FIRST SECTION

DECISION

Applications nos. 2428/12 and 18509/13 Afzaal Ahmad KIANI against the United Kingdom and Bilal GULAMHUSSEIN against the United Kingdom

The European Court of Human Rights (First Section), sitting on 3 April 2018 as a Committee composed of:

Kristina Pardalos, President, Ksenija Turković, Tim Eicke, judges and Renata Degener, Deputy Section Registrar ,

Having regard to the above applications lodged on 9 January 2012 and 4 March 2013 respectively,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Mr Afzaal Ahmad Kiani, is a British national, who was born in 1961 and lives in London. His application was lodged on 9 January 2012. He was represented before the Court by Bindmans LLP, a law firm based in London.

2. The applicant in the second case, Mr Bilal Gulamhussein, is a British, Yemeni national, who was born in 1967 and lives in London. His application was lodged on 4 March 2013 He was represented before the Court by Slater & Gordon Lawyers, a law firm based in London.

A. The circumstances of the cases

3. The facts of the cases, as submitted by the parties, may be summarised as follows.

1. Mr Kiani

4. Mr Kiani was employed by the Government as an immigration officer. He was suspended on 18 March 2008 and his security clearance was withdrawn on 27 June 2008. On 27 July 2010, he was dismissed from his employment. No reasons were given for these decisions.

5. On 24 December 2009 and 20 October 2010, the applicant submitted Employment Tribunal ( “ ET ” ) claims alleging discrimination on grounds of race and religion (he is a British Pakistani Muslim) and unfair dismissal. The Government countered that the decisions had been taken for reasons of national security and that he had been dismissed because he no longer had security clearance.

6. At a Case Management Discussion held on 10 February 2012, the ET made interim orders under rule 54 of the Employment Tribunals Rules of Procedure 2004 ( “ the 2004 Rules ” ) that:

(i) the appellant and his representatives should be excluded from the secret parts of the interlocutory hearings which would be regarded as “closed” ;

(ii) secret material should not be disclosed to the appellant; and

(iii) the Attorney General should be informed that it might be appropriate to appoint a special advocate. Rule 54(2) of the 2004 Rules permits a tribunal or Employment Judge, if it or he considers it expedient in the interests of national security, to make orders including that documents are not disclosed to a person who is excluded from proceedings ( “ an excluded person ” ).

7. A special advocate was appointed. In due course, the secret material was disclosed to the special advocate, but he was precluded thereafter from meeting the applicant and taking instructions from him in relation to it.

8. On 27 July 2010 the applicant was dismissed from his employment, no reasons were given.

9. On 14 September 2012, the applicant applied to the ET for an order to determine (i) what orders were required "to address the lack of substantive disclosure by the Respondent"; and (ii) the extent to which his right to a fair trial guaranteed by Article 6 § 1 had been complied with in the orders made.

10. Meanwhile, he also appealed to the Security Vetting Appeals Panel (SVAP) against the removal of security clearance. Pursuant to a direction by SVAP, on 27 July 2012 the Government provided some further information in the following terms:

“ Mr Kiani ’ s wife, Riffiat Kiani, worked for a company called Global Immigration Management Ltd. This company, which has offices in London and Pakistan, specialises in the provision of advice on immigration matters including work permits, British citizenship and immigration appeals. There were concerns that Mr Kiani might abuse his position as an Immigration Officer to assist his wife in her immigration business. ”

11. An open Case Management Discussion was held by the ET on 9 July 2013 to deal with the application of 14 September 2012, and it gave a reserved judgment on 23 August 2013. It held that the orders made under Rule 54 were compatible with Article 6 of the Convention and it refused to revoke or vary them. In reaching his decision, the judge placed considerable reliance on the decision of the Supreme Court in Tariq v. The Home Office ([2011] UKSC 35, [2012] 1 AC 452).

12. The applicant appealed this decision to the Employment Appeal Tribunal (EAT). His appeal was dismissed in a reserved judgment given on 21 November 2014.

