In Home Office v Shah [2025], the EAT provides helpful guidance on the evidence required to be provided when there are asserted risks to national security

The Claimant was an immigration officer with the Home Office whose security clearance was withdrawn leading to his suspension and dismissal. The Claimant alleged this was sex discrimination.

The Respondent relied on sensitive material and an Order was made under rule 94 (as it then was). Special Advocates (“SA”) were appointed who were provided with the detail of the reasons in a CLOSED Grounds of Resistance. Mr Shah was only told that there were national security (“NS”) reasons for the decision, but no further details.

At a Preliminary Hearing (PH), the Employment Judge (EJ) agreed with the SA’s submission that the Claimant should receive a gist of the Respondent’s defence. It was this decision that was the subject of the successful appeal to the EAT.

Whilst the majority of the reasons for both the original PH decision and at the EAT were necessarily in CLOSED, HHJ Auerbach provided an OPEN decision addressing the legal principles and leading authorities including Tariq and Khan.

The concept of gisting is not found in the ET rules but was discussed in Tariq v Home Office [2011] UKSC 35. Whilst Mr Tariq was permitted only a gist of the reasons, the Supreme Court made clear that there cannot be an absolute rule that gisting must always be resorted to whatever the circumstances. It is a question of degree and balancing the competing considerations. HHJ Auerbach noted:

• The ET is not bound, automatically, to “throw its hand in” when the State “plays the security card”. It has a role to play in critically examining that claim;
• The determination of whether something is, or is not, in the interests of NS is for the executive, not the judiciary. Courts still have a role to play including whether there is a factual basis for the Respondent’s opinion.
• In a deportation case, that role is undertaken by SIAC, a specialist court which may be able to make pertinent findings of fact. However, even in SIAC, there must be a considerable margin and real respect for to the Minister’s assessment in the evaluation of risk. The Court should not use findings of fact as a platform for substituting its view of the risk.
• ETs are less well equipped to make such evaluations than a body like SIAC and should recognise this when approaching the task of assessing risk.

Ultimately, the appeal was successful because:

• Whilst right to reject the argument that it was enough for the Respondent to merely assert that the gist would give rise to NS risk, the EJ overstepped the mark by suggesting it was “necessary” for the ET to consider whether providing a gist would cause harm and the degree of such harm. This adopted an evaluative role, which did not recognise the limit of the ET’s role.
• The EJ’s reasoning was flawed in stating that there was “no evidence” (particularly no witness statement) in respect of the asserted NS risk. The EAT noted that there was evidence when the rule 94 Order was first made, and that witness evidence had not been directed for the PH. Further, the Respondent had addressed the issue in both written submissions and documentary evidence. That evidence including a signed letter from a relevant individual addressing the risk that providing a gist posed to NS, a document prepared for the SVAP proceedings, and the CLOSED SVAP decision which referred to material that was before it.

HHJ Auerbach noted that in opposing a request from a Special Advocate for a gist, there ought to be some kind of statement and/or documentary material. However, account must be taken of the realistic practicalities as to the extent to which hard evidence of risk can be presented to an ET. In this forum, there is no reason why a signed letter is insufficient.

The EAT Judge has invited further submissions as to whether he should remit the question to the ET or whether he can substitute his own decision.