On 13 September 2024, the President of the First-tier Tribunal (Immigration and Asylum Chamber), Judge Melanie Plimmer, issued new guidance on taking evidence from abroad. This important guidance identifies the steps required for a party who wishes to adduce oral evidence from an individual situated within a territory of another state. This Presidential Guidance Note No2 of 2024 (link) updates and replaces Presidential Guidance Note 4 of 2022 (link).

If a party wishes to rely on oral evidence from an individual who is located in the territory of a state other than the United Kingdom (see paragraph [6] of the guidance for the definition of the territory of the United Kingdom), judicial permission is always required (paragraph [3] of the guidance). The party must establish to the satisfaction of the Tribunal that the country in question consents; that there is no legal or diplomatic barrier for that course of action; and that it is in accordance with the Overriding Objective, as defined by Rule 2 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, for that evidence to be admitted (see paragraph [5] of the guidance). It is therefore important to consider whether it is necessary for the witness to give oral evidence by reference to the disputed issues or whether these could be adequately addressed by way of interrogatories, and whether delay could be avoided by the witness travelling to a third country where there are no diplomatic objections (paragraph [32] of the guidance).

The party wishing to rely on the oral evidence from abroad should make an application for permission to the Tribunal, on notice to the respondent, at the time of submitting the appeal skeleton argument and appeal bundle (paragraph [11] of the guidance). The guidance makes clear that failure to notify the Tribunal in sufficient time may result in the Tribunal refusing to admit the evidence altogether (paragraph [11]). It also requires the respondent to identify whether she disputes the evidence in question and whether cross-examination will be necessary (paragraph [13]). It also notes that where there is no respondent’s review or the review fails to address this issue, the Tribunal shall proceed on the assumption that the respondent does not dispute the evidence of that witness (paragraph [14]). This change from the 14 days from the date of application afforded to the respondent in the former guidance (at paragraph [21]) is in line with the Practice Statement No1 of 2022 of the then President of the First-tier Tribunal (Immigration and Asylum Chamber), Judge Michael Clements (link).

The application must be supported by inter alia evidence of the citizenship or residence in the overseas country of the individual proposed to give oral evidence from overseas (paragraph [12(d)]) as well as an explanation as to why the evidence is necessary by reference to the issues in dispute in the particular case (paragraph [12(g)]). Notably, there is no need for the application to be directed to the attention of the Resident Judge of the Hearing Centre to which the application or appeal has been allocated, as the former guidance required (at paragraph [19]). The full procedure for such an application can be found at paragraphs [9]-[29] of the guidance.

The starting point to ascertain whether the overseas country consents for the taking of oral evidence within their jurisdiction by the Tribunal and that there are no legal or diplomatic barriers is the guidance from the Foreign, Commonwealth & Development Office (FCDO) titled “Taking and giving evidence by video link from abroad in UK court cases and tribunals”, which provides a list of countries and their stances on the subject (paragraph [9] of the guidance). At the time of writing, this was last updated on 16 August 2024 (link). When the countries have specified that individual permission is required or have not replied to the FCDO’s enquiry, the FCDO may be able to make additional enquiries for a Consular Fee; and the Tribunal may direct the applicant to make an application to the Taking of Evidence from Abroad Unit (paragraphs [17]-[20]) if considered to be in accordance with the Overriding Objective (paragraphs [30]-[31]).

Immigration practitioners are encouraged to read the full guidance. The above is simply a summary of the key points from the guidance and not intended to be legal advice. Susana Ferrín has recently been instructed to advise and make an application following the most recent guidance, which was successful. Should advice or representation be required, please contact the Immigration Clerks.