Court of Appeal ruling likely to increase the use of secret courts and damage open justice

Wednesday 22 July 2015

The Court of Appeal has upheld a ruling of an employment judge that Mr Kiani can have a fair trial of his claims for discrimination notwithstanding that he has been told nothing of the grounds for his treatment and the Government's case will be presented entirely in secret. The Appellant had argued that EU law following ZZ (France) v Home Office in the Court of Justice of the European Union confirmed a right of an excluded person to be provided with a summary of the secret allegations where EU rights were at stake. Paul Troop, of Garden Court Chambers, is junior counsel for the Appellant.

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On 21 July 2015, the Court of Appeal handed down a judgment dismissing an appeal brought on behalf of Mr Kiani, who on 19 March 2008 was suspended from duty as an Immigration Officer at the Home Office and subsequently dismissed in 2010.

This case has been reported in the media, including the Independent and the Bureau of Investigative Journalism.

Mr Kiani was initially informed that his suspension was pending review of his security vetting status from the Deputy Departmental Security Officer ('DDSO'), however, on 27 June 2008 his security clearance (at all levels) was revoked with immediate effect on the basis that he no longer met the requirements set out in HM Government vetting policy, however, no substantial explanation for this has ever been advanced.

Mr Kiani appealed to the Permanent Secretary of State for the Home Office, Sir David Normington, on 12 July 2008. The appeal was unsuccessful.

On 24 December 2009 and 20 October 2010, Mr Kiani lodged Employment Tribunal claims alleging discrimination on the grounds of race and religion and unfair dismissal, respectively. The Secretary of State averred that the decision was made for reasons of national security despite Mr Kiani's case that he was subject to unlawful discrimination.

At a Case Management Discussion on 10 February 2012, Employment Judge Potter made interim orders that Mr Kiani and his representatives be excluded from secret hearings, which would be regarded as closed, and that the secret material should not be disclosed to Mr Kiani or his representatives.

On 14 September 2012, Mr Kiani applied to the Employment Tribunal for an order to address the lack of substantive disclosure from the Home Office and the extent to which his Right to a Fair Trial, guaranteed under Article 6 of the European Convention on Human Rights ("The Convention") had been complied with. A further closed Case Management Discussion was held on 18 October 2012, from which again Mr Kiani and his legal representatives were excluded. At this hearing, EJ Potter dismissed Mr Kiani's application for a 'gist' of the evidence.

An open Case Management Discussion was held by EJ Snelson on 09 July 2013 at which EJ Snelson held that the Orders were compatible with the European Convention on Human Rights and therefore refused to revoke or vary the Orders of EJ Potter.

In response, Mr Kiani appealed EJ Snelson's decision to the Employment Appeal Tribunal. Mr Kiani submitted that, in a case which came within the remit of EU law the focus should not be on the Convention, rather it should focus on EU law. Mr Kiani argued that following the case of ZZ (France) v Secretary of State for the Home Department (Case C - 300/11) [2013] QB 1136, EU law required a minimum 'gist' of the case to be given to the party excluded from closed proceedings. Mr Kiani stated that since this had not occurred in his case, the appeal should be allowed. However, the appeal was dismissed by Langstaff J on 21 November 2014.

With Langstaff J's permission, Mr Kiani appealed the decision to the Court of Appeal on the following grounds:

  1. The Employment Appeal Tribunal failed to apply the principle in ZZ, namely that Mr Kiani was entitled to be provided with a 'gist' of the case against him and that this gist or essence of the case is the minimum level of disclosure that must be given;
  2. There was insufficient material to justify the Employment Appeal Tribunal to conduct a balancing exercise which was compliant with EU Law and the Convention; and
  3. The Employment Tribunal was obliged to make its own assessment of whether a fair trial was possible rather than deferring this to Mr Kiani in circumstances where he was in no such position to make such an assessment.

The appeal was heard by the Master of the Rolls LJ Dyson, LJ Lewison and LJ Richards on 06 July 2015. The Court of Appeal dismissed all three grounds of appeal in their judgement handed down on 21 July 2015. The Court also refused to refer Mr Kiani's case to the Court of Justice of the European Union for a determination of the EU law within his case.

Mr Kiani remains excluded from his own case and has not been provided with any evidence nor a gist of the information held against him.

Mr Kiani has stated that, if the Home Office had a significant or substantive claim against him, they should charge him with an offence. In the absence of this, the reasons for his treatment and dismissal are discriminatory. Therefore it is vital that Mr Kiani be granted access to the evidence and or "gist" held to not only see what accusations have been levied against him, but to enable him to engage fairly in proceedings.

The impact of this decision is likely to see the frequency of the use of secret closed hearings increase, irreparably damaging fairness and access to transparent justice in the UK.

Shazia Khan, Partner at Bindmans LLP who represented Mr Kiani said:

"We are extremely disappointed by this Judgment. Ultimately, working as an Immigration officer was a vocational career that my client envisaged would continue up until his retirement. Being sacked in these circumstances is inexplicable and continues to have an immense and detrimental affect on my client. We condemn the UK Government's increasing use of secret courts dispensing secret justice which flies firmly in the face of the rule of law. It is now over 7 years since my client was labelled a threat to national security, despite his many requests to the Secretary of State for particulars of the allegations against him none have been forthcoming. The UK Government's continued insistence that my client argue his case in the dark without providing him with a core minimum of the evidence against him is at best farcical".

Mr Kiani was represented by Shazia Khan of Bindmans LLP, Leading Counsel Hugh Southey QC of Matrix Chambers and Junior Counsel Paul Troop of Garden Court Chambers. Paul Troop specialises in human rights and civil liberties and is a member of the Garden Court employment and international teams.

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