News

06/06/2025

EAT clarifies correct approach to “gisting” of information in national security cases: Home Office v Shah [2025] EAT 75

News, Employment & discrimination

The EAT handed down judgment this week in Home Office v Shah, setting out useful guidance on the principles that should be applied by Employment Judges when dealing with requests for information to be provided to a Claimant about the nature of a Respondent’s CLOSED defence to their claim (within proceedings under the national security rules of procedure).  

Factual Background

Mr Shah was an Immigration Officer, who was suspended and ultimately lost his job after his security clearance was withdrawn. ​He claimed this decision was due to sex discrimination, which the Respondent, the Home Office, denied. In its OPEN Grounds of Resistance, the Respondent said there were national security reasons for the decision it took but did not assert a positive case as to what these were. The Employment Tribunal ordered a partially CLOSED procedure and made an order under what is now rule 93 of the ET Rules of Procedure, meaning that the Claimant would be excluded from at least part of the hearing of his claim and would not see at least part of the evidence. Special advocates were appointed for Mr Shah and the Respondent set out the full national security reasons behind its decision in CLOSED Grounds of Resistance that were viewed by the special advocates but not by Mr Shah.

Tribunal’s Decision

Upon an application by the special advocates at a Preliminary Hearing, the ET ruled that Mr Shah should receive a gist of the Respondent’s defence, an order which the Respondent appealed. The substantive reasons for making such an order were set out in CLOSED.

The Respondent’s appeal focused on whether the ET had properly applied the relevant test when deciding on whether a gist should be ordered, applying Article 6 of the European Convention on Human Rights, and following previous cases such as Tariq v Home Office [2011] UKSC 35. The Respondent had argued, amongst other things, that the Tribunal had failed to recognise that it was for the executive (not the judiciary) to assess the existence and degree of risk to national security.

The EAT’s Decision

Despite much of the EAT’s decision being in CLOSED, an OPEN judgment was published which does deal with the correct approach for ET’s when considering applications for gists in national security proceedings. The judgment deals with the crucial question of what level of scrutiny needs to be applied to assertions of national security risks by the executive.

HHJ Auerbach began by considering the cases of Tariq v Home Office and Kiani v Secretary of State for the Home Department [2015] EWCA Civ 776, noting that it was clear that neither Convention rights nor European Union law require a gist to be provided in every case. Rather, the decision whether or not to direct a CLOSED procedure, or a gist, involves striking a balance between the conflicting interests of a Claimant and the State, how that balance is to be struck in the given case is fact and context specific. The following principles were noted about the nature of this balancing test:

On the state’s side of the scales is the harm, or risk of harm, to national security. Whilst the risk to national security interests need not necessarily always outweigh or trump the countervailing risks or harms to a claimant’s ability to prosecute their claim, there should be a heavy weighting in the scales accorded to the harm or risk of harm to national security.

On the Claimant’s side of the scales, where what is at stake is the right to a civil remedy (damages for discrimination) this will weigh less heavily than cases where what is at stake is the liberty of the subject.

On the level of scrutiny to be applied, the EAT found that it is not enough for the Respondent merely to assert that providing the gist would give rise to a risk to national security. The EAT found that a Tribunal is not simply bound automatically to ‘throw its hand in’ when the state ‘plays the security card’; it still has some role to play in scrutinising that assertion. In discussing the level of scrutiny the EAT referred to several cases involving the Special Immigration Appeals Tribunal (“SIAC”), including the judgment of the House of Lords in Secretary of State for the Home Department v Rehman [2001] 3 WLR 877. But it noted that ETs are less well equipped to make national security evaluations than a specialist court like SIAC and therefore need to approach the task of assessing the risk with a clear understanding of the inherent limitations in their ability to do so.

HHJ Auerbach ultimately concluded that the appeal should be allowed, identifying several errors in the approach to the ET in the instant case. Those identified in the OPEN judgment include the following points:

• The Employment Judge had overstepped the mark in suggesting that it was necessary for him to consider both whether the provision of the gist might cause any harm and, if so, the degree of harm. That gave the impression of the Judge assuming an evaluative role for himself. That approach would not be confining the ET’s scrutiny to a Wednesbury unreasonable type test, which was the correct approach, nor did it recognise of the limits of the ET’s ability to engage in its own evaluation of the State’s case.
• The Employment Judge had said there was “no evidence” in this case of the Respondent’s stated national security risks. However, the EAT noted that the ET had before it several pieces of evidence, including a signed letter explaining the basis of the security concerns, a document prepared for related proceedings before the Security Vetting Appeals Panel (“SVAP”) explaining why there was a concern that providing the gist would be damaging to national security and the CLOSED SVAP decision, which had itself referred to various material that was before it. However, the Employment Judge had failed to refer to any of this material in his decision. Given that, he had erred in his emphatic reliance on the proposition there had been “no evidence” before him to support the Respondent’s case.

Tom Kirk represented the successful Appellant, the Home Office, led by Adam Tolley KC (Fountain Court Chambers) and instructed by Wesley Tyler of the Government Legal Department.

Read the full open EAT judgment here.