Upper Tribunal provides new guidance on giving evidence from abroad

Thu, 18 Nov 2021

The Upper Tribunal has handed down judgment in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC), updating the guidance in Nare (evidence by electronic means) Zimbabwe [2011] UKUT 443 (IAC) on the giving of evidence from abroad.

In this case, the Appellant, represented by No5's Danny Bazini and Jessica Smeaton had already won his appeal and by the time of the hearing before the Upper Tribunal had been granted entry clearance to the UK. The Tribunal had decided, nevertheless, to proceed with the appeal hearing in order to provide updated guidance on the process to be followed where parties wish to give evidence, make submissions or otherwise participate in the hearing from outside of the UK.

The Tribunal considered four broad issues:

1. whether the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“the Hague Convention”) applied to the immigration tribunal and, if so, the implications of that;
2. whether the position in respect of EU countries had changed post-Brexit; and
3. the significance of a list said to be maintained by FCDO indicating those countries which have no objection to the giving of evidence via video link to the UK; and
4. the process for requesting permission from a foreign state.

The Secretary of State for the Home Department (“SSHD”) argued that the Hague Convention did not apply to immigration proceedings in the UK. Both parties agreed that the Tribunal did not need to make a decision on this point for the purpose of this hearing. Irrespective of whether it applied or not, the parties agreed that there needed to be some mechanism whereby a tribunal could be satisfied that, as a matter of diplomatic relations if nothing else, the relevant foreign state did not object to live evidence being taken remotely by a UK court.

The parties also agreed that in the majority of cases, post-Brexit, the same approach would now apply for countries both within and outside of the EU.

The SSHD confirmed that the list of countries who previously had been said to have given permission, could no longer be relied on and that any such list previously circulated should be disregarded.

In considering how to proceed in obtaining the relevant permission in applicable cases, the Tribunal had regard to the system proposed by the Foreign, Commonwealth and Development Office (“FCDO”). That system is in its infancy but the Tribunal accepted that, if implemented as planned, it would provide a proper, transparent process by which the Tribunal could ensure the permission of the relevant foreign state has been given.

In giving its guidance, the Tribunal confirmed that:

1. permission from a foreign state is necessary before oral evidence can be taken from that state by a court or tribunal in the UK. Such permission is not, however, necessary where only written evidence or oral submissions will be given
2. where there is a real risk that oral submissions made by an unrepresented party will spill over into oral evidence, caution should be exercised and permission sought from the foreign state
3. in any given case where a party wishes to rely on evidence given from abroad, that party will bear the responsibility of ensuring that the necessary permission has been given by the foreign state. That assurance can be obtained through the Taking of Evidence Unit of the FCDO. The Tribunal considered that the procedure to be followed, as set out in the judgment, should be published by the FCDO in a manner that can be easily understood by an individual appellant
4. it would be desirable for the FCDO to publish and maintain a list of those countries who have given the necessary permission
5. any requests for permission from a foreign state should be made on a general basis, without identifying the relevant appellant or witness
6. the individual seeking to rely on oral evidence from abroad must inform the Tribunal of that at an early stage. At that stage, the party will not need to provide a witness statement from the relevant witness but will need to give a gist of the evidence to be given. Consideration will be given to amending the relevant forms used to lodge appeals with the tribunal to provide appellants with the opportunity to provide that indication

Acknowledging the reality of remote hearings since the beginning of the Covid-19 pandemic, the Tribunal agreed that the requirement in Nare for remote evidence to be given from another court or tribunal hearing centre should no longer be followed. The Tribunals are now very used to taking evidence from individuals who join the hearing remotely from their place of work or from their homes.

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