13. The applicant appealed to the Court of Appeal, which unanimously dismissed his appeal on 21 July 2015. The Court of Appeal arrived at three conclusions in dismissing to the applicant ’ s arguments. First, it concluded that the decision of the Court of Justice of the European Union in ZZ (France) v. Secretary of the State for the Home Department (C-300/11 of 4 June 2013) did not set out more rigorous standards of disclosure than those derived from Convention principles as identified by the Supreme Court in Tariq v. The Home Office. Second, the ET had proper regard to the closed material and correctly directed itself in law in concluding that it was not obliged to “gist” information to the applicant. Third, it concluded that the ET had acted properly in assessing that the closed material procedure was “appropriate and compatible with the [applicant ’ s] Article 6 rights” and then recalling that the applicant was entitled to withdraw the legal proceedings if he felt disadvantaged. This did not mean that the applicant had been obliged to decide whether a fair trial before the ET was possible.

14. The applicant applied to the Supreme Court who refused his appeal on 5 May 2016 finding that it did not raise an arguable point of law of general public importance.

15. His case was remitted to the Employment Tribunal. The proceedings are pending.

2. Mr Gulamhussein

16. Mr Gulamhussein was employed by the Home Office as an administrative assistant in the immigration service from 15 November 1999. On 17 January 2000 he obtained the security clearance required for the post. On 1 February 2005 his security clearance was suspended and he was suspended from duty. He was informed that this was because of:

“Association with individuals suspected of involvement and support for terrorism overseas, in particular the insurgency in Iraq.”

17. On 21 March 2005 Mr Gulamhussein was informed that the Home Office was minded to withdraw all levels of security clearance. On 4 May 2005 a decision was taken to withdraw all levels of security clearance. On 11 August 2005 his internal appeal was refused. He subsequently appealed to the Security Vetting Appeal Panel (“SVAP”).

18. Those proceedings terminated on 13 July 2011 and Mr Gulamhussein ’ s contract was terminated. Those proceedings are the subject of the Court ’ s decision in Gulamhussein and Tariq v. the United Kingdom (dec.), nos. 46538/11 and 3960/12 , 3 April 2018 .

19. On 4 August 2011 Mr Gulamhussein brought a claim in the Employment Tribunal, alleging direct and indirect race and religious discrimination, and unfair dismissal.

20. The Employment Tribunal consolidated this complaint with others that Mr Gulamhussein had pending before it and extended a Rule 54 Order granted in the context of the earlier proceedings to cover all the proceedings. That order allowed the use of closed material and special advocates.

21. The Employment Tribunal heard the case in open and closed proceedings. Mr Gulamhussein was excluded from the closed proceedings, during which he was represented by a Special Advocate.

22. The Tribunal gave its reserved judgment dismissing the applicant ’ s claims on 25 March 2013, in which the applicant was anonymised.

23. In its judgment, the Employment Tribunal gives an extensive summary of the evidence heard and arguments made in the closed and open proceedings. It found that the applicant had not established a prima facie case of indirect discrimination, concluding that there was no basis for inferring that any of the protected characteristics, including religion, had anything to do with the decision to withdraw security clearance. It also found that there had not been any indirect discrimination as a result of the application of the policies and guidance on security clearance. It considered applicant ’ s claim to have been victimised was “fanciful” and finally concluded that his dismissal from employment was not unfair, but was a proportionate response to the withdrawal of his security clearance which was based on reasonable grounds.

24. The applicant did not appeal.

B. Relevant domestic law and practice

25. A summary of the relevant law and practice can be found in Gulamhussein and Tariq v. the United Kingdom , (cited above, §§ 43-45).

COMPLAINTS

26. The applicants complained under Article 6 § 1 of the Convention that the limitation on their rights to a fair trial through the use of closed proceedings was not justified and the use of special advocates did not counterbalance the unfairness to them.

THE LAW

27. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

28. Article 6 § 1 of the Convention states as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ”

The Court ’ s assessment

29 . The Court observes that Mr Kiani ’ s case is pending before the Employment Tribunal and he has the possibility to appeal any decision of that Tribunal. Therefore, his complaint is inadmissible as being premature and/or on the ground that domestic remedies have not yet been exhausted within the meaning of Article 35 § 1. The Court notes, however, that should the applicant be dissatisfied in the future with the progress or outcome of the domestic procedures, it would be open to him to reintroduce his complaint.

30. As to Mr Gulamhussein, the Court notes that he did not challenge the use of closed material proceedings, nor appeal the decision of the Employment Tribunal. Accordingly, he did not provide the domestic courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 § 1 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see also Gulamhussein and Tariq , § 82 cited above). Accordingly, his application must be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 26 April 2018 .

             Renata Degener Kristina Pardalos              Deputy Registrar President