter did not establish an absolute requirement that the essence of the grounds be disclosed in every case involving an EU law right. The guarantees of procedural justice under EU law and the Convention shared the same general, context-sensitive approach. The ruling in ZZ (CJEU) concerned the particular provisions governing restrictions on Union citizens’ rights of movement and residence. Those provisions included a right to receive precise and full reasons, subject to a strictly construed national-security derogation. The ruling therefore did not create a universal disclosure rule.
2. Where information is withheld for national-security reasons, the court must balance the requirements of state security against the right to effective judicial protection. Any interference must be limited to what is strictly necessary, and the assessment must take account of all the material circumstances. The right to a fair hearing is absolute, but its constituent procedural elements, including disclosure, are context-dependent.
3. The Employment Tribunal had performed the required balancing exercise. It considered the closed material, recognised that it formed the essence of the respondent’s case and concluded that a closed procedure, judicial scrutiny and representation by a special advocate could provide justice. The tribunal’s open reasons were sparse, and fuller reasons might have been preferable, but they sufficiently disclosed a balanced and legally directed decision.
4. The tribunal was entitled to find that a fair trial remained possible and then leave the claimant to decide whether to continue or withdraw. At the case-management stage it could not assess the merits or prospects of the discrimination claim. Carnduff v Rock did not require the tribunal to decide whether a reasonable claimant would discontinue.
5. The applicable EU law was clear. The court refused the requested preliminary reference to the CJEU.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2015] EWCA Civ 776. The court upheld the Employment Appeal Tribunal’s conclusions on disclosure, procedural balancing and the claimant’s decision whether to continue.
2. Employment Appeal Tribunal: Langstaff J dismissed the appeal in UKEAT/0009/14/DM by a reserved judgment dated 21 November 2014.
3. Employment Tribunal: Employment Judge Snelson held on 23 August 2013 that the orders under rule 54 of the Employment Tribunals Rules of Procedure 2004 were compatible with article 6 of the Convention and refused to revoke or vary them